United States v. Cisneros

Case: 23-40625 Document: 100-1 Page: 1 Date Filed: 03/06/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 23-40625

March 6, 2025

____________

Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Juan David Cisneros,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:23-CR-67-1

______________________________

Before Graves, Higginson, and Wilson, Circuit Judges.

Per Curiam:

Juan David Cisneros appeals his conviction and sentence for

possessing ammunition after having been convicted of a felony. For the

reasons that follow, we AFFIRM his conviction but VACATE his sentence

and REMAND for resentencing.

I

A

In January 2023, the Webb County Sheriff’s Office, the Drug

Enforcement Administration, and the Federal Bureau of Investigation

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executed a search warrant at the two-story house where Cisneros was living

with numerous family members. The search resulted from an ongoing

narcotics investigation during which a confidential informant had purchased

a usable amount of cocaine from Cisneros on two separate occasions in

December. Cisneros resided on the second floor of the house, which

consisted of at least two bedrooms and could only be accessed by an external

stairwell. The rest of his family resided on the first floor.

One of the two bedrooms on the second floor was Cisneros’s

bedroom, in which law enforcement found 94 rounds of 5.56-millimeter

ammunition and 4 rounds of .223 caliber ammunition. Cisneros told law

enforcement that his mother-in-law had purchased the ammunition and that

he had last used it in July 2022 when he shot a 5.56-millimeter rifle at his

cousin’s ranch on his birthday. According to Cisneros, he had sold the rifle

sometime thereafter. In the bedroom next to Cisneros’s, law enforcement

recovered multiple items consistent with drug distribution: several plastic

sandwich bag corners, a small scale, spoons, cutting agents, and a tray

containing a white powdery residue. The search did not yield any drugs or

any firearms attributable to Cisneros. 1

B

Cisneros was charged with possessing ammunition while being a

convicted felon in violation of 18 U.S.C. § 922(g)(1). He moved to dismiss

the indictment on the grounds that (1) § 922(g)(1) is facially unconstitutional

in light of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and

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1

Law enforcement did find a 9-millimeter pistol and associated ammunition in a

drawer of a nightstand in a first-floor bedroom. Cisneros’s brother Daniel claimed

ownership of the firearm, which was corroborated by the presence of Daniel’s wallet

containing his driver’s license next to the firearm. Cisneros and Daniel both denied that

Cisneros had ever touched the firearm.

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(2) § 922(g)(1) exceeds Congress’s power to regulate under the Commerce

Clause. The district court denied the motion. Cisneros pleaded guilty

without a plea agreement but reserved the right to challenge his conviction

under the Second Amendment.

In the Presentence Investigation Report (“PSR”), the Probation

Office calculated a Sentencing Guidelines range of 92 to 115 months, based

on a total offense level of 24 and a criminal history category of V. The total

offense level included a four-level enhancement under U.S.S.G.

§ 2K1.2(b)(6)(B) for the “use[] or possess[ion of] any firearm or ammunition

in connection with another felony offense,” namely the sale of narcotics.

Neither Cisneros nor the government objected to the PSR, and the district

court adopted the PSR at the sentencing hearing. The court sentenced

Cisneros to ninety-six months of imprisonment, followed by three years of

supervised release. Cisneros timely appealed, Fed. R. App. P. 4(b)(1)(A),

(b)(2), and we have jurisdiction over this appeal under 18 U.S.C. § 3742 and

28 U.S.C. § 1291.

II

Cisneros appeals his conviction and sentence. He contends (1) that

his conviction under 18 U.S.C. § 922(g)(1) violates the Second Amendment

in light of Bruen; (2) that § 922(g)(1) exceeds Congress’s power to regulate

under the Commerce Clause; and (3) that the district court plainly erred by

applying an enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of

ammunition in connection with drug trafficking activity. Because Cisneros

correctly concedes that his Commerce Clause argument is foreclosed by

binding precedent, see United States v. Alcantar, 733 F.3d 143, 145–46 (5th

Cir. 2013), we need not discuss it further.

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A

We turn first to Cisneros’s Second Amendment challenge. Before the

district court and in his opening brief on appeal, Cisneros presented only a

facial challenge to the constitutionality of § 922(g)(1) under the Second

Amendment. In his reply brief before this court, Cisneros added an as-

applied challenge, seemingly prompted by the government’s argument in its

opposition brief. However, while Cisneros adequately raised a facial

challenge to § 922(g)(1) in the district court, his objection was not

“sufficiently specific to alert the district court” to his assertion that

§ 922(g)(1) is unconstitutional as applied to him in particular. United States

v. Neal, 578 F.3d 270, 272 (5th Cir. 2009. We ordinarily do not reach issues

that are raised for the first time in a reply brief. United States v. Davis, 602

F.3d 643, 648 n.7 (5th Cir. 2010). But even if Cisneros had preserved his as-

applied challenge, his argument would be unavailing for the reasons

discussed below. See, e.g., United States v. Brune, 991 F.3d 652, 661 n.28 (5th

Cir. 2021). We review Cisneros’s preserved facial challenge de novo, while

we review his unpreserved as-applied challenge only for plain error. United

States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014).

