LISA Newsletter for September 21, 2026 – 5th Circuit En Banc Asks Whether ‘Commerce Clause’ Attack Should Doom Felon-in-Possession
LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.
Edited by Thomas L Root, MA JD
Vol 12, No 36
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Focus Sharpens on Consequential 5th Circuit Felon-In-Possession En Banc
Meanwhile, Up North…
Making a Virtue Out of FSA Necessity
Close But No Cigar in Compassionate Release Appeal
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FOCUS SHARPENS ON CONSEQUENTIAL 5TH CIRCUIT FELON-IN-POSSESSION EN BANC
You may remember the newsletter’s reporting on a 5th Circuit en banc proceeding over whether 18 USC 922(g)(1) – the felon in possession statute – is unconstitutional, not under the 2nd Amendment but rather under the Commerce Clause.
All of the significant felon-in-possession litigation in the past few years has focused on whether the statute violates the 2nd Amendment as applied to nonviolent felons. This case, US v Squire, instead asks whether prohibiting people with prior felonies from possessing guns that traveled in interstate commerce violates the Commerce Clause.
In June, Patton Squire lost his argument that 922(g)(1) was unconstitutional as applied to his situation, one in which a gun was found in his house. He argued that keeping a gun at home for defense was a right enshrined in American history. For good measure, he also claimed the statute violated the 2nd Amendment on its face and was unconstitutional under the Commerce Clause.
The Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, gives Congress the power “to regulate commerce with foreign nations, among states and with the Indian tribes.” Congress has often used the Commerce Clause to justify exercising power over the activities of states and their citizens, leading to significant controversy regarding the balance of power between the federal government and the states.
Without an interstate commerce nexus, federal law cannot limit the mere possession of a gun. That’s why a 922(g) prosecution always features testimony from some ATF agent that the gun at issue crossed state lines before falling into the defendant’s hands, and thus that the defendant’s firearm possession is “in or affecting commerce,” as the statute puts it.
In Pat’s case, he argued that while the gun – manufactured in Massachusetts – once traveled in interstate commerce, his current possession of it in his bedroom was too insignificant to “substantially affect” interstate commerce. Some 30 years ago in US v Lopez, the Supreme Court struck down the Gun-Free School Zones Act of 1990 (which made possession of a gun in a school zone a federal crime). Lopez held that Congress exceeded its constitutional authority under the Commerce Clause because possessing a gun in a local school zone is not an economic activity that substantially affects interstate commerce.
The 5th Circuit panel held that Patton’s Commerce Clause challenge was foreclosed by its decision in US v Diaz. However, the 5th Circuit granted en banc review. Rehearing en banc has the case reheard by all 17 judges in active service on the 5th Circuit and as many of the seven judges on senior status as want to join in. Contrary to inmate lore, en banc review is rarely granted, generally about two-tenths of 1 pct a year of all cases. En banc review is used to reverse prior circuit precedent or where the circuit’s position conflicts with other circuits.
Last week, the Firearms Policy Coalition filed an amicus brief in the case arguing that the limitation in 922(g) that the gun have traveled in interstate commerce was nothing more than a “jurisdictional hook” that was invalid given the historically narrow use of the term “commerce” when the Constitution was written and the admitted purposes of 922(g), which was to control violent crime.
Controlling violent crime, the FPC argued, is an activity reserved to the states: the stated purpose of 922(g) – where 39 states already have laws banning felons from possessing guns (although usually limited by the type of prior crime and for a stated period of time.
As is typically the case, the only evidence that Patton Squire possessed a gun “in or affecting commerce” was that the weapon had at some point in its history crossed state lines. As the FPC notes, establishing that element is rarely difficult: “The government has proffered testimony that 95% of all guns in the United States have crossed state lines.”
“In other words,” Reason reported, “the constitutional rationale for making a federal case out of the pistol found in Squire’s living room is barely more demanding than requiring proof that the gun was made of metal. Can that possibly suffice to treat Section 922(g)(1) as an exercise of the power to regulate interstate commerce?”
The FPC thinks not. ‘Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon,’ it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.”
The Commerce Clause argument has great import for 922(g) defendants. As well, it may affect other statutes that depend on interstate commerce as a jurisdictional hook, from arson to child porn to Travel Act to murder-for-hire.
Whatever the outcome of the en banc proceeding, it will undoubtedly end up at the Supreme Court.
US v Squire, Order (5th Cir. July 20, 2026)
US v Squire, 177 F4th 614 (5th Cir. 2026)
Firearms Policy Coalition, Amicus Brief in Case No. 25-30324 (Sept 10, 2026)
Reason, How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws (Sept 11, 2026)
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MEANWHILE, UP NORTH…
The 1st Circuit last week ruled that a Maine resident whose predicate felony relied on by the sentencing court was for mere possession of methamphetamine could be convicted of being a felon-in-possession consistent with the 2ndAmendment.
