FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

MIGUEL MICHAEL ALANIZ, 

Defendant-Appellant.

No. 22-30141 

D.C. No. 

1:21-cr-00243-

BLW-1 

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted March 28, 2023

Seattle, Washington

Filed June 13, 2023

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, 

Circuit Judges, and Philip S. Gutierrez,* Chief District 

Judge.

Opinion by Chief Judge Gutierrez

* The Honorable Philip S. Gutierrez, Chief United States District Judge 

for the Central District of California, sitting by designation.
2 UNITED STATES V. ALANIZ

SUMMARY**

Criminal Law

The panel affirmed a sentence imposed in a case that 

required the panel to consider whether U.S.S.G. § 

2D1.1(b)(1), which provides for an enhancement of the 

Guidelines calculation if a defendant possessed a dangerous 

weapon at the time of a felony drug offense, is constitutional 

under the Second Amendment following New York State 

Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 

(2022).

Applying the two-part test adopted by Bruen, the panel 

assumed, without deciding, that step one is met—when the 

Second Amendment’s plain text covers an individual’s 

conduct, the Constitution presumptively protects that 

conduct. At step two, however, the panel found § 

2D1.1(b)(1) constitutional because it clearly comports with 

a history and tradition of regulating the possession of 

firearms during the commission of felonies involving a risk 

of violence.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALANIZ 3

COUNSEL

William M. Pope (argued), Assistant Federal Public 

Defender; Federal Public Defender’s Office; Spokane, 

Washington; Nicole Owens, Assistant Federal Public 

Defender; Federal Public Defender’s Office; Boise, Idaho; 

for Defendant-Appellant.

Syrena C. Hargrove (argued) and Christopher A. Booker, 

Assistant United States Attorneys; Joshua D. Hurwit, United 

States Attorney, District of Idaho; Office of the United States 

Attorney; Boise, Idaho; for Plaintiff-Appellee.

OPINION

GUTIERREZ, Chief District Judge:

This case requires us to consider whether United States 

Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1), which 

provides for an enhancement of the Guidelines calculation if 

a defendant possessed a dangerous weapon at the time of a 

felony drug offense, is constitutional under the Second 

Amendment following New York State Rifle & Pistol 

Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). We 

conclude that, in light of a well-established historical 

tradition of regulation, Miguel Michael Alaniz did not have 

the right to “keep and bear arms” during and in close 

proximity to his criminal activities. 
4 UNITED STATES V. ALANIZ

BACKGROUND

I. Arrest and Conviction

Alaniz was the subject of a year-long investigation by the 

Idaho State Police for drug trafficking and distribution. On 

three occasions in 2021, Alaniz sold cocaine out of his home 

and vehicle to a confidential informant. After the third 

transaction, officers stopped Alaniz’s car and arrested him. 

A search of the car revealed a loaded handgun near the center 

console. 

Shortly thereafter, the police obtained a warrant to search

Alaniz’s home. The search uncovered forty-seven grams of 

cocaine inside a pantry and safe in the kitchen and scales 

with white powdery residue in the bedroom. Officers also 

seized twelve additional firearms. Eleven of them, including

at least one AR-15 rifle and one AK-47 rifle, were in the 

bedroom; a hunting rifle was hidden behind the living room 

couch.

After a grand jury indicted Alaniz, he pleaded guilty, 

without a plea agreement, to three counts of cocaine 

distribution and one count of possession with intent to 

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 

(b)(1)(C).

II. Sentencing

U.S.S.G. § 2D1.1 governs sentencing for felony drug 

trafficking and provides offense-specific enhancements and 

departures. Alaniz’s presentence report recommended that 

the district court apply both § 2D1.1(b)(1)’s dangerous 

weapon enhancement and a downward departure under the 

“safety valve” in § 2D1.1(b)(18). Section 2D1.1(b)(1)

enhances a defendant’s Guidelines sentence by two levels

“[i]f a dangerous weapon (including a firearm) was 
UNITED STATES V. ALANIZ 5

possessed” and present during the crime, “unless it is clearly 

improbable that the weapon was connected with the 

offense.” U.S.S.G. § 2D1.1(b)(1) & cmt. n.11(A); see also 

United States v. Nelson, 222 F.3d 545, 550 (9th Cir. 2000) 

(“Section 2D1.1(b)(1) applies ‘if the weapon was 

present. . . .’” (citation omitted)). But under § 2D1.1(b)(18), 

a two-level downward departure applies if the defendant did 

not “possess a firearm . . . in connection with the offense.” 

