The opinion
USCA11 Case: 23-11885 Document: 31-1 Date Filed: 07/11/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11885
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRAYLAN STEVE JOHNSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20370-DPG-1
____________________
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2 Opinion of the Court 23-11885
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Graylan Johnson appeals his conviction for being a con-
victed felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. § 922(g)(1). He challenges the constitutionality of the
statutory prohibition on felons possessing firearms. After careful
consideration, we affirm.
I.
In June 2022, a law enforcement officer stopped a vehicle
Johnson was driving for a traffic infraction. During the stop, the
officer asked Johnson to step out of the vehicle. Although Johnson
initially complied with the officer’s directions, at one point during
the stop he climbed back into his vehicle and fled from the scene.
But he didn’t make it very far. Johnson crashed his vehicle, and of-
ficers apprehended him. When officers searched the vehicle, they
found a loaded firearm on the floorboard of the driver’s seat.
A grand jury returned an indictment charging Johnson with
being a felon in possession of a firearm and ammunition. Johnson
moved to dismiss the indictment, arguing that the prohibition on
felons possessing firearms violated his constitutional rights. Rely-
ing on the Supreme Court’s decision in New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1 (2022), he argued that § 922(g)(1)’s re-
striction on felons possessing firearms was unconstitutional be-
cause the government could not show that it was “consistent with
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23-11885 Opinion of the Court 3
the Nation’s historical tradition of firearm regulation.” Doc. 24 at 6
(internal quotation marks omitted). 1
A magistrate judge recommended that the district court
deny Johnson’s motion to dismiss. The magistrate judge explained
that binding precedent—this Court’s decision in United States v.
Rozier, 598 F.3d 768 (11th Cir. 2010)—established that the federal
prohibition on felons possessing firearms did not violate the Second
Amendment. After Johnson failed to object to this recommenda-
tion, the district court adopted the recommendation and denied
Johnson’s motion to dismiss.
After the district court denied the motion to dismiss, John-
son pleaded guilty to the felon-in-possession charge. The district
court ultimately sentenced Johnson to 180 months’ imprisonment.
This is Johnson’s appeal.
II.
Ordinarily, when a defendant enters a valid guilty plea, he
waives any non-jurisdictional defects in the proceedings. United
States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014). But Johnson’s
guilty plea did not waive his Second Amendment challenge to the
statutory prohibition on felons possessing firearms. See Class v.
United States, 583 U.S. 174, 181 (2018) (holding a defendant who
pleaded guilty did not waive his Second Amendment challenge to
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 23-11885
a statute of conviction because this claim did not “contradict the
terms of the indictment or written plea agreement”).
We generally review de novo a challenge to the constitution-
ality of a statute. See Rozier, 598 F.3d at 770. But when, as here, a
party fails to object to a magistrate judge’s report and recommen-
dation on an issue, he “waives the right to challenge on appeal the
district court’s order based on unobjected-to factual and legal con-
clusions.” 11th Cir. R. 3-1. We nonetheless may review such an is-
sue, if necessary in the interests of justice, for plain error. Id. In the
interests of justice, we review Johnson’s constitutional claim for
plain error.
To satisfy the plain error standard, a defendant must show:
(1) an error; (2) that was plain; (3) that affected his substantial
rights; and (4) that seriously affected the fairness, integrity, or pub-
lic reputation of the judicial proceedings. United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010). An error is plain only if it is con-
trary to a federal statute or on-point precedent from this Court or
the United States Supreme Court. United States v. Hoffman, 710 F.3d
1228, 1232 (11th Cir. 2013).
III.
Johnson challenges the constitutionality of 18 U.S.C.
§ 922(g)(1), which generally prohibits individuals with felony con-
victions from possessing firearms or ammunition. According to
Johnson, this prohibition runs afoul of the Second Amendment,
which states that: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
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23-11885 Opinion of the Court 5
Arms, shall not be infringed.” U.S. Const. amend. II. We conclude
that he has not established plain error.
To assess the constitutionality of the prohibition on felons
possessing firearms, we begin with the Supreme Court’s decision
in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the
Court considered a Second Amendment challenge to a District of
Columbia law that barred the private possession of handguns in
homes. Id. at 635. After considering both the text and history of the
Second Amendment, the Court concluded that it conferred on an
individual a right to keep and bear arms. Id. at 595. The Court held
that the District’s ban on handgun possession in the home violated
the Second Amendment. Id. at 635. But the Court acknowledged
that the Second Amendment right to keep and bear arms was “not
unlimited,” emphasizing that “nothing in [its] opinion should be
taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill.” Id. at 626. Indeed, the
Court labeled these restrictions as “presumptively lawful.” Id. at
627 n.26.
