United States District Court, D. Arizona
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
the Court is Magistrate Judge Eric Markovich's Report and
Recommendation (R&R) recommending that the District Court
enter an order granting Defendant's Motion to Dismiss the
Superseding Indictment with Prejudice. (Doc 47.) The United
States has filed an Objection. (Doc. 51.) After an
independent review of the parties' briefing and of the
record, the Court will overrule the Government's
objection and adopt Judge Markovich's R&R.
reviewing a Magistrate Judge's Report and Recommendation,
this Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis omitted). District courts are not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). See also 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72;
Reyna-Tapia, 328 F.3d at 1121; Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
was charged with one count of felon in possession of a
firearm and ammunition pursuant to 18 U.S.C. §
922(g)(1). (Doc. 13.) Section 922(g)(1) makes it unlawful for
a person who has been convicted of “a crime punishable
by imprisonment for a term exceeding one year” to
possess a firearm. Judge Markovich issued an R&R
recommending that the Court grant Defendant's Motion to
Dismiss the Indictment with Prejudice, interpreting the
statutory language “punishable by imprisonment for a
term exceeding one year” to mean as actually prosecuted
or adjudicated, rather than as determined by the statutory
maximum of the underlying offense, and then concluding that
none of Defendant's three underlying offenses constituted
Government first objects to Judge Markovich's
interpretation of Section 922(g)(1)'s “publishable
by” language, arguing that the Court should look to the
underlying offense's statutory maximum to determine
whether a crime is “punishable by imprisonment for a
term exceeding one year, ” as was historically the
Court's approach under United States v. Murillo,
422 F.3d 1152 (9th Cir. 2005). As the Government acknowledges
in its supplemental filing (Doc. 55), however, the analysis
in Judge Markovich's R&R is consistent with a
recently issued Ninth Circuit opinion, United States v.
McAdory, No. 18-30112, 2019 WL 4051597 (9th Cir. Aug.
28, 2019), decided after the Government filed its initial
objection. Prior to McAdory, the Ninth Circuit had
also recently held in United States v.
Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), that a
“felony, ” defined under United States Sentencing
Guideline § 2L1.2 as “any federal, state, or local
offense punishable by imprisonment for a term exceeding one
year, ” included only those prior offenses actually
punishable by a sentence over one year under the state's
mandatory sentencing guidelines, rather than the potential
maximum sentence defined by the applicable state criminal
statute. McAdory extended this holding to section
922(g)(1)'s definition of “felony, ”
concluding that the court's decision in
Valencia-Mendoza overturned Murillo. This
Court is bound by the holding in McAdory.
Government argues in the alternative that Defendant's
prior convictions constituted felonies for purposes of
section 922(g)(1) because Defendant never earned the
designation of misdemeanor; the prior convictions remain
formally designated as “felonies” in her records.
Whether an offense is formally designated as a
“misdemeanor” or a “felony” on her
state record, however, is not controlling. Whether a crime is
“punishable by imprisonment for a term exceeding one
year, ” as defined in Section 922(g)(1) and as that
clause is interpreted in McAdory, governs. For the
reasons stated by Judge Markovich, none of Defendant's
prior convictions can serve as the predicate offense to an 18
U.S.C. § 922(g)(1) prosecution.
IT IS ORDERED that the Report and Recommendation (Doc. 47) is
FURTHER ORDERED that the Motion to Dismiss the Superseding
Indictment (Doc. 26) is GRANTED. The Superseding Indictment
(Doc. 22) is dismissed with prejudice. The ...