SHEPHERD, Circuit Judge.
Andrew Seay was indicted and pled guilty to possession of a firearm while being an unlawful user of, or addicted to, a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and was sentenced by the district court
In March 2008, Seay was on probation as a result of a South Dakota conviction for distribution and possession with intent to distribute marijuana. On March 7, 2008, state law enforcement officers conducted a probation search of Seay's vehicle and residence, during which they found marijuana in Seay's vehicle and residence, and four firearms—two pistols and two shotguns—in Seay's residence. Seay's roommate told the officers that he and Seay used the shotguns for hunting. Seay denied that the pistols belonged to him. Seay was arrested on state charges based on the items found in the search. Following his arrest, Seay provided a urine sample that tested positive for marijuana.
On November 4, 2008, Seay was indicted by a federal grand jury for possessing a firearm while being an unlawful user of, or addicted to, a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Seay pled not guilty and moved to dismiss the indictment, arguing that the government unnecessarily delayed in presenting the case to the grand jury and that the indictment violated his Second Amendment rights. The magistrate judge
Following the imposition of sentence, Seay filed a notice of appeal. The government moved to dismiss the appeal based on the appeal waiver in Seay's plea agreement. After considering briefs from both parties, we elected to decide the waiver issue along with the merits of Seay's appeal, which is now before us.
Before addressing the merits of Seay's appeal, we must first decide whether he has waived the right to bring this appeal at all.
Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir.1994) (alterations in original); see also United States v. Smith, 422 F.3d 715, 724 (8th Cir.2005) ("It is a well-established legal principle that a valid plea of guilty is an admission of guilt that waives all nonjurisdictional defects and defenses."); Walker v. United States, 115 F.3d 603, 604 (8th Cir. 1997) ("Stated differently, a valid guilty plea forecloses an attack on a conviction unless on the face of the record the court had no power to enter the conviction or impose the sentence."). Thus, in order to bring this appeal, Seay must show that his appeal is jurisdictional in nature.
First, Seay argues that the government improperly delayed seeking an indictment in his case, and that the district court should have dismissed the indictment under Federal Rule of Criminal Procedure 48. Rule 48 allows a court to "dismiss an indictment . . . if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial." Fed.R.Crim.P. 48(b). The essence of Seay's argument—that the government waited too long to prosecute him—is similar to the argument raised in Cox v. Lockhart, 970 F.2d 448 (8th Cir.1992). In Cox, a habeas petitioner argued, following his valid guilty plea, that his state speedy trial claim should be analyzed as a Sixth Amendment speedy trial claim. Id. at
Second, Seay argues that 18 U.S.C. § 922(g)(3) is facially unconstitutional following the Supreme Court's decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). According to Seay, the prohibition on firearm possession in § 922(g)(3) violates his individual right to keep and bear arms enshrined in the Second Amendment. This is not an as-applied challenge; rather, Seay argues that § 922(g)(3) is unconstitutional in all instances. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (to prove facial unconstitutionality, "the challenger must establish that no set of circumstances exists under which the Act would be valid"). We have previously held that such facial attacks are jurisdictional in nature and survive a valid guilty plea.
The government directs us to United States v. Fox, 573 F.3d 1050 (10th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 813, 175 L.Ed.2d 570 (2009), in which the Tenth Circuit held, without significant discussion, that a defendant's challenge to the constitutionality of 18 U.S.C. § 922(g) was non-jurisdictional and, therefore, waived. Id. at 1052 n. 1. The government argues that Fox's holding is consistent with the way the Supreme Court has explained the concept of jurisdiction in cases such as United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, several defendants were convicted of conspiring to distribute, and to possess with intent to distribute, a detectable amount of cocaine and cocaine base. Id. at 627-28, 122 S.Ct. 1781. The district court, however, made a drug-quantity finding at sentencing that implicated the enhanced penalties under 21 U.S.C. § 841(b)(1)(A). Id.
Seay, however, does not argue that his indictment was defective, as did the defendant in Cotton. Instead, he alleges that the indictment should never have been brought at all because the government "may not constitutionally prosecute" him. See Menna, 423 U.S. at 62 n. 2, 96 S.Ct. 241. If Seay is correct, then he should never have been "haled into court" at all, see Blackledge, 417 U.S. at 30, 94 S.Ct. 2098, and his conviction must be reversed. Such challenges to the court's jurisdiction may be pursued despite a defendant's guilty plea. See Broce, 488 U.S. at 575, 109 S.Ct. 757; Menna, 423 U.S. at 62 n. 2, 96 S.Ct. 241; Blackledge, 417 U.S. at 30, 94 S.Ct. 2098. Because we see no way to reconcile Fox with the clear language of our cases holding that facial challenges are jurisdictional in nature, see Morgan, 230 F.3d at 1071, we hold that Seay's Second Amendment challenge is jurisdictional and, therefore, survives his guilty plea.