U.S.S.G. § 5C1.2(a)(2).

Despite their seeming facial overlap, § 2D1.1(b)(1) and 

§ 2D1.1(b)(18) require distinct inquires. See Nelson, 222 

F.3d at 549–51. Under § 2D1.1(b)(1), the government 

simply bears the burden of proving that the weapon was 

possessed at the time of the offense. See id. at 551 n.3. The 

enhancement then applies unless the defendant can show it 

was “clearly improbable” that the weapon was possessed in 

connection with the offense. See id.; U.S.S.G. § 2D1.1(b)(1) 

cmt. n.11(A). But to invoke the “safety valve” in 

§ 2D1.1(b)(18), the defendant has a lower burden, and must 

only show by a preponderance that a dangerous weapon was 

not used in connection with the crime. See Nelson, 222 F.3d 

at 550.

Both Alaniz and the government objected to the 

presentence report. To meet its burden under § 2D1.1(b)(1)

and oppose application of § 2D1.1(b)(18), the government 

offered evidence that Alaniz possessed the seized firearms 

both temporally and spatially proximate to his drug 

trafficking. The government also argued that the number 

and kind of firearms seized supported a finding that they 

were used in connection with his criminal activities. Alaniz, 

however, offered evidence that the guns were used for lawful 

purposes, such as hunting, and not in connection with his 
6 UNITED STATES V. ALANIZ

drug crimes. Alaniz also challenged the constitutionality of 

§ 2D1.1(b)(1) under Bruen. 

At sentencing, the district court concluded that the twolevel § 2D1.1(b)(1) enhancement applied but found—albeit 

deeming it a “close call”—that Alaniz was entitled to safety 

valve relief under § 2D1.1(b)(18). It also found that 

§ 2D1.1(b)(1) was well-supported by a historical tradition of 

Second Amendment regulation and rejected Alaniz’s

constitutional objection. Calculating a total offense level of 

15, the court sentenced Alaniz to a below-Guidelines term of 

15 months in prison.

DISCUSSION

On appeal, Alaniz challenges only the constitutionality 

of U.S.S.G. § 2D1.1(b)(1) under Bruen. We have 

jurisdiction under 28 U.S.C. § 1291 and review the 

constitutionality of a statute de novo. See United States v. 

Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

I. The Second Amendment Framework

The Second Amendment instructs that “[a] well 

regulated Militia, being necessary to the security of a free 

State, the right of the people to keep and bear Arms, shall 

not be infringed.” U.S. Const. amend. II. Although the 

Amendment has historical underpinnings in English and 

early American law, the Supreme Court only began some 

fifteen years ago, in District of Columbia v. Heller, 554 U.S. 

570 (2008), to define the contours of the right.

Heller analyzed the Amendment’s text and history and

concluded that it protects the “law-abiding, responsible”

citizen’s possession of arms for the “lawful purpose of selfdefense.” 554 U.S. at 576–603, 630, 635; see also 

McDonald v. City of Chicago, 561 U.S. 742, 767–68 (2010) 
UNITED STATES V. ALANIZ 7

(“[W]e concluded [in Heller that] citizens must be permitted 

to ‘use [handguns] for the core lawful purpose of selfdefense.’” (quoting Heller, 554 U.S. at 630)). After Heller,

the Courts of Appeals “coalesced around a ‘two-step’ 

framework for analyzing Second Amendment challenges.” 

Bruen, 142 S. Ct. at 2125, 2127 n.4 (collecting cases); see 

also United States v. Chovan, 735 F.3d 1127, 1136–37 (9th 

Cir. 2013) (adopting framework). Under that framework, we 

first looked to history to determine “whether the challenged

law burdens conduct protected by the Second Amendment.” 

See Chovan, 735 F.3d at 1136. If so, we then applied a 

means-end scrutiny based on “the extent to which the law 

burdens the core of the Second Amendment right.” Jackson 

v. City & County of San Francisco, 746 F.3d 953, 961 (9th 

Cir. 2014).

This two-step approach, however, was rejected in Bruen

as “one step too many.” 142 S. Ct. at 2127. Bruen upheld 

the step one inquiry used by the Courts of Appeals as 

“broadly consistent with Heller.” Id. But it rejected the step 

two means-end analysis, noting that Heller instead 

“demands a test rooted in the Second Amendment’s text, as 

informed by history.” Id. As the Court explained, Heller 

started with “a ‘textual analysis’ focused on the ‘normal and 

ordinary’ meaning of the Second Amendment’s language.”

