The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12759
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY WASHINGTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20583-PCH-1
____________________
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2 Opinion of the Court 22-12759
Before JILL PRYOR, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM:
Anthony Washington appeals his conviction for possessing
a firearm and ammunition as a felon, in violation of 18 U.S.C.
§ 922(g)(1). He argues that the district court abused its discretion
when it refused to give one of his requested jury instructions. He
also challenges the constitutionality of § 922(g)(1)’s prohibition on
felons possessing firearms and ammunition. After careful consider-
ation, we affirm.
I.
While on patrol late one night, Miami-Dade police officers
Jonathan Marcano and Estuardo Gonzalez observed a Ford Fusion
drive into the lane for oncoming traffic. The officers stopped the
vehicle, which parked in a nearby driveway.
Marcano approached the driver’s side of the vehicle while
Gonzalez approached the passenger’s side. Marcano tapped the
driver’s side window and asked the driver to lower it. The driver
did not respond. Both officers knocked on the windows several
times and repeatedly instructed the occupants to lower the win-
dows. Eventually, the vehicle’s doors unlocked. Marcano opened
the door on the driver’s side of the vehicle. He then asked the driver
for identification, but the driver did not respond. Marcano ob-
served that the driver was leaning forward in his seat as if he were
trying to hide something. Marcano asked the driver to step out of
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22-12759 Opinion of the Court 3
the vehicle. As the driver exited the vehicle, Marcano saw a firearm
tucked between the driver’s seat and the center console.
After seeing the firearm, Marcano asked whether there were
any firearms in the vehicle, and the driver gave no response. Even-
tually, the driver provided identification. Marcano ran a back-
ground check and learned that the driver, Washington, was a con-
victed felon.
While Marcano was speaking with Washington, Gonzalez
focused on the passenger, Latoya Benjamin. Benjamin told Gonza-
lez that she and Washington had been drinking and were “highly
intoxicated.” Doc. 58 at 135. 1 When Gonzalez asked whether there
were any firearms in the vehicle, Benjamin responded that there
was a firearm, which was registered to her, in the glove box. Gon-
zalez ran a check on the vehicle, which showed that it was regis-
tered to both Benjamin and Washington.
Because Washington was a convicted felon who had a fire-
arm tucked next to him, Marcano placed him under arrest. When
officers recovered the firearm from the vehicle, they found that it
was loaded with one bullet. Officers later discovered that Benjamin
had purchased the firearm.
Washington was charged with one count of knowingly pos-
sessing a firearm and ammunition as a convicted felon. See
18 U.S.C. § 922(g)(1). He pleaded not guilty.
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-12759
The case went to trial. Marcano and Gonzalez testified
about the traffic stop.2 The government also called officer Jose Sar-
dina. He testified about an incident that occurred a few months af-
ter Washington’s arrest. While on patrol, Sardina saw a Ford Fu-
sion with an expired registration sticker. He stopped the vehicle
and found that Washington was driving. Washington was alone in
the vehicle. Because there was an outstanding warrant for his ar-
rest, Sardina arrested him.
Washington called Benjamin to testify in his defense. She
testified that she and Washington had been in an on-again-off-again
relationship for several years and had children together. She ex-
plained that she co-owned the Ford Fusion with Washington and
that she was its main driver.
Benjamin also testified about the firearm found in the vehi-
cle when the officers stopped it. She explained that she had pur-
chased the weapon to protect herself because she lived in a danger-
ous neighborhood. She told the jury that every time she left the
house, she took the gun with her. Usually, she stored the gun in
her car’s glove compartment. But when she was driving at night,
she kept the gun next to her.
Benjamin described the events leading up to the officers’ dis-
covery of the gun in the Ford Fusion. That evening, she drove the
2 The parties stipulated that Washington had previously been convicted of a
felony, he knew of his felony conviction, and the firearm and ammunition at
issue had moved in interstate or foreign commerce.
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22-12759 Opinion of the Court 5
vehicle to visit Washington at his sister’s house. During this drive,
she moved the gun from the glove compartment to the area be-
tween the driver’s seat and center console because Washington’s
sister lived in a dangerous area. At the sister’s house, Benjamin and
Washington chatted and drank alcohol. When they ran out of liq-
uor, they went to a liquor store. Washington told Benjamin that
she was drunk and insisted on driving to the liquor store. The two
then drove around town while drinking and listening to music.
