We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
We note that this is our 2,000th post on this blog, an effort that took us 10 years and 8 months to accomplish. Of course, 2,000 is not significant in any number system other than a base 10 (in binary, it’s 0b11111010000), but we are commemorating it anyway.
IS THE FIFTH CIRCUIT GUNNING FOR FELON-IN POSSESSION?
Two felon-in-possession decisions from the 5th Circuit last week suggest that a Supreme Court battle over the constitutionality of 18 USC § 922(g)(1) – the statute that prohibits felons from possessing guns and ammo – is all but inevitable.
In June, Curtis Squire, a convicted drug dealer, 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, even for people who otherwise were prohibited by colonial law from carrying a firearm. For good measure, he also claimed that the statute violated the 2nd Amendment on its face and that it was unconstitutional under the Commerce Clause.
ICYMI, 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.
Ever wonder why § 922(g) only applies to guns and ammo that have traveled in interstate commerce? It’s because without an interstate commerce nexus, federal law cannot limit the mere possession of a gun. That’s why § 922(g)(1) can’t prevent a convicted felon from building a gun at home. It’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.
Sometimes the interstate nexus is too attenuated. In Curtis’s case, he argued that his possession of the gun – which was manufactured in Massachusetts or Brazil or somewhere other than Louisiana – was too insignificant to “substantially affect” interstate commerce. Thirty years ago, the Supreme Court struck down the Gun Free School Zones Act of 1990 (which made possession of a gun in a local school zone a federal crime) in United States v. Lopez. 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 blew past Curt’s Lopez argument with a footnote, holding that the Commerce Clause challenge was foreclosed by its decision in United States v. Diaz. The Panel went on to rule that Curtis was dangerous because of his drug trafficking offense, “which places him in a class of dangerous felons that our regulatory tradition permits legislatures to disarm.”
Last week, the 5th Circuit granted en banc review to the decision. 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 rarely granted, generally about two-tenths of 1% 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.
In Curt’s case, enough judges found the question of whether § 922(g)(1) exceeds Congress’s authority under the Commerce Clause debateable to hear the case.
The 5th Circuit invalidated a § 922(g)(1) conviction in a more conventional style last week, holding that the felon-in-possession law was unconstitutional as applied to Talanzo Debrow. Tal’s prior felony conduct took place in May 2019, arising out of a traffic stop on a stolen vehicle in which he was the driver. Talanzo attempted to flee the traffic stop, but, in doing so, he “shifted the car twice to ram into the troopers’ cars.” Tal pled guilty to aggravated criminal damage to property in violation of Louisiana Revised Statute 14:55(A).
After he did his time, police caught Talanzo with a gun. He was charged with a violation of § 922(g)(1) felon-in-possession.
The district court ruled that the felon-in-possession was constitutional, but last week, the 5th reversed. Tal argued that § 922(g)(1) was unconstitutional as applied to him because his conviction only related to damage to property. The government argued that Talanzo’s “underlying facts rise to the level of lifetime dangerousness” and that the Louisiana state he was convicted under itself was a crime of violence.
The 5th Circuit ruled that the predicate crime of aggravated property damage was a property crime, not a crime of violence. It looked at the statute categorically, and refused to look at the uncharged conduct of ramming police cars: “The government principally asks us to affirm a § 922(g)(1) conviction on the basis of conduct underlying the predicate, as opposed to the predicate itself… The relevant consideration is a defendant’s prior convictions…’,” the Circuit held, “not unproven conduct charged contemporaneously with a defendant’s § 922(g)(1) indictment or prior conduct that did not result in a felony conviction.”
Talanzo’s case suggests one route to invalidating a § 922(g)(1) conviction. But a reversal in Curtis’s case – if it comes – would be a huge change in application of the most-used federal law on firearms on the books.
United States v. Squire, Order (5th Cir. July 20, 2026)
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)
United States v. Squire, 177 F.4th 614 (5th Cir. 2026)
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Debrow, Case No 25-30380, 2026 USAppLEXIS 21976 (5th Cir. July 23, 2026)
The Reload, Appeals Court to Reconsider Foundation of Federal Gun Control (July 26, 2026)
~ Thomas L. Root
