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Guns, Drugs and Appellate Waivers – Update for March 9, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT HAS PRISONER-FRIENDLY WEEK…

The Supremes heard oral arguments in two cases last week, and while it is always perilous to predict the outcome from what happens in oral argument, the signs favor two pro-prisoner decisions.

In the closely-watched United States v. Hemani case, the government sought review of a 5th Circuit holding that 18 USC § 922(g)(3) – which prohibits drug abusers from possessing guns – could be applied to a gun owner who smoked pot a few times a week consistent with the 2nd Amendment.

Attorneys for the government compared § 922(g)(3) to colonial-era laws that disarmed “habitual drunkards.” However, Justice Neil Gorsuch wondered whether Hemani even qualified as a “habitual user” of marijuana. Gorsuch observed that the term “habitual drunkard” carried a very different meaning in early American history, because people generally drank alcohol in great quantity. “John Adams,” Gorsuch said, “took a tankard of hard cider with his breakfast every day,” while “James Madison reportedly drank a pint of whiskey every day.”

And if those Founding Fathers were not “habitual drunkards,” Gorsuch asked, “then what do we know about Mr. Hemani? We know he uses marijuana … about every other day… [W]e don’t even know the quantity of how much he uses every other day.”  And the federal government, Gorsuch said, “has not been able to define what a user is.”

A majority of the justices seemed to agree that § 922(g)(3) may be overbroad, lumping together occasional drug users with people addicted to drugs who threaten public safety. “Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked the government’s attorney. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?” she added.

If the Hemani opinion focuses on “dangerousness,” it may advance arguments that nonviolent felons should not be subject to § 922(g)(1). Politico, however, warned that it is “unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.”

A case that has drawn lesser interest (but is maybe more consequential for defendants) is Hunter v. United States. Hunter asks what exceptions exist to federal defendants’ waivers of their right to appeal, language that appears in virtually every one of the 94% of federal cases that end with a guilty plea every year.

SCOTUSBlog reported that “[t]he justices seemed poised to endorse more exceptions than just the two the government endorsed – ones for ineffective assistance of counsel in entering into a plea agreement and for sentences above the statutory maximum. A number of justices also expressed misgivings about relying on contract law to define exceptions to appellate waivers… and a majority seemed likely to hold, at a minimum, that a defendant could escape from an appellate waiver when enforcing it would result in a “miscarriage of justice…”

The National Law Journal observed that DOJ’s “hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback,” even suggesting that if a district court were avowedly racist at sentencing, an appeal waiver would prevent the defendant from getting any relief.

Writing last week in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman argued that broad sentencing appeal waivers “insulate all sorts of sentencing errors from scrutiny and review, and they seem fundamentally inconsistent with the decision by Congress in the Sentencing Reform Act of 1984 to provide both defendants and the government with the right… to seek appellate ‘review of an otherwise final sentence’.”

Berman wrote that he “was pleased to discover at least one Justice (Justice Jackson) seemed drawn to the idea that broad sentencing appeal waivers were void as against public policy, and I was even more pleased that it was not clear that any Justice was eager to embrace the government’s suggestion that broad sentencing appeal waivers were subject to almost no exceptions. I predict the majority of the Court will end up between these extremes, and I am already looking forward to seeing what the middle ground will be.”

United States v. Hemani, Case No. 24-1234 (oral argument March 2, 2026)

Politico, Supreme Court wrestles with gun ban for drug users (March 2, 2026)

SCOTUSBlog, Supreme Court skeptical of law banning drug users from possessing firearms (March 2, 2026)

New York Times, Supreme Court Appears Skeptical of Law Banning Drug Users From Owning Guns (March 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument March 3, 2026)

SCOTUSBlog, Justices poised to adopt exceptions to federal criminal defendants’ appellate waivers (March 6, 2026)

National Law Journal, ‘Racist Sentencing Judge?’: DOJ Stuns Supreme Court With Stance on Appeal Waivers (March 4, 2026)

Sentencing Law and Policy, Broad array of Justices express broad concerns about broad appeal waivers in Hunter oral argument (March 3, 2026)

~ Thomas L. Root

Back In The Trenches, A Couple of 922(g) Decisions… – Update for February 13, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE 10TH GIVETH, THE 10TH TAKETH AWAY

gunfight230919In the world of gun restrictions, all eyes are on the Supreme Court, which will decide United States v. Rahimi – and maybe the future of the 2nd Amendment – sometime between now and June. But litigation over 18 USC § 922(g), the laundry list of people who the government says should not have guns or ammo, in the lower courts continues unabated.

Out in the wild, wild west, the 10th Circuit last week handed down a pair of 18 USC § 922(g) decisions, giving defendants a mixed bag.

