United States of America v. Kevin LaMarcus Mitchell

Jackson, Mississippi, criminal defense lawyer represented the Defendant charged with felony possession of a firearm.



his case is about whether the Second Amendment protects a habitual marijuana user from being permanently dispossessed of a firearm based on our Nation's historical tradition of firearm regulation. On November 28, 2023, Kevin LaMarcus Mitchell was charged with possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) based on his prior conviction under 18 U.S.C. § 922(g)(3) for unlawful possession of a controlled substance while possessing a firearm. He moved to dismiss the indictment, raising several constitutional challenges to § 922(g)(1), including one under the Second Amendment and N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). The district court denied his motion, and Mitchell pleaded guilty and was sentenced. On appeal, he brings five separate constitutional challenges.



On April 6, 2018, at the age of nineteen, Mitchell was arrested for outstanding warrants by the Pascagoula Police Department. A search of the vehicle in which he was arrested revealed a loaded .40 caliber pistol and a small bag of marijuana. Mitchell admitted to being a drug user but denied ownership of the drugs and the firearm recovered in the vehicle. He later admitted over a recorded jail call that the firearm, which had been reported as stolen, was in his possession. Based on these admissions, Mitchell pleaded guilty to possessing a firearm as an unlawful user in violation of § 922(g)(3), a felony offense. He was sentenced to twenty-one months of imprisonment, followed by three years of supervised release.



At the time of his § 922(g)(3) offense, Mitchell admitted to smoking three marijuana cigarettes per day.1 His Presentence Investigation Report ("PSR”) in that case noted that he "admitted to being a drug user, stating that he has used marijuana the past three years.” He later tested positive for marijuana while on supervised release in March 2022.



On November 27, 2023, Mitchell was arrested by a Federal Bureau of Investigation ("FBI”) task force on an outstanding warrant for unrelated charges of auto theft and flight from an officer charged by the Moss Point, Mississippi, Police Department. When executing that warrant, agents found a 9-millimeter handgun and a 9-millimeter Berretta in the room Mitchell occupied. On November 28, 2023, a criminal complaint was filed by the government in the United States District Court for the Southern District of Mississippi against Mitchell for violating § 922(g)(1)'s bar on being a felon in

possession of a firearm. The predicate offense was his § 922(g)(3) conviction.



At the time of his § 922(g)(1) offense, Mitchell admitted to smoking marijuana daily. While on supervised release, Mitchell tested positive for marijuana on two occasions. In his initial appearance in this case, he also submitted a urine sample that tested presumptive positive for marijuana. Before trial, Mitchell moved to dismiss the indictment, raising several constitutional challenges. The government opposed the motion. The district court denied his motion in April 2024.

Mitchell pleaded guilty subject to a conditional plea agreement. He reserved the right to appeal the district court's denial of his motion to dismiss the indictment on Second Amendment grounds. The district court sentenced Mitchell to sixty-four months of imprisonment, to be followed by a three-year term of supervised release. Mitchell timely appealed.



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His main argument on appeal is that the government failed to proffer relevantly similar historical analogues to justify permanent disarmament under § 922(g)(1) as applied to Mitchell's § 922(g)(3) predicate offense. The government, by contrast, focuses on Mitchell's overall purported dangerousness and history of recidivism to justify his firearm dispossession.



Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. As part of our constitutional system, "the right to keep and bear arms is among the 'fundamental rights necessary to our system of ordered liberty.'” United States v. Rahimi, 602 U.S. 680, 690 (2024) (quoting McDonald v. Chicago, 561 U.S. 742, 778 (2010)). Though the right to bear arms is vital to ordered liberty, this right is not "unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Because it "codified a pre-existing right, . . . pre-existing limits on that right are part and parcel of it.” Rahimi, 602 U.S. at 737 (Barrett, J., concurring).



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Since Bruen, the Supreme Court has not yet addressed how its test interacts with § 922(g)(1) challenges. An entrenched circuit split has now emerged about its proper application. The Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits, for example, have upheld the categorical application of § 922(g)(1) to all felons. E.g., United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (concluding that "legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” so "Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons”), cert. denied, 145 S. Ct. 2708 (2025).2 In contrast, the Fifth Circuit, along with the First, Second, Third, Sixth, and Seventh Circuits, has concluded that § 922(g)(1) might be unconstitutional as applied to some felons. E.g., Diaz, 116 F.4th at 458 (rejecting an as-applied challenge because the defendant's underlying felony was relevantly similar to a death-eligible felony at the Founding).3 At this

juncture, we are bound by Diaz.



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The upshot of Diaz for our circuit precedent was twofold. First, it defined the relevant scope of inquiry for an as-applied challenge to § 922(g)(1): a court may consider only crimes punishable by a term of imprisonment exceeding one year for predicate offenses. Second, it left the door open for § 922(g)(1) to be unconstitutional as applied to some felons.



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Connelly illustrates two general principles in this area of law. First, § 922(g)(3) is not facially unconstitutional because our Nation's historical tradition supports firearm regulations disarming presently intoxicated individuals. Id. at 282. Second, § 922(g)(3) is unconstitutional when used to disarm an individual solely "based on habitual or occasional drug use.” Id.