Id. (quoting Heller, 554 U.S. at 576–78). It then “relied on 

the historical understanding of the Amendment to demark 

the limits on the exercise of that right,” assessing “the 

lawfulness of [the statute] by scrutinizing whether it 

comported with history and tradition.” Id. at 2128.

In keeping with Heller’s text-and-history standard, 

Bruen adopted the following two-part test:
8 UNITED STATES V. ALANIZ

[W]hen the Second Amendment’s plain text 

covers an individual’s conduct, the 

Constitution presumptively protects that 

conduct. To justify its regulation, . . . the 

government must demonstrate that the 

regulation is consistent with this Nation’s 

historical tradition of firearm regulation. 

Only if a firearm regulation is consistent with 

this Nation’s historical tradition may a court 

conclude that the individual’s conduct falls 

outside the Second Amendment’s 

“unqualified command.”

Id. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 

U.S. 36, 49 n.10 (1961)). 

Bruen step one involves a threshold inquiry. In 

alignment with Heller, it requires a textual analysis, 

determining whether the challenger is “part of ‘the people’ 

whom the Second Amendment protects,” whether the 

weapon at issue is “‘in common use’ today for self-defense,”

and whether the “proposed course of conduct” falls within 

the Second Amendment. Id. at 2134–35 (citing Heller, 554 

U.S. at 580, 627).

If the first step is satisfied, we proceed to Bruen step two, 

at which the “Government bears the burden of proving the 

constitutionality of its actions” by showing that the regulated 

conduct falls within “the outer bounds of the right to keep 

and bear arms.” Id. at 2127, 2130 (citations omitted). Like 

First Amendment categories of unprotected speech, the outer 

bounds of the Second Amendment right are determined by 

analyzing a historical tradition of regulation. See id. at 2130. 

Thus, to carry its burden, the government must produce

representative analogues to demonstrate that the challenged 
UNITED STATES V. ALANIZ 9

law is consistent with a historical tradition of regulation. Id. 

at 2127, 2131–33.

Notably, the analogue required at step two need not be a 

“historical twin.” Id. at 2133. Rather, we use history to 

“guide our consideration of modern regulations that were 

unimaginable at the founding.” See id. at 2132. Bruen, 

therefore, instructs that the analogue must be “relevantly 

similar” as judged by “at least two metrics: how and why the 

regulations burden a law-abiding citizen’s right to armed 

self-defense.” Id. at 2132–33 (citing Heller, 554 U.S. at 599;

McDonald, 561 U.S. at 767). In other words, in analyzing a 

burden on the possession of firearms, we look to “whether 

modern and historical regulations impose a comparable 

burden on the right of armed self-defense and whether that 

burden is comparably justified.” Id. at 2133.

II. The Constitutionality of U.S.S.G. § 2D1.1(b)(1) 

Alaniz argues that U.S.S.G. § 2D1.1(b)(1) violates his 

Second Amendment right by punishing him for lawfully 

possessing firearms. We assume, without deciding, that step 

one of the Bruen test is met. But we find § 2D1.1(b)(1) 

constitutional under step two because it clearly comports 

with a history and tradition of regulating the possession of

firearms during the commission of felonies involving a risk 

of violence.

The government offers on appeal a number of foundingera statutes to prove a historical tradition of sentencing

enhancements tied to firearm possession.

1 We conclude that 

1 Alaniz contends that the government’s analogues cannot be considered 

on appeal because they were not raised below. But that is not so. “[I]t 

is claims that are deemed waived or forfeited, not arguments.” United 
10 UNITED STATES V. ALANIZ

this historical tradition is well-established.

2

 Notably, several 

States enacted laws throughout the 1800s that increased the 

severity of punishment for certain felonies when weapons

were possessed, but not necessarily used, during the 

commission of the crime. See, e.g., Commonwealth v. Hope, 

39 Mass. (22 Pick.) 1, 9–10 (1839) (analyzing an 1805 

statute that aggravated burglary to the first degree when a 

defendant possessed a weapon); People v. Fellinger, 24 

How. Pr. 341, 342 (N.Y. Gen. Term 1862) (same); State v. 

Tutt, 63 Mo. 595, 599 (1876) (same); United States v. 