Benjamin described what happened when officers stopped
the car. She testified that when an officer asked if there was a gun
in the car, she responded that her gun was in the glove compart-
ment. She identified the gun found next to the driver’s seat as her
weapon. She testified that during that evening, she and Washing-
ton had not talked about the gun. She told the jury that she did not
believe Washington knew the gun was between the driver’s seat
and center console because it was dark and they were both drunk.
At the trial’s conclusion, the district court instructed the jury
that to convict Washington, it had to find beyond a reasonable
doubt that he “knowingly possessed a firearm or ammunition.”
Doc. 59 at 37. The court explained that the law recognized several
kinds of possession including actual, constructive, sole, and joint
possession. The court instructed that a person has “actual posses-
sion” of a thing if he “knowingly has direct physical control of it”
and “constructive possession” of a thing if he “doesn’t have actual
possession of it[] but has both the power and intention to take con-
trol over it later.” Id. at 38. And the court explained that a person
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6 Opinion of the Court 22-12759
has “sole possession” of a thing if he “is the only person to possess
it” and “joint possession” if he is among “two or more people [who]
share possession of it.” Id.
The court also instructed the jury about the requirement
that the defendant act “knowingly.” It instructed that “knowingly”
referred to an act “done voluntarily and intentionally and not be-
cause of a mistake or by accident.” Id. at 39.
Washington asked the court to give the following additional
instruction regarding mere presence:
Mere presence does not alone establish possession. In-
deed, mere proximity to the firearm or ammunition
or awareness of its location is not, without more, suf-
ficient to establish possession.
Similarly, mere presence in the property where the
firearm or ammunition is located, or mere association
with the person who owns or controls the firearm or
ammunition, is not, without more, sufficient to estab-
lish possession.
Doc. 23 at 20. The court refused to give the instruction, explaining
that its instructions already covered mere possession.
During deliberations, the jury asked the court to clarify the
meaning of the phrase “take control of” for purposes of “construc-
tive possession.” Doc. 32 at 1. The court instructed the jurors to
use their common understanding of the phrase.
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22-12759 Opinion of the Court 7
The jury ultimately found Washington guilty of possessing
a firearm as a convicted felon. The court sentenced him to 46
months’ imprisonment.
II.
We “review a district court’s refusal to give a defendant’s
requested theory-of-the-defense instruction for an abuse of discre-
tion.” United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008).
Although we generally review de novo the constitutionality
of a statute, we review for plain error when a defendant raises his
constitutional challenge for the first time on appeal. United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010). To show plain error, a
defendant must establish (1) there was error, (2) that was plain,
(3) that affected the defendant’s substantial rights, and (4) that seri-
ously affected the fairness, integrity, or public reputation of judicial
proceedings. Id. An error is plain only if it is contrary 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.
Washington raises two issues on appeal. First, he argues that
the district court erred when it refused to give his proposed jury
instruction. Second, he argues that the federal prohibition on felons
possessing firearms is facially unconstitutional. We address each is-
sue in turn.
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8 Opinion of the Court 22-12759
A.
Washington argues that the district court abused its discre-
tion when it refused to give his proposed instruction regarding
mere presence. A district court abuses its discretion when it refuses
to give a requested instruction if (1) “the requested instruction was
a correct statement of the law,” (2) “its subject matter was not sub-
stantially covered by the charge actually given,” and (3) “its subject
matter dealt with an issue in the trial court that was so important
that the failure to give it seriously impaired the defendant’s ability
to defend himself.” Woodard, 531 F.3d at 1364 (internal quotation
marks omitted). A theory-of-defense charge is unwarranted if “the
charge given adequately covers the substance of the requested in-
struction.” United States v. Ndiaye, 434 F.3d 1270, 1293 (11th Cir.
2006).
Here, the district court did not abuse its discretion when it
refused to give Washington’s proposed instruction because the
court’s other instructions adequately covered the substance of the
proposed instruction. The court instructed the jury that it needed
to find that Washington “knowingly” possessed the gun and de-
fined “knowingly” as “an act . . . done voluntarily and intentionally
and not because of a mistake or by accident.” Doc. 59 at 39. Having
received these instructions, the jury could not have attributed pos-
session to Washington based on his mere presence in the vehicle
where a gun was found because mere presence would not establish
voluntary and intentional possession. See Woodard, 531 F.3d at
1365.