After Heller, we considered a constitutional challenge to
§ 922(g)(1)’s prohibition on felons possessing firearms. See Rozier,
598 F.3d at 770. We rejected this challenge, holding that “statutes
disqualifying felons from possessing a firearm under any and all cir-
cumstances do not offend the Second Amendment.” Id. at 771. We
noted that Heller recognized that prohibiting felons from possessing
firearms was a “presumptively lawful longstanding prohibition.”
Id. (internal quotation marks omitted).
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6 Opinion of the Court 23-11885
Several years later, the Supreme Court in Bruen considered
a Second Amendment challenge to New York’s gun-licensing re-
gime that limited when a law-abiding citizen could obtain a license
to carry a firearm outside the home. 597 U.S. at 11. The Court rec-
ognized that “the Second and Fourteenth Amendments protect an
individual’s right to carry a handgun for self-defense outside the
home.” Id. at 10. The Court explained that to determine whether a
restriction on firearms was constitutional, courts must begin by
asking whether the firearm regulation at issue governs conduct
that falls within the plain text of the Second Amendment. Id. at 17.
If the regulation does cover such conduct, the court may uphold it
only if the government “affirmatively prove[s] that its firearms reg-
ulation is part of the historical tradition that delimits the outer
bounds of the right to keep and bear arms.” Id. at 19. Bruen empha-
sized that Heller established the correct test for determining the
constitutionality of gun restrictions. See id. at 39. And, like Heller,
Bruen described Second Amendment rights as extending only to
“law-abiding, responsible citizens.” Id. at 26 (internal quotation
marks omitted).
Johnson challenges § 922(g)(1)’s prohibition on felons pos-
sessing firearms based on Bruen. He argues that the government
cannot show that a ban on felons possessing firearms “is consistent
with the Nation’s historical tradition of firearms regulation” be-
cause at the time that the Second Amendment was enacted there
was “no federal or state law precluding the possession of firearms
by a convicted felon.” Appellant’s Br. 7.
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23-11885 Opinion of the Court 7
Johnson cannot demonstrate plain error because he has not
identified any on-point precedent from this Court or the United
States Supreme Court holding that § 922(g)(1)’s prohibition on fel-
ons possessing firearms is unconstitutional. To the contrary, John-
son’s constitutional argument is foreclosed by precedent. After
Bruen, we considered another Second Amendment challenge to
§ 922(g)(1). See United States v. Dubois, 94 F.4th 1284 (11th Cir.
2024). We held that the challenge was foreclosed by Rozier, which
“interpreted Heller as limiting the [Second Amendment] right to
law-abiding and qualified individuals, and as clearly excluding fel-
ons from those categories by referring to felon-in-possession bans
as presumptively lawful.” Id. at 1293 (internal quotation marks
omitted). Although the defendant argued that Bruen abrogated our
decision in Rozier, we observed that even in Bruen, the Supreme
Court continued to describe the right to bear arms as extending
only to “law-abiding, responsible citizens.” Id. (internal quotation
marks omitted). We thus concluded that Bruen did not abrogate
Rozier. Because Rozier foreclosed a Second Amendment challenge
to § 922(g)(1), we affirmed the defendant’s conviction. Id.
The Supreme Court’s recent decision in United States v.
Rahimi, No. 22-915, 2024 WL 3074728 (June 21, 2024), does not
change our analysis. In Rahimi, the Court considered a Second
Amendment challenge to the federal statute that prohibits an indi-
vidual who is subject to a domestic violence restraining order from
possessing a firearm when the order includes a finding that he rep-
resents a credible threat to the safety of an intimate partner or a
child of that partner or individual. See id. at *3 (citing 18 U.S.C.
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8 Opinion of the Court 23-11885
§ 922(g)(8)). In Rahimi, the Court held that this firearm restriction
was constitutional. And it once again declared that the prohibition
on “the possession of firearms by ‘felons’ . . . [is] ‘presumptively
lawful.’” Id. at *10 (quoting Heller, 554 U.S. at 626, 627 n.26).
AFFIRMED.