In one case, Colorado defendant Kenneth Devereaux was convicted of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)). He received a 2-level enhancement in his Guidelines range because the district judge considered a prior conviction for assault under 18 USC § 113(a)(6) to be a crime of violence.

doggun240213Last week, the 10th Circuit disagreed. A “§ 113(a)(6) assault can be committed recklessly,” the Circuit observed, but since the 2021 Supreme Court decision in Borden v. United States, “a reckless offense categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another.”

Section 113(a)(6) “sets forth a single indivisible assault offense, to which only the categorical… approach [applies],” the 10th ruled. “Because an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, after Borden it cannot qualify as a crime of violence…”

Things did not go so well for Jonathan Morales-Lopez. He and a buddy were caught stealing guns from a Utah gun store. When he was frisked, the police found a loaded Smith and Wesson he had previously stolen from the same store stuffed in his pants and a personal-use amount of meth in a plastic bag.

The State of Utah did its number on Jonathan for the theft, but the Feds picked up the gun case. He was charged as an unlawful drug user in possession of a gun under 18 USC § 922(g)(3). After he was convicted, Jon argued that § 922(g)(3) was unconstitutionally vague, violating his 5th Amendment rights. The district court agreed with Jon, and the government appealed.

“When the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised,” the Circuit wrote, “it is a cardinal principle that courts]will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” To avoid the vagueness problem, the 10th said, courts have interpreted § 922(g)(3) to convict a defendant only if the Government “introduced sufficient evidence of a temporal nexus between the drug use and firearm possession.”

knifegun170404Here, the appeals court said, that wasn’t even a close call. Jon was carrying his personal meth stash in his pocket and told the police after his arrest that he couldn’t remember much because he was high on the controlled substance at the time. “The facts presented at trial, coupled with reasonable inferences drawn from those facts, could support the conclusion that Morales-Lopez was an “unlawful user” of methamphetamine,” the Circuit held, “one whose use was ‘regular and ongoing, while in possession of a stolen firearm.”

What is puzzling is that Jon’s lawyer did not argue that § 922(g)(3) violated the 2nd Amendment, a claim that has already gotten traction in at least one other court of appeal. Hunter Biden plans that defense. Jon’s lawyer’s failure to raise it may be a subject for his § 2255 motion.

United States v. Devereaux, Case No. 22-1203, 2024 U.S. App. LEXIS 2751 (10th Cir., February 6, 2024)

Borden v. United States, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (Supreme Court, 2021)

United States v. Morales-Lopez, Case No. 22-4074, 2024 U.S. App. LEXIS 3051 (10th Cir., February 9, 2024)

– Thomas L. Root

Dope Smokers Knew They Were Drug Users (and Dog Bites Man) – Update for September 18, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT SAYS KNOWING STATUS IN REHAIF IS ENOUGH

A couple of marijuana aficionados (we’ll call ’em Cheech and Chong), were arrested smoking pot in a car with a couple of guns present. They were convicted of being unlawful drug users in possession of a firearm under 18 USC § 922(g)(3).

cheech190918A little-appreciated portion of § 922(g), the so-call felon-in-possession-of-a-firearm statute, is that it does not just prohibit convicted felons from possessing a gun. It also prohibits a laundry list of other people from possessing one as well: wife-beaters, people who are nuts, people who have been slapped with a civil protection order, illegal aliens, people on the lam, people who were thrown out of the Army, and dope-smokers. Really. Read the statute.

Cheech and Chong appealed, and while that appeal was pending, the Supreme Court handed down Rehaif v. United States, which held that a § 922(g) conviction requires that a defendant knows that he is in a class of people prohibited from possessing firearms, and that he knowingly possesses the gun. Cheech and Chong raised Rehaif in the Court of Appeals, arguing the government had not shown they knew they were unlawful users of a controlled substance, and even if they did, the government had not shown they knew they shouldn’t have the gun.

On plain error review, the 6th Circuit affirmed the conviction. The record was full of Cheech’s and Chong’s Facebook posts bragging about “smoking dope wit da demons” and “getting high and drunk da whole day.” The Court of Appeals said, “The jury heard that the defendants were arrested with marijuana, posted pictures of themselves using marijuana, commented about using marijuana, and posted a video of them smoking marijuana… The defendants dispute this evidence, but not on the ground that they were unaware the substance was marijuana, or unaware they were ‘unlawfully’ using it.”

marijuanahell190918But Cheech and Chong argued that even if they knowingly used marijuana, Rehaif required that the Government prove each defendant ‘knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance’.” The Court admitted, “it is at least plausible that they were unaware that they were prohibited from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to their regular and repeated drug use,” but held that Rehaif “did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.” The Circuit said Rehaif requires that “the Government must prove . . . that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm.”

United States v. Bowens, 2019 U.S. App. LEXIS 27488 (6th Cir. Sept. 12, 2019)

– Thomas L. Root