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22-12759 Opinion of the Court 9
The fact that the jury asked a question during deliberations
about the meaning of the phrase “take control of” does not change
our analysis. The court instructed the jury that to convict Wash-
ington, it had to find that he “knowingly” possessed the gun, and
the court’s definition of “knowingly” made clear that he could not
be convicted based on his mere presence. We thus conclude that
the district court did not abuse its discretion in refusing to give
Washington’s proposed instruction.
B.
We now turn to Washington’s challenge to the constitution-
ality of 18 U.S.C. § 922(g)(1), which generally prohibits individuals
with felony convictions from possessing firearms or ammunition.
According to Washington, 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 Arms, shall not be infringed.” U.S. Const. amend. II.
Because Washington raises his constitutional challenge for the first
time on appeal, we review for plain error only.3 We conclude that
he has not shown plain error.
3 Washington argues that even though he did not raise a Second Amendment
challenge below, we should review this issue de novo because he is raising a
jurisdictional issue. But he cites no authority, and we have found none holding
that the question whether a statutory prohibition on a person’s possession of
a firearm or ammunition violates the Second Amendment implicates jurisdic-
tion. Because we conclude that Washington’s constitutional challenge does
not raise a jurisdictional issue, plain error is the appropriate standard of review.
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10 Opinion of the Court 22-12759
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 ban on handgun possession in the home violated the Sec-
ond Amendment. Id. at 635. But the Court acknowledged that the
Second Amendment right to keep and bear arms was “not unlim-
ited,” emphasizing that “nothing in [its] opinion should be taken to
cast doubt on longstanding prohibitions on the possession of fire-
arms by felons and the mentally ill.” Id. at 626. Indeed, the Court
labeled such restrictions as “presumptively lawful.” Id. at 627 n.26.
After Heller, we considered a constitutional challenge to
§ 922(g)(1)’s prohibition on felons’ possession of firearms. See
United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010). We held
that “statutes disqualifying felons from possessing a firearm under
any and all circumstances do not offend the Second Amendment.”
Id. at 771.
Several years later, the Supreme Court considered a Second
Amendment challenge to New York’s gun-licensing regime that
See United States v. Alfonso, 104 F.4th 815, 828–29 & n.18 (11th Cir. 2024) (ex-
plaining that plain error review applies to a “garden variety constitutional at-
tack” that the defendant failed to raise in the district court).
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22-12759 Opinion of the Court 11
limited when a law-abiding citizen could obtain a license to carry a
firearm outside the home. See N.Y. State Rifle & Pistol Ass’n v. Bruen
597 U.S. 1, 11 (2022). The Court recognized 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 “af-
firmatively prove[s] that its firearms regulation is part of the histor-
ical tradition that delimits the outer bounds of the right to keep and
bear arms.” Id. at 19. Bruen emphasized that Heller established the
correct test for determining the constitutionality of gun re-
strictions. 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).
Based on Bruen, Washington challenges § 922(g)(1)’s prohi-
bition on felons possessing firearms. He argues that the prohibition
is unconstitutional because there is no “‘tradition’ of felon disarma-
ment dating to the Founding.” Appellant’s Br. 11.
Washington 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, his
constitutional argument is foreclosed by precedent. After Bruen, we
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12 Opinion of the Court 22-12759
considered another Second Amendment challenge to § 922(g)(1).
See United States v. Dubois, 94 F.4th 1284, 1289 (11th Cir. 2024). We
held that the challenge was foreclosed by Rozier, which “inter-
preted Heller as limiting the [Second Amendment] right to law-
abiding and qualified individuals and as clearly excluding felons
from those categories by referring to felon-in-possession bans as
presumptively lawful.” Id. at 1293 (internal quotation marks omit-
ted). Although the defendant argued that Bruen abrogated our de-
cision 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, 144 S. Ct. 1889 (2024), does not change our analysis. In
Rahimi, the Court considered a Second Amendment challenge to
the federal statute that prohibits an individual who is subject to a
domestic violence restraining order from possessing a firearm
when the order includes a finding that he represents a credible
threat to the safety of an intimate partner or a child of that partner
or individual. See id. at 1898 (citing 18 U.S.C. § 922(g)(8)). It held
that this firearm restriction was constitutional. And it once again
declared that the prohibition on “the possession of firearms by ‘fel-
ons’ . . . [is] ‘presumptively lawful.’” Id. at 1902 (quoting Heller,
554 U.S. at 626, 627 n.26).
AFFIRMED.