Having held that Seay's constitutional argument survives his guilty plea, we now turn to the merits of his claim. Seay argues that § 922(g)(3)'s ban on firearm possession is facially unconstitutional following the Supreme Court's Heller decision, which he claims established the right to keep and bear arms as a fundamental constitutional right. We review the constitutionality of the statute de novo.
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Prior to 2009, the Supreme Court had not examined that right in depth. This changed with the Court's landmark decision in Heller, which established that the Second Amendment right is an individual right unconnected to service in the militia, and struck down the District of Columbia's ban on handgun possession. See 128 S.Ct. at 2791, 2797, 2821-22. In dicta, the Court emphasized that,
Id. at 2816-17. The Court noted that its list of presumptively valid laws "does not purport to be exhaustive." Id. at 2817 n. 26.
Since Heller, the Supreme Court determined the inevitable question of whether the Second Amendment is applicable to the states through the Fourteenth Amendment. See McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In McDonald, the Court stated, "[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." Id. at 3042. Although a majority of the Court held that, as a fundamental right, the Second Amendment is applicable to the states, the Court was unable to agree on how. See id. at 3030-31, 3044-50 (Alito, J., writing the plurality opinion) (holding that the Second Amendment right is incorporated to the states through the Due Process Clause of the Fourteenth Amendment); id. at 3058-88 (Thomas, J., concurring in part and concurring in the judgment) (arguing that the Second Amendment right "is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause"). The plurality opinion stressed, however, that the Heller "holding did not cast doubt on such longstanding regulatory measures as `prohibitions on the possession of firearms by felons and the mentally ill'. . . . We repeat those assurances here. . . . [I]ncorporation does not imperil every law regulating firearms." See id. at 3047 (plurality opinion) (quoting Heller, 128 S.Ct. at 2816-17).
Following Heller, many defendants have argued that 18 U.S.C. § 922(g), or some subsection thereof, violates the Second Amendment. To date, none have succeeded. For example, we have upheld the constitutionality of § 922(g)(1) (felon in possession). See United States v. Irish, 285 Fed.Appx. 326 (8th Cir.2008) (unpublished per curiam). Our sister circuits have upheld the constitutionality of § 922(g)(1), as well as § 922(g)(4) (persons committed to mental institutions or adjudicated as a mental defective) and § 922(g)(9) (persons convicted of a domestic-violence misdemeanor). See United States v. Williams, 616 F.3d 685, 690-94, 2010 WL 3035483, at *4-7 (7th Cir.2010) (§ 922(g)(1)); United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir.2010) (§ 922(g)(1)); United States v. McRobie, No. 08-4632, 2009 WL 82715, at *1 (4th Cir. Jan.14, 2009) (unpublished per curiam) (§ 922(g)(4)); United States v. Skoien, 614 F.3d 638, 645, 2010 WL 2735747, at *7 (7th Cir.2010) (en banc) (§ 922(g)(9)); United States v. White, 593 F.3d 1199, 1206 (11th Cir.2010) (same); cf. United States v. Marzzarella, 614 F.3d 85, 95-101 (3d Cir. 2010) (upholding challenge to 18 U.S.C. § 922(k), which prohibits possession of any firearm with a removed, obliterated, or altered serial number). But see United States v. Chester, No. 09-4084, 2010 WL 675261, at *3, *6 (4th Cir.2010) (unpublished per curiam) (vacating a district court's refusal to dismiss an indictment for violation of § 922(g)(9) under Heller and remanding for the district court to conduct a more thorough analysis).
Turning to the subsection at issue here, § 922(g)(3) makes it unlawful for anyone "who is an unlawful user of or addicted to
Nothing in Seay's argument convinces us that we should depart company from every other court to examine § 922(g)(3) following Heller. Further, § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller. See Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213. Moreover, in passing § 922(g)(3), Congress expressed its intention to "keep firearms out of the possession of drug abusers, a dangerous class of individuals." United States v. Cheeseman, 600 F.3d 270, 280 (3d Cir. 2010), pet. for cert. filed, 78 U.S.L.W. 3731 (U.S. June 1, 2010) (No. 09-1470). As such, we find that § 922(g)(3) is the type of "longstanding prohibition on the possession of firearms" that Heller declared presumptively lawful. See 128 S.Ct. at 2816-17. Accordingly, we reject Seay's facial challenge to § 922(g)(1).
For the foregoing reasons, we grant the government's motion in part, deny it in part, and affirm Seay's conviction.