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United States v. Laboy-Torres

January 29, 2009

UNITED STATES OF AMERICA
v.
MARCO LABOY-TORRES, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Criminal No. 06-cr-0351-1 (Honorable Christopher C. Conner).

The opinion of the court was delivered by: O'connor, Associate Justice (Retired).

PRECEDENTIAL

Argued November 20, 2008

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge, and O'CONNOR,*fn1 Associate Justice (Ret.).

OPINION OF THE COURT

Under federal law, it is a crime for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to ship, transport, receive or possess a firearm or ammunition. 18 U. S. C. §922(g)(1). In Small v. United States, 544 U.S. 385 (2005), the Supreme Court construed the phrase "convict[ions] in any court" in that statute to "encompas[s] only domestic, not foreign, convictions." Id. at 387. The question presented is whether appellant's conviction in a Puerto Rican court for the possession of marijuana is a "foreign" or "domestic" conviction under §922(g)(1), a question of first impression in the Courts of Appeals. The District Court concluded that it was a domestic conviction within the ambit of the statute's prohibition. We agree, and accordingly affirm the court's denial of appellant's motion to dismiss his indictment.

I.

The material facts are not in dispute. In July 1999, appellant Marco Laboy-Torres was convicted in the Superior Court of Mayaguez, Puerto Rico, for possessing marijuana, and was sentenced to 36 months' probation. Two years later, he moved to the United States in violation of the terms of his sentence. When he returned to Puerto Rico in 2005, he was re-arrested, his probation was revoked, and he was sentenced to serve a three year term of incarceration, with two years' credit for the probation he had previously served. He ultimately served seven months' imprisonment. After he was released, he returned to the United States.

In June 2006, appellant attempted to purchase from a licensed firearms dealer in York, Pennsylvania, two semi-automatic pistols and one standard pistol. On the form required by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to complete a firearms purchase, appellant certified that he had never been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. Supplemental Appendix for Appellee 1.*fn2 When the dealer performed an instant criminal background check, appellant's Puerto Rican conviction turned up, and the dealer consequently refused to sell appellant the three handguns. Six days later, appellant endeavored to purchase two handguns from a different dealer, with the same result. Again he certified that he had no disqualifying convictions, Supplemental Appendix for Appellee 5, again a criminal background check uncovered his Puerto Rican conviction, and again the transaction was refused.

Three months later, agents of the ATF interviewed appellant, and he confirmed that he had been convicted for possession of marijuana in Puerto Rico and admitted his two subsequent attempts to purchase firearms in Pennsylvania. He was later indicted by a grand jury for two counts of making false or fictitious statements to deceive a licensed firearms dealer in the sale or acquisition of a firearm, in violation of 18 U. S. C. §922(a)(6). In relevant part, that statute makes it unlawful "knowingly to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of [a] sale [of firearms]." Ibid. The Government asserted that appellant knew that each of his denials of disqualifying convictions was false. It further asserted that each was material because his Puerto Rican conviction made it unlawful for him to purchase firearms under §922(g)(1), which provides that it is "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm or ammunition."

Appellant pleaded not guilty and moved to dismiss his indictment on the ground that the Government failed adequately to allege the materiality element of the charged offense. United States v. Laboy-Torres, 2007 WL 2155550, *1 (MD Pa. 2007). He asserted that pursuant to the reasoning of Small v. United States, 544 U.S. 385, the firearms purchases he attempted would have been lawful under §922(g)(1) because his Puerto Rican conviction was entered by a "foreign" court excluded from the statute's reference to "any court." Id. at *2; see Small, 544 U.S. at 387 (construing §922(g)(1) to "encompas[s] only domestic, not foreign, convictions"). As his attempted purchases would have been lawful notwithstanding his Puerto Rican conviction, he argued that conviction was not a fact material to the lawfulness of each attempted purchase. 2007 WL 2155550, at *2. In the absence of materiality-an element necessary for conviction under §922(a)(6)-appellant contended that his indictment was legally deficient and had to be dismissed. Ibid.

The District Court denied his motion, rejecting the premise upon which it was based. The court concluded that appellant's Puerto Rican conviction was a "domestic" conviction under Small, and that appellant's attempted purchases thus were prohibited by §922(g)(1). Id. at *2--*3. In light of this conclusion, appellant's contention that his omissions were immaterial-and that his indictment under §922(a)(6) thus was legally insufficient-could not succeed.

Appellant then pleaded guilty to one count of the indictment, on the condition that he could appeal the District Court's denial of his dismissal motion. After sentencing,*fn3 he filed the instant appeal, which presents a single issue. Specifically, appellant challenges only the District Court's conclusion that his Puerto Rican conviction was a "domestic" conviction under ยง922(g)(1) and Small. We have jurisdiction to consider his timely appeal under 28 U. S. C. ...


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