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The government frames its dangerousness argument around statements from the Supreme Court and Fifth Circuit that hint at possible constitutional justifications for disarmament. See, e.g., Rahimi, 602 U.S. at 698 ("When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”); United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024) ("The historical record demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”) (per curiam) (cleaned up). It also relies on decisions from the Third and Sixth Circuits that consider "dangerousness” as a crucial factor in disarming individuals. See, e.g., Pitsilides v. Barr, 128 F.4th 203, 211 (3d Cir. 2025) ("[C]ourts must consider all factors that bear on a felon's capacity to possess a firearm without posing such a danger.”); United States v. Williams, 113 F.4th 637, 650 (6th Cir. 2024) ("Historical evidence demonstrates that early English kings and Parliament alike disarmed individuals they deemed dangerous. An examination of colonial history next reveals that residents of the New World carried on this tradition.”).



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To connect those dots with the Nation's historical tradition of firearm regulation, the government relies on Founding-era weapon forfeitures laws—also known as "going armed” laws—in support of Mitchell's disarmament under § 922(g)(1). It also cites Rahimi, Diaz, and Contreras to conclude that § 922(g)(1) "shares the 'how' (disarmament) and 'why' (deter

criminal conduct, protect the public, and facilitate rehabilitation) of these historical regulations.” See Contreras, 125 F.4th at 733.



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Second, the government argues that Mitchell's "recidivism would not have been tolerated” during the time of the Founding. Once again, it relies on his entire criminal history to contend that his "dangerousness is particularly appropriate here in the case of a defendant who has repeatedly engaged in assaultive conduct and whose recidivism would historically have been met with harsh punishment.” For historical support, the government relies on United States v. Quiroz, 125 F.4th 713, 720 (5th Cir. 2025) (examining a 1748 Virginia statute that called for "the death penalty for a

third offense of stealing a hog”), and Diaz, 116 F.4th at 469 n.3 (noting capital punishment for crimes). It also looks to secondary sources. See, e.g., James E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm Change, and the

Supreme Court, 34 Hous. L. Rev. 1003, 1008 n.16 (1997) (recidivists were sometimes subject to execution during Colonial era); John V. Jacobi, Prison Health, Public Health: Obligations and Opportunities, 31 Am. J.L. & Med. 447, 457 (2005) ("[R]ecidivists . . . were dealt with brutally, by whippings and execution.”). Considering these historical examples, the government asks this court to "account [for] Mitchell's entire record, which is necessary to properly assess the extent of his violent conduct.” See Williams, 113 F.4th at 657–68. The government concedes it did not marshal sufficient historical support in opposing Mitchell's motion to dismiss, but it maintains that it "may provide additional legal support for its arguments on appeal.” See Bullock, 123 F.4th at 185.



At Step One, we must consider whether § 922(g)(1) burdens conduct protected by the Second Amendment. Diaz, 116 F.4th at 467. In Diaz, this court concluded that convicted felons are among "the people” presumptively protected by the Second Amendment and held that the "plain text of the Second Amendment covers the conduct prohibited by § 922(g)(1).” Id. at 466–67; accord Morgan, 147 F.4th at 527. Here, § 922(g)(1) as applied to Mitchell "impinges upon a right” secured by the Second Amendment and so it presumptively protects him. Morgan, 147 F.4th at 527. Before moving to Step Two, we must reaffirm our proper scope of inquiry. Under our precedent, we consider "only those predicate offenses under § 922(g)(1) that are 'punishable by imprisonment for a term exceeding one year.'” Id. at 528 (quoting Kimble, 142 F.4th at 310). "Other convictions, arrests, or conduct are 'not relevant'” for purposes of this court's as-applied analysis under § 922(g)(1). Id. (quoting Diaz, 116 F.4th at 467); see also Kimble, 142 F.4th at 318 ("The [only] relevant consideration is a defendant's 'prior convictions that are punishable by imprisonment for a term exceeding one year,' not . . . prior conduct that did not result in a felony conviction.” (quoting Diaz, 116 F.4th at 467)). We are bound by the scope defined in Diaz. Here, despite Mitchell's extensive criminal history, his only prior felony conviction was § 922(g)(3). In other words, his § 922(g)(3) conviction is the only predicate offense under his § 922(g)(1) offense. See Morgan, 147

F.4th at 528; see also Diaz, 116 F.4th at 467 ("[W]e may consider prior convictions that are 'punishable by imprisonment for a term exceeding one year.'” (citation omitted)). Mitchell's state misdemeanor convictions and conduct are therefore "not relevant” for our analysis. Diaz, 116 F.4th at 467; Morgan, 147 F.4th at 528. Against the government's request to "account [for] Mitchell's entire record, which is necessary to properly assess the extent of his violent conduct,” we reject such an invitation and instead confine our inquiry to Mitchell's § 922(g)(3) conviction—the only predicate

§ 922(g)(1) offense—based on the rule of orderliness. See Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008) ("It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”). To circumvent Diaz, the government urges us to focus on Mitchell's "dangerousness” in assessing whether § 922(g)(1) can be constitutionally applied to him by consulting his entire criminal record, including his

misdemeanors. It relies on Rahimi for the overarching constitutional principle that "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” 602 U.S. at 698, and Bullock for the view that "[t]he historical record demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” 123 F.4th at 185. In one sense, both statements are true. But Mitchell is correct on the law in this circuit: "dangerousness” is not the governing test for disarmament under § 922(g)(1).



