United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-1142

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kyle Joseph Turner

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: November 14, 2016

Filed: November 22, 2016

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

Kyle Joseph Turner pled guilty to one count of possession of a firearm and

ammunition by an unlawful drug user in violation of 18 U.S.C. §§ 922(g)(3) and

924(a)(2), conditioned on his right to appeal the denial of his pretrial motion to

dismiss. He argues on appeal that 18 U.S.C. § 922(g)(3) is unconstitutionally vague

and that the district court made various sentencing errors. We remand for further

proceedings.
I.

On June 11, 2015 state corrections officer Steve Warner visited the home of

Kyle Turner who was serving a state probationary sentence. Turner told officer

Warner that he had a shotgun in his possession. Warner located the shotgun in

Turner's bedroom next to some ammunition. Later that day, Turner provided a urine

sample that tested positive for methamphetamine. He was thereafter indicted for

possession of a firearm by an unlawful drug user in violation of 18 U.S.C.

§ 922(g)(3), specifically for possessing a firearm while being an "unlawful user of

methamphetamine."

Turner filed a motion to dismiss the indictment. He argued that § 922(g)(3)

was unconstitutionally vague as applied to his conduct because his indictment failed

to allege that he "engaged in regular use of methamphetamine." The government

responded that the motion to dismiss was premature because it turned on evidence

that would be presented at trial. The district court denied the motion, concluding that

the indictment alleged sufficient facts to defeat Turner's vagueness challenge. Turner

subsequently entered a conditional guilty plea, reserving his right to appeal the denial

of his motion to dismiss. Turner's plea agreement stated that on June 11, 2015 he

"was an unlawful user of methamphetamine." The agreement further stated that on

June 11, 2015 he had "tested positive for methamphetamine" and "admitted to using

methamphetamine approximately one week prior."

After conditionally pleading guilty, Turner moved for reconsideration of the

motion to dismiss. Turner also requested an evidentiary hearing to introduce the

documentary "evidence upon which [he] wasindicted" and "upon which the plea was

entered." The government's opposing motion included additional exhibits that

purportedly showed Turner's prior drug use. The district court once again denied the

motion to dismiss, this time finding that the government's evidence established that

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Turner had engaged in "regular drug use" at a time "overlapping his possession of a

firearm." Turner was subsequently sentenced to 15 months imprisonment, and

appeals, challenging both the denial of his motion to dismiss and his sentence.

II.

Turner argues that the district erred in denying his motion to dismiss which

raised the affirmative defense that 18 U.S.C. § 922(g)(3) was unconstitutionally

vague as applied to the facts of his case. We review the denial of a motion to dismiss

de novo. United States v. Huggans, 650 F.3d 1210, 1217 (8th Cir. 2011). A criminal

statute is unconstitutionally vague in violation of the Fifth Amendment due process

clause if it "fails to give ordinary people fair notice of the conduct it punishes, or [is]

so standardless that it invites arbitrary enforcement." Johnson v. United States, 135

S. Ct. 2551, 2556 (2015).

Federal Rule of Criminal Procedure 12(b)(1) permits parties to "raise by

pretrial motion any defense, objection, orrequest that the court can determine without

a trial on the merits." A motion is capable of pretrial determination "if trial of the

facts surrounding the commission of the alleged offense would be of no assistance in

determining the validity" of the motion. United States v. Covington, 395 U.S. 57, 60

(1969). The district court must rule on such a motion before trial unless there is

"good cause to defer a ruling" and deferral will not "adversely affect a party's right

to appeal." Fed. R. Crim. P. 12(d).

We conclude that "a trial on the merits" was needed to decide Turner's pretrial

motion to dismiss. As a preliminary matter, the parties dispute what evidence the

district court could consider in making its ruling. Courts may consider evidence

beyond the pleadings to make factual findings in pretrial orders. See United States v.

