United States v. Todd Bramer

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, C. Arlen Beam and Jane Kelly (PUBLISHED) [4436488] [15-3121]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3121
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Todd Karl Bramer
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Aberdeen
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Submitted: May 31, 2016
Filed: August 11, 2016
[Published]
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Before SMITH, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Todd Bramer pled guilty to one count of possession of firearms by a prohibited
person—specifically, an unlawful user of a controlled substance—in violation of 18
U.S.C. § 922(g)(3). In his written guilty plea, Bramer admitted to “knowingly
possess[ing] firearms,” including two handguns and at least one other firearm, while
“being an unlawful user of marijuana.” Bramer also waived the right to appeal all

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non-jurisdictional issues. On appeal from the district court,1 Bramer argues that
§ 922(g)(3), which makes it unlawful for “any person . . . who is an unlawful user of
or addicted to any controlled substance” to possess a firearm, is unconstitutionally
vague.
Bramer argues that § 922(g)(3) is facially2 unconstitutional, because the terms
“unlawful user” of a controlled substance and “addicted to” a controlled substance are
vague. Though we are inclined to think that this argument could be meritorious under
the right factual circumstances, it fails here. Bramer’s argument rests in large part on
Johnson v. United States, 135 S. Ct. 2551 (2015), which applied a more expansive
vagueness analysis than prior case law might have suggested. Before Johnson, we
required defendants challenging the facial validity of a criminal statute to establish
that “‘no set of circumstances exist[ed] under which the [statute] would be valid.’”
United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010) (quoting United States
v. Salerno, 481 U.S. 739, 745 (1987)). Johnson, however, clarified that a vague
criminal statute is not constitutional “merely because there is some conduct that falls
within the provision’s grasp.” Johnson, 135 S. Ct. at 2561.
Though Bramer need not prove that § 922(g)(3) is vague in all its applications,
our case law still requires him to show that the statute is vague as applied to his
particular conduct. United States v. Cook, 782 F.3d 983, 987 (8th Cir.), cert. denied,
136 S. Ct. 262 (2015) (“‘a [defendant] who engages in some conduct that is clearly
prohibited cannot complain of the vagueness of the law as applied to the conduct of
others’” (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19 (2010))).

1

The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
2

The parties agree that Bramer’s appeal waiver in this case precludes all but a
facial constitutional challenge. United States v. Seay, 620 F.3d 919, 922 (8th Cir.
2010).
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Here, Bramer admitted in his written plea agreement to being an unlawful user of
marijuana while in knowing possession of at least three firearms. We therefore have
no basis in the record to conclude that the term “unlawful user” of a controlled
substance was unconstitutionally vague as applied to him. United States v. Huckaby,
698 F.2d 915, 920 (8th Cir. 1982) (“Generally, constitutional challenges not raised
before the trial court are not cognizable on appeal unless they constitute plain error.”).
Though it is plausible that the terms “unlawful user” of a controlled substance
and “addicted to” a controlled substance could be unconstitutionally vague under
some circumstances, Bramer does not argue, and has not shown, that either term is
vague as applied to his particular conduct of possessing firearms while regularly using
marijuana. Under our case law, his facial challenge to the constitutionality of §
922(g)(3) cannot succeed without such a showing. Cook, 782 F.3d at 988–90 (finding
that the statute in question gave the defendant “adequate notice that his conduct was
criminal”). Accordingly, we affirm Bramer’s conviction.
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