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United States v. Lopez

United States Court of Appeals, Sixth Circuit

July 10, 2019

United States of America, Plaintiff-Appellant,
v.
Diego Gonzalez Lopez, Defendant-Appellee.

          Argued: January 16, 2019

          Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:17-cr-00062-1-Pamela Lynn Reeves, District Judge.

         ARGUED:

          Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellant.

          Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellant.

          Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellee.

          Before: BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.

          OPINION

          KETHLEDGE, CIRCUIT JUDGE.

         The Executive cannot render unconstitutionally vague a statute that Congress enacted as clear. Here, the government charged Diego Lopez with possessing a firearm as an alien "illegally or unlawfully in the United States[.]" 18 U.S.C. § 922(g)(5)(A). The meaning of that provision is clear enough, but the district court thought that § 922(g)(5)(A) as applied to Lopez was unconstitutionally vague in light of certain administrative guidance from the Department of Homeland Security. We respectfully disagree and reverse.

         In 2012, Secretary Janet Napolitano of the Department of Homeland Security announced in a memorandum that the Department would exercise what she called "prosecutorial discretion" as to certain aliens who had entered this country without authorization as children. Under this program-known as Deferred Action for Childhood Arrivals, or DACA-aliens who met certain criteria could apply for "deferred action," meaning that the Department would defer any removal proceedings against them for a certain period (typically two years, subject to renewal).

         Diego Lopez, along with his family, entered the United States without authorization when he was four years old. Years later, Lopez graduated from high school and applied for deferred action under DACA, which he received in January 2017. Three months later Lopez was arrested for driving under the influence of alcohol. Inside his vehicle officers found a 9mm pistol and a 12-gauge shotgun. Soon thereafter, a federal grand jury indicted Lopez on one count of being an alien in possession of a firearm while illegally or unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5)(A).

         Lopez moved to dismiss the indictment, arguing that, at the time of his arrest, he had not been "illegally or unlawfully in the United States" under § 922(g)(5)(A) and that the statute was unconstitutionally vague as applied to him. The district court held that Lopez had been "illegally or unlawfully in the United States" at the time of his arrest, but granted his motion on the ground that § 922(g)(5)(A) was ...


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