For starters, Rahimi did not sweepingly proclaim that "dangerousness” is the new standard for Second Amendment challenges. 602 U.S. at 690. Rather, it was concerned with a narrow question: "When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect.” Id. After reviewing the historical tradition of "surety and going armed laws, which involved judicial determinations of whether a

particular defendant likely would threaten or had threatened another with a weapon,” the Court concluded that § 922(g)(8) "fits within our regulatorytradition.” Id. at 698–99. It noted that its opinion should not be read to

"suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse,” id. at 698 (citing Heller, 554 U.S. at 626), but that § 922(g)(8) "applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another.” Id. at 698–99 (quoting § 922(g)(8)); see also id. at 713–14 (Gorsuch, J., concurring) ("[W]e do not decide today whether the government may disarm a person without a judicial finding that he poses a 'credible threat' to another's physical safety . . . We do not resolve whether the government may disarm an individual permanently.”). The Court concluded: "As applied to the facts of this case, [§] 922(g)(8) fits comfortably within [our Nation's firearm regulation] tradition.” Id. at 690. Thus, Rahimi did not attempt to swap or displace Bruen's text, history, and tradition methodology with a new, amorphous standard of dangerousness for Second Amendment challenges.

We have moreover not read Rahimi in the government's proposed light. See Connelly, 117 F.4th at 277 ("Indeed, not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous.” (emphasis in original)); id. at 278 ("The government identifies no class of persons at the Founding who were 'dangerous' for re asons comparable to marijuana users.”). Failing to find support in Rahimi, the government looks to Bullock to provide a lifeline, but to no avail. In Bullock, we reviewed an as-

applied challenge to § 922(g)(1) from a defendant who had "numerous felony convictions.” 123 F.4th at 184. Bullock had been convicted of aggravated assault and manslaughter after an incident in which he "shot an unarmed bar bouncer,” unloaded a "barrage of bullets” into a crowd nearby, and killed a nineteen-year-old bystander. Id. In examining his two felonies—aggravatedassault and manslaughter—Bullock concluded there was "no doubt . . . in this context” these felonies were "dangerous and violent crimes,” and therefore justified dispossession under § 922(g)(1). Id. at 185. To reach its conclusion,



Bullock reiterated the fundamental point from Diaz—that we would review only Bullock's "underlying convictions,” which "stemmed from the threat and commission of violence with a firearm.” Id. (citing Diaz, 116 F.4th at 470 n.5). For these reasons, we find no tension between Bullock and Diaz.5 Without either Rahimi or Bullock to come to its rescue,6 the

government looks to the Third and Sixth Circuits to support its dangerousness theory. Both circuits allow courts to examine a defendant's entire record, including misdemeanors, to make a dangerousness assessment for purposes of as-applied challenges to § 922(g)(1). See Pitsilides, 128 F.4th at 212; Williams, 113 F.4th at 657–58. But we need not engage with those cases because Diaz controls. Without further instruction from the Supreme Court or en banc court, we are bound by our rule of orderliness.7 Jacobs, 548 F.3d at 378; Daniels, 124 F.4th at 974 n.6.



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As applied to Mitchell, § 922(g)(1) limits his Second Amendment rights more than our Nation's historical tradition would allow under these facts. For starters, unlike Contreras, who was found with eight grams of marijuana, packaging, a scale, and marijuana residue with the smell of marijuana emanating from his car at the time of his § 922(g)(1) offense, there is no evidence that Mitchell was actively under the influence of marijuana while in possession of a firearm at the time of his § 922(g)(1) offense. Contreras, 125 F.4th at 728. The government cites to examples of intoxication, but each took place while he was on court supervision, not while he was possessing a firearm.

Guided by history and constrained by precedent, we hold that

§ 922(g)(1) is unconstitutional as applied to Mitchell’s § 922(g)(3) predicate

offense. Under Bruen, our Nation’s historical tradition of using intoxication

laws to prohibit carrying firearms while presently intoxicated does not

support permanent disarmament of a marijuana user who was not presently

intoxicated while in possession of a firearm. Our precedents further instruct

that being a habitual marijuana user, without more, is insufficient to justify

disarmament under § 922(g)(3). Connelly, 117 F.4th at 282 (holding that the

government could not apply § 922(g)(3) to a defendant based entirely on her

“habitual or occasional drug use”); Daniels, 124 F.4th at 970 (same). That

same tradition holds true for § 922(g)(1) as applied to Mitchell in this case.11

Because we hold that § 922(g)(1) is unconstitutional as applied to

Mitchell, we need not address Mitchell’s alterative grounds for reversal.



The district court's denial of the Defendant's motion to dismiss was reversed and the district court's denial of his motion to dismiss and the judgement of conviction and sentence was vacated.