Sentencing; Enhancement of defendant’s base offense level under USSG § 2K2.1(a)(4)(B) because he was a “person described” under § 18 USC § 922(g)(3); As-applied constitutional challenge to § 922(g)(3); NY State Rifle & Pistol Ass’n v Bruen; Whether defendant could be classified as a “dangerous individual”; United States v Williams

[This appeal was from the WD-MI.] The court held that § 922(g)(3), which prohibits unlawful drug users from possessing a firearm, did not violate the Second Amendment as applied to defendant-VanOchten where he qualified as a “dangerous individual” under the statute. He pled guilty to possessing three unregistered firearms (pipe bombs). The district court enhanced his base level under § 2K2.1(a)(4)(B) because he was a “person described” under § 922(g)(3). VanOchten argued that § 922(g)(3) violated the Second Amendment as applied to him. The court explained that it must determine whether “the Second Amendment’s plain text” covers the proposed course of conduct, and if it does, whether the government can justifiably apply the regulation to the individual consistent with our nation’s regulatory tradition. It concluded its recent decision in Williams resolved “these questions in favor of the government in this case.” While it determined that VanOchten satisfied Bruen’s first step, the court agreed with the government that “Congress may, consistent with the Second Amendment’s historical scope, disarm an illegal drug user whose behavior shows that he is dangerous.” “The court held in Williams that “‘legislators may disarm groups of people, like felons, whom the legislature believes to be dangerous—so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.’” Thus, it followed “that § 922(g)(3) can be applied to dangerous drug users consistent with the Second Amendment.” The court noted that on the day he was arrested, VanOchten “‘was shooting’ a rifle ‘in the direction of a propane tank in a residential neighborhood’ while ‘drunk and high.’” Based on this incident by itself, he had “demonstrated—as the district court found—that he presents a clear ‘threat to the public.’” Affirmed.