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United States of America v. Angel Decastro

June 1, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
ANGEL DECASTRO, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

10-3773

United States v. Decastro

Argued: November 30, 2011

Before: JACOBS, Chief Judge, HALL and LYNCH, Circuit Judges.

30 Defendant was convicted of transporting into his state 31 of residence a firearm acquired in another state in 32 violation of 18 U.S.C. § 922(a)(3). He appeals on the 33 ground that § 922(a)(3) violates his Second Amendment right 34 to keep and bear arms. He argues: [1] that § 922(a)(3) is 35 unconstitutional on its face; and [2] that, in combination 36 with New York's licensing scheme, the prohibition on the 1 transportation into New York of a firearm purchased in 2 another state made it virtually impossible for him to obtain 3 a handgun for self-defense. For the following reasons, the 4 judgment of the district court is affirmed. Judge Hall 5 concurs by separate opinion.

21 Following a bench trial on stipulated facts in the 22 United States District Court for the Southern District of 23 New York (Patterson, J.), Angel Decastro was convicted of 24 transporting into his state of residence a firearm acquired 25 in another state in violation of 18 U.S.C. § 922(a)(3).

26 Decastro appeals on the ground that § 922(a)(3) violates his 27 Second Amendment right to keep and bear arms. He argues:

28 [1] that § 922(a)(3) is unconstitutional on its face; and 29 [2] that, in combination with New York's licensing scheme, 30 the prohibition on the transportation into New York of a 2 1 firearm purchased in another state made it virtually 2 impossible for him to obtain a handgun for self-defense.

3 For the following reasons, the judgment of the district 4 court is affirmed.

6 BACKGROUND

7 In 2002, Angel Decastro moved from Florida to New York 8 to help run his step-father's dry cleaning business. In 9 July 2004, an encounter between Decastro and a customer 10 escalated into a gang confrontation. Police arrested 11 Decastro and the customer, but all charges were dropped.

12 Decastro feared retaliation, and on the recommendation of a 13 New York police detective, requested a handgun license 14 application from the New York Police Department ("NYPD").

15 He did not submit an application because (he maintains) he 16 was told by an NYPD desk officer that there was "no way" his 17 application would be approved.

18 Decastro, who was licensed to own a handgun in Florida, 19 purchased firearms from a gun dealer on a visit there in 20 February 2005: a Taurus model PT92 pistol ("the Taurus 21 Pistol") and a Glock nine-millimeter handgun. In connection 22 with the purchase, Decastro was required to sign Form 4473 3 1 of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

2 On it he falsely gave Florida rather than New York as his 3 state of residence. Decastro left the Glock handgun in 4 Florida but transported the Taurus Pistol home to New York, 5 where he kept it at the dry-cleaning business for 6 protection.

7 The Decastro family sold the dry-cleaning business in 8 May 2005; in February 2006, Decastro moved to Florida. 9 Before leaving New York, Decastro gave the Taurus Pistol to 10 a relative in the Bronx. Decastro planned to transport it 11 back to Florida in a few months' time.

12 In July 2006, a Bronx woman reported to the NYPD that 13 she had found the Taurus Pistol in her closet along with 14 other items that belonged to her common-law husband (who was 15 a relative of Decastro). A police search of the closet 16 yielded the Taurus Pistol as well as two other guns, 17 handcuffs, masks, and fake police shields.

18 Decastro was subsequently indicted for violating 18 19 U.S.C. § 922(a)(3). That statute (subject to certain 20 exceptions not applicable here*fn1 ) prohibits anyone other than 1 a licensed importer, manufacturer, dealer or collector from 2 transporting into his state of residence a firearm purchased 3 or obtained outside that state. Decastro moved to dismiss 4 the indictment on the ground that it violated his Second 5 Amendment right to possess a gun for self-defense. He 6 argued that § 922(a)(3) was facially unconstitutional under 7 District of Columbia v. Heller, 554 U.S. 570 (2008), and 8 that New York City's restrictive licensing requirements were 9 tantamount to a ban. In support, Decastro submitted a chart 10 showing that few applications for pistol licenses were 11 received and issued by New York City in the period 2004- 12 2006. For residential-premises handgun licenses, an average 13 of 858 new applications were submitted annually and an 14 average of 620 licenses were issued; for business-premises 15 licenses, an average of 59 new applications were submitted § 922(a)(3)(A), [2] rifles and shotguns acquired outside of the purchaser's state of residence, provided that the transaction is conducted in person and in compliance with the legal conditions of sale in both the purchaser's home state and the ...


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