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5TH CIRCUIT REVERSES DISTRICT COURT ON 922(g) DISMISSAL

Just last week, I had someone send me a forgettable decision by a backwater Federal district court in a circuit a thousand miles away from where the prisoner had been convicted. Suggesting that the case made his pending motion a dead-bang winner, he demanded, “You have to read this case!”

No, I don’t. The only court whose opinions are binding everywhere is the Supreme Court. A court of appeals decision is binding only in its own circuit and then only when the court publishes the decision. A district court’s opinion binds no one outside of the case it was issued in (called the law of the case doctrine, something we’ll take up at another time).

That doesn’t keep people from touting the latest LEXIS case from the Jerkwater, Kansas, federal district court as though Moses had carried it down the slopes of Mt. Sinai. Judges themselves don’t help: a district court especially is all too glad to cite some nonbinding case in support of its own conclusion without taking care to note that the other opinion is what lawyers call “persuasive authority.”

A good “persuasive authority” decision and $6.25 will get you a Peppermint Mocha at Starbucks for a limited time. In fact, a Court of Appeals decision – if it is not “published” – is nonbinding on other panels of the same court. A “published” decision, on the other hand, cannot be reversed unless the court does it on an en banc rehearing (or it’s nullified by a Supreme Court case).

So what? The 5th Circuit, which has become notorious at the Dept of Justice for anti-922(g) decisions, last week reversed a decision by US District Court Judge Carlton Reeves – whose opinions on federal criminal law are especially important because his side gig is serving as chairman of the U.S. Sentencing Commission – that defendant Jesse Bullock’s 18 USC § 922(g) felon-in-possession indictment should be dismissed because of the Supreme Court’s 2022 New York State Rifle & Piston Association v. Bruen decision. Judge Reeves found that in the wake of Bruen, prohibiting felons from having guns violated the 2nd Amendment.

The 5th held that Jesse’s many prior felony convictions, which included aggravated assault and manslaughter (for shooting an unarmed bar bouncer and “firing a ‘barrage of bullets’ into a nearby crowd,” killing a 19-year-old passerby) meant that he could be banned from possessing guns in light of last summer’s SCOTUS opinion in United States v. Rahimi (an appeal from this Circuit’s holding that the defendant could have a gun despite a domestic protection order and a violent history). The 5th found that “a ban on Bullock’s ability to possess a firearm ‘fits neatly’ within our Nation’s historical tradition of firearm regulation.”

Last week’s decision was unpublished, meaning that it would not bind another Circuit panel considering the same issue (or even the same person if he possessed a gun on another occasion). However, the day after the unpublished opinion was issued, the Dept. of Justice filed a motion asking the 5th to publish the case, arguing that an opinion identifying “aggravated assault and manslaughter as among the predicate offenses that district courts may look to in assessing whether a defendant’s use of a firearm may be prohibited… has potential significance in other cases for which these previous offenses serve as § 922(g)(1) predicates.”

Jesse has opposed the motion, contending that the opinion is a ho-hum application of Rahimi, not worth the ink figuratively needed to publish. “This Court addressed the merits of the district court decision without requesting supplemental briefing” after Rahimi was decided. “No oral argument was held. If published, the panel’s decision would preclude other panels from considering the issue with the benefit of more robust briefing and argument.”

Jesse’s last argument is most to the point. The government fears the 5th, with the benefit of a lot of briefing and focus, might issue another Rahimi-type decision. Getting a summary holding that violent prior convictions disqualify someone from gun possession would box in the Circuit, requiring another Rahimi-type decision to be en banc.

United States v. Bullock, Case No. 23-60408, 2024 U.S. App. LEXIS 29938 (5th Cir., November 25, 2024)

– Thomas L. Root