UNITED STATES COURT OF APPEALS February 9, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 22-4074

JONATHAN ALEXANDER MORALES- LOPEZ,

Defendant - Appellee. _________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:20-CR-00027-JNP-1) _________________________________

Nathan Jack, Assistant United States Attorney (Trina A. Higgins, United States Attorney, and Jennifer P. Williams, Assistant United States Attorney, on the briefs), Salt Lake City, Utah, for Plaintiff-Appellant.

Scott Keith Wilson, Federal Public Defender (Jessica Stengel and Bretta Pirie, Assistant Federal Public Defenders, with him on the brief), Salt Lake City, Utah, for Defendant- Appellee. _________________________________

Before CARSON, BALDOCK, and EBEL, Circuit Judges. _________________________________

BALDOCK, Circuit Judge. ________________________________

Federal law prohibits certain people from possessing firearms. 18 U.S.C.

§ 922(g). The portion of § 922(g) at issue in this appeal is subsection (g)(3), which Appellate Case: 22-4074 Document: 010110997681 Date Filed: 02/09/2024 Page: 2

in relevant part forbids any person “who is an unlawful user of . . . any controlled

substance” from possessing a firearm. A jury convicted Defendant Jonathan Morales

of violating § 922(g)(3). But post-trial, the district court granted Defendant’s motion

to dismiss the charge as violative of the Fifth Amendment’s Due Process Clause.

U.S. Const. amend. V. According to the district court, subsection (g)(3)’s phrase

“unlawful user” was unconstitutionally vague both on its face and as applied to the facts

underlying Defendant’s conviction. United States v. Morales-Lopez, 2022 WL 2355920

(D. Utah 2022) (unpublished). The Government appeals. Exercising jurisdiction

pursuant to 18 U.S.C. § 3731, we first hold, based on binding precedent, that the district

court erred in considering whether § 922(g)(3) was unconstitutional on its face. We

further hold, again based on binding precedent, that the district court erred in determining

§ 922(g)(3) was unconstitutional as applied to Defendant’s criminal conduct.

Accordingly, we reverse and remand with instructions to reinstate the jury’s verdict. 1

I.

Let us begin with the facts established at trial. Defendant Morales and Jose

Amaya were partners in crime. On January 10, 2020, the two men were stealing firearms

and ammunition from the Sportsman’s Warehouse in Midvale, Utah during morning

business hours. Amaya served as point man and Defendant as lookout. Store employees

1 In United States v. Wilson, 420 U.S. 332, 344–45 (1975), the Supreme Court explained: “[W]here appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. . . . Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.” In other words, “where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended.” Id. at 344. 2 Appellate Case: 22-4074 Document: 010110997681 Date Filed: 02/09/2024 Page: 3

observed the t