Bloomfield, 40 F.3d 910, 913–15 (8th Cir. 1994) (en banc); see also Fed. R. Crim. P.

12(a) (defining "pleadings"). Indeed, Rule 12 contemplates that district courts may

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sometimes make factual findings when ruling on pretrial motions and requires that

the court "state its essential findings on the record." Fed. R. Crim. P. 12(d). Courts

may not, however, make factual findings when an issue is "inevitably bound up with

evidence about the alleged offense itself." United States v. Grimmett, 150 F.3d 958,

962 (8th Cir. 1998) (quoting United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir.

1994)). The relevant question is thus not what evidence the court relied upon in its

ruling, but rather what type of factual finding it made.

The phrase "unlawful user of . . . any controlled substance" in 18 U.S.C.

§ 922(g)(3) is not defined by statute and "runs the risk of being unconstitutionally

vague without a judicially-created temporal nexus between the gun possession and

regular drug use." United States v. Turnball, 349 F.3d 558, 561 (8th Cir. 2003)

(emphasis added), vacated, 543 U.S. 1099 (2005), reinstated, 414 F.3d 942 (8th Cir.)

(per curiam). In order to rule on Turner's as applied constitutional challenge, the

district court therefore had to determine whether he had engaged in "regular drug use"

at the time he possessed the firearm. The "facts surrounding the commission of the

alleged offense" would assist with that determination, and the contested defense

therefore could not be ruled upon without a "trial on the merits." See Covington, 395

U.S. at 60; Fed. R. Crim. P. 12(b)(1).

We conclude that the district court erred by definitively ruling on the motion

at that point instead of informing Turner that it would defer a ruling until trial. 

Pretrial motions should be ruled on unless there is "good cause to defer a ruling." 

Fed. R. Crim. P. 12(d). Good cause exists and a decision should be deferred if

disposing of the pretrial motion requires making factual determinations that "fall[]

within the province of the ultimate finder of fact." United States v. Wilson, 26 F.3d

142, 159 (D.C. Cir. 1994) (quoting United States v. Shortt Accountancy Corp., 785

F.2d 1448, 1452 (9th Cir. 1986)).

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Here, the district court could not rule on Turner's as applied constitutional

challenge without resolving factual issues related to his alleged offense, such as the

extent of his drug use, and therefore the court should have deferred ruling until trial. 

The court's premature ruling prejudiced Turner's ability to obtain appellate review of

his constitutional challenge, for he conditionally pled guilty under his mistaken

assumption that he could "have an appellate court review an adverse determination"

of his motion to dismiss. See Fed. R. Crim. P. 11(a)(2). He could not have obtained

such an adverse determination without proceeding to trial, however, and thus could

not both plead guilty and obtain appellate review of his constitutional challenge. Had

the district court informed Turner that it would have to defer a final ruling on his

motion, Turner could have "move[d] to vacate [his] guilty plea[]" and "proceed[ed]

to trial on the original charges." See Grimmett, 150 F.3d at 962. We remand for

Turner to have the opportunity to consider this choice.1

III.

For the foregoing reasons, the district court order denying Turner's motion to

dismiss is reversed, the judgment is vacated, and the case is remanded for further

proceedings consistent with this opinion. 

2

Although a facial challenge to 18 U.S.C. § 922(g)(3) could be brought in a

1

pretrial motion to dismiss, see United States v. Pope, 613 F.3d 1255, 1261 (10th Cir.

2010), a panel of our court has held that criminal statutes challenged on non First

Amendment grounds are not amenable to facial attacks. See, e.g., United States v.

Ghane, 673 F.3d 771, 777 (8th Cir. 2012); but see Johnson v. United States, 135 S.

Ct. at 2261 (stating that the Supreme Court "holdings squarely contradict the theory

that a vague provision is constitutional merely because there is some conduct that

clearly falls within the provision's grasp"). 

Because of this disposition, it is not necessary to reach Turner's alternative

2

sentencing arguments. 

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