Bernard, 24 F. Cas. 1131, 1131 (C.C.D.N.J. 1819) 

(discussing a New Jersey statute that punished the 

possession and exhibition of a firearm during the robbery of 

a postal worker). Indeed, Bruen itself confirms that the right 

to keep and bear arms was understood at the Founding to be

limited where there was a likelihood of a breach of peace. 

See 142 S. Ct. at 2144–46 (citing Simpson v. State, 13 Tenn. 

States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). Because 

the constitutional claim was raised below, we may consider the 

government’s step two arguments and analogues put forward on appeal.

2 States began in the 1700s to impose harsher punishments for crimes 

committed with firearms, and the tradition persisted through the Second 

Founding. See Mark Frassetto, Firearms and Weapons Legislation up to 

the Early 20th Century 99–101 (Jan. 15, 2013) (unpublished 

manuscript), https://perma.cc/5NNG-7KVH (collecting laws from the 

colonial era through the 1800s). Accordingly, we need not reach the 

question of the proper era from which to draw the historical analogues. 

See Bruen, 142 S. Ct. at 2138 (“[T]here is an ongoing scholarly debate 

on whether courts should primarily rely on the prevailing understanding 

of an individual right when the Fourteenth Amendment was ratified in 

1868 when defining its scope . . . . We need not address this issue 

today . . . .”).
UNITED STATES V. ALANIZ 11

356, 358–61 (1833); State v. Huntly, 25 N.C. 418, 421–23

(1843) (per curiam); O’Neil v. State, 16 Ala. 65, 67 (1849)).

Alaniz argues that the government cannot satisfy the step 

two inquiry because its analogues are not sufficiently similar 

to U.S.S.G. § 2D1.1(b)(1). He asserts that in the 

government’s examples, possession was an element of the 

offense and therefore required proof beyond a reasonable 

doubt. He also contends that felony drug trafficking presents 

the same “perceived societal problem,” as did smuggling 

crimes in the founding era, thus, in his view, requiring the 

government to present a “distinctly similar” historical 

analogue. Id. at 2131.

Alaniz’s argument, however, is divorced from both 

reality and the law. Illegal drug trafficking is a largely 

modern crime. It is animated by unprecedented 

contemporary concerns regarding drug abuse and is not 

closely analogous to founding-era smuggling crimes, which

primarily focused on punishing importers who evaded

customs duties. See Gonzales v. Raich, 545 U.S. 1, 10–13

(2005); see also Margarita Mercado Echegaray, Note, Drug 

Prohibition in America: Federal Drug Policy and Its 

Consequences, 75 Rev. Jur. U. P.R. 1215, 1219 (2006); 

Aaron T. Knapp, From Empire to Law: Customs Collection 

in the American Founding, 43 Law & Soc. Inquiry 554, 565–

66 (2018) (describing the Collection Act of 1789 that created 

“a customs collection regime” that aimed to “prevent fraud 

and evasion” through “punishing wrongdoing”). And Bruen

expressly recognized that “cases implicating unprecedented

societal concerns,” like the one here, “may require a more 

nuanced approach.” 142 S. Ct. at 2132.

Viewing the government’s proposed analogues through 

this lens, we are satisfied that they are “relevantly similar” 
12 UNITED STATES V. ALANIZ

to U.S.S.G. § 2D1.1(b)(1). See id. The analogues show a

longstanding tradition of enhancing a defendant’s sentence 

for the increased risk of violence created by mere possession

of a firearm during the commission of certain crimes. Drug 

trafficking fits squarely within that category of crimes. Like 

burglary or robbery, drug trafficking plainly poses 

substantial risks of confrontation that can lead to immediate 

violence. See United States v. Zamora, 37 F.3d 531, 533 

(9th Cir. 1994) (“[T]he possession of a gun during a drug 

trafficking offense increases the risk of violence.”); 

Echegaray, supra at 1241 (describing additional efforts to 

regulate illegal drug trafficking to curb related crimes and 

violence); see also § 2D1.1(b)(1) cmt. 11(A) (“The 

enhancement for weapon possession in subsection (b)(1) 

reflects the increased danger of violence when drug 

traffickers possess weapons.”). Section 2D1.1(b)(1),

therefore, imposes a “comparable burden” to the historical 

analogues and is “comparably justified.” See Bruen, 142 S. 

Ct. at 2133.

This historical record assures us that the two-level 

enhancement here is of a kind that the Founders would have 

tolerated. See id. at 2132. We thus conclude that application

of § 2D1.1(b)(1) to Alaniz’s sentence is constitutional.

AFFIRMED.