Jason argued that a conviction for mere possession did not let a court conclude that he posed “a special danger of misuse,” as described by the Supreme Court in last spring’s US v Hemani decision. But the Circuit ruled that Hemani focused on a “danger of misuse” of the gun, not just a danger of physical violence.“[T]he modern version of 922(g)(1) does not just serve the purpose of ‘crime control,’” the 1st ruled. Rather, “[i]n enacting predecessor statutes to 922(g)(1), Congress ‘determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them… Indeed, the Supreme Court has described felon-in-possession bans as reflecting ‘Congress’ judgment that a convicted felon… is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness…”
This analysis underscores the importance of the interstate commerce issue raised in Squire. Using an “interstate commerce” hook for a statute, the purpose of which has nothing to do with regulating commerce but everything to do with crime control – a role that the Constitution assigns to the states – means that there is no practical limit to what Uncle Sam may want to criminalize.
US v Levasseur, Case No 24-1687, 2026 USAppLEXIS 28377 (1st Cir. Sept 16, 2026)
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MAKING A VIRTUE OUT OF FSA NECESSITY
The Bureau of Prisons has announced a change in 28 CFR 523.42(a), effective September 30, 2026. The change makes an inmate eligible to earn FSA credits “after the inmate’s term of imprisonment commences.” Currently, the rule says that eligibility begins on “the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served…”
This should be a small but welcome deal for FSA-eligible inmates, who on average spend 60 days from their sentencing date (when their BOP imprisonment begins) to the date they arrive at their prison. That 60 days will net them an additional 20 days of FSA credit.
Writing in Forbes, Walter Pavlo praised BOP Director William Marshall III for the “significant” progress he has made in FSA implementation. While Marshall deserves kudos for advancing FSA implementation more than his predecessors, praising him for this rule change makes a virtue out of necessity.
Pavlo notes in passing that “[t]he change followed a series of court decisions finding that the BOP’s previous regulation conflicted with the First Step Act. The BOP specifically cited decisions including Miles v. Bowers and Sharma v. Peters in explaining why it was removing the restriction….”
No fooling. It was almost two years ago that Sharma v Peters depantsed the BOP’s 523.41, which denied FSA credit to inmates while out on writ or in the SHU (but not in disciplinary segregation). Last April, both the 1st Circuit and 4thCircuit ruled that the BOP’s rule denying FSA credits until arrival at the designated prison and completion of an initial review was contrary to the FSA.
Pavlo argues that “[t]he BOP did something unusual and useful in announcing this change. It calculated the expected financial impact. The agency estimates that expanding the period during which prisoners can earn Time Credits will save approximately $54.1 million annually.”
In fact, the BOP – which only a few months ago was resisting cleaning up its rule – did what it had to do. It deserves no pats on the head for fighting the clear disconnect between its rule and the law for two years before finally surrendering to common sense and the courts.
Forbes, Bureau of Prisons Upgrades First Step Act With More Credits (Sept 18, 2026)
Federal Register, First Step Time Credits – Revision, 91 FR 55740 (Aug 31, 2026)
Miles v Bowers, Case No 25-1291, 2026 USAppLEXIS 11998 (1st Cir. Apr 27, 2026)
Benson v Warden, Case No 24-6713, 2026 USAppLEXIS 11454 (4th Cir. Apr 22, 2026)
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CLOSE BUT NO CIGAR IN COMPASSIONATE RELEASE APPEAL
Since last spring’s disappointing Supreme Court decision in Rutherford v US, a case that held courts cannot consider non-retroactive statutory changes as extraordinary and compelling reasons for 18 USC 3582(c)(1)(A)(i) compassionate releases (CRs), it looked like sentence disparity as a basis for a CR was dead.
For that reason, one has to admire Quentin Torentino, whose novel argument went that he was serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.
Sec 1B1.13 implements 28 USC 994(t), which directs the US Sentencing Commission to describe “what should be considered extraordinary and compelling reasons for sentence reduction.” The policy statement prohibits a court from considering a nonretroactive change to the Guidelines as an extraordinary and compelling reason warranting a CR.
However, Quentin challenged the policy statement’s validity. His rather slick argument was that because 994(t) (the statutory source of the Commission’s authority) expressly directs the Commission to describe only what should be considered extraordinary and compelling reasons, the Commission lacks statutory authority to specify what should not be considered extraordinary and compelling reasons.
Last week, the 9th Circuit rejected Quentin’s legal theory. It held that “Congress itself – in 994(t) – partly defined ‘extraordinary and compelling reasons’ by… specif[ying] that rehabilitation alone cannot be considered an extraordinary and compelling reason. Congress’s use of an express exclusion in the authorizing statute suggests that the Commission may also define “extraordinary and compelling” by exclusion. Indeed, it is common to define or clarify a term by specifying what it is not… If Congress preferred that the Commission avoid defining “extraordinary and compelling” by exclusion, it could have said so but did not.
Quentin’s final-second “Hail Mary” was to argue that, even if the policy statement validly precluded consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. The Circuit rejected this argument, too, holding that if “the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear.”
US v Troiano, Case No 24-6621, 2026 USAppLEXIS 28077 (9th Cir. Sept 14, 2026)
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