The Second Amendment provides 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. The

relevant portion of § 922(g)(1) makes it unlawful for any person “who has

been convicted in any court of[] a crime punishable by imprisonment for a

term exceeding one year . . . to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or

ammunition.” 18 U.S.C. § 922(g)(1). In Bruen, the Supreme Court set forth

a test for assessing the constitutionality of a statute under the Second

Amendment. 597 U.S. at 15–19, 22–25. Under that test, if “the Second

Amendment’s plain text covers an individual’s conduct, the Constitution

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presumptively protects that conduct,” and “[t]he government must then

justify its regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” 2 Id. at 24.

This court addressed preserved facial and as-applied Bruen challenges

to § 922(g)(1) in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024).

Reviewing Diaz’s challenges to § 922(g)(1) de novo, we held that although

the Second Amendment’s plain text covers the conduct prohibited by the

statute, the Government had met its burden to demonstrate that disarming a

person with Diaz’s criminal history of theft of a vehicle was consistent with

historical tradition. Diaz, 116 F.4th at 466–72. The court thus held that

§ 922(g)(1) was constitutional as applied to Diaz and, by extension, that

§ 922(g)(1) is facially constitutional because Diaz could not “establish that

no set of circumstances exists under which the statute would be valid.” Id.

at 471–72 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

Cisneros’s facial challenge to § 922(g)(1) is therefore foreclosed by Diaz.

Cisneros’s unpreserved as-applied challenge fares no better. Our

court has rejected Second Amendment challenges to § 922(g)(1) based on

Bruen on plain error review, noting that the law remains unsettled and

concluding that any error is not clear or obvious under the contours of the

Bruen test because there is no binding precedent holding § 922(g)(1) to be

unconstitutional and because it is unclear that Bruen dictates such a result.

See, e.g., United States v. Wilson, 111 F.4th 567, 570 (5th Cir. 2024); United

States v. Jones, 88 F.4th 571, 573–74 (5th Cir. 2023), cert. denied, 144 S. Ct.

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2

Cisneros’s brief consequently raises a threshold issue—whether the Second

Amendment safeguards the possession of ammunition in addition to firearms. The parties,

relying on cases from other circuits and the necessary relationship between ammunition

and functional firearms, agree that the Second Amendment extends to the possession of

ammunition. However, we decline to address this issue because, even if the parties are

correct, Cisneros’s arguments are unavailing for the reasons set out below.

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1081 (2024); see also Diaz, 116 F.4th at 466–72 (rejecting a preserved

as-applied challenge to § 922(g)(1) where the prior felony conviction was for

vehicle theft); United States v. Cameron, 99 F.4th 432, 435–36 (8th Cir. 2024)

(rejecting unpreserved as-applied challenge to conviction under § 922(g)(1)

for being a felon in possession of ammunition), cert. denied, No. 24-5151, 2024

WL 4427387 (U.S. Oct. 7, 2024). Cisneros cites no published authority, nor

have we found any, holding § 922(g)(1) unconstitutional in light of Bruen as

applied to the possession of ammunition by felons whose prior convictions

are drug felonies. A “lack of binding authority is often dispositive in the

plain-error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir.

2015). Because Cisneros’s argument would “require the extension of

existing precedent,” he “cannot meet the plain error standard” with respect

to his as-applied challenge to § 922(g)(1). Jones, 88 F.4th at 574.

Accordingly, we affirm Cisneros’s conviction under § 922(g)(1).

B

With respect to his sentence, Cisneros argues that the district court

plainly erred by applying an enhancement under § 2K2.1(b)(6)(B) for

possessing ammunition in connection with another felony offense. As he

concedes, Cisneros raises this issue for the first time on appeal. Because

Cisneros failed to preserve this challenge through a contemporaneous

objection to the district court’s Guidelines calculation, we review for plain

error. See Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). To

show plain error, Cisneros must identify (1) a forfeited error (2) that is clear

or obvious, rather than subject to reasonable dispute, and (3) that affects his

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If

he satisfies the first three requirements, we may, in our discretion, remedy

the error if the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (cleaned up). A district court

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commits “significant procedural error” when it improperly calculates the

appropriate Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).

Section 2K2.1(b)(6)(B) provides, in relevant part, that a defendant’s

offense level should be increased by four levels if the defendant “used or

possessed any firearm or ammunition in connection with another felony

offense.” 3 U.S.S.G. § 2K2.1(b)(6)(B) (2018). For § 2K2.1(b)(6)(B) to

apply, the “the firearm or ammunition [must have] facilitated, or had the

potential of facilitating, another felony offense.” Id. § 2K2.1 cmt. n.14(A).

Application Note 14(B) further states that the enhancement is warranted “in

the case of a drug trafficking offense in which a firearm is found in close

proximity to drugs, drug-manufacturing materials, or drug paraphernalia”

because “the presence of the firearm has the potential of facilitating another

felony offense.” Id. § 2K2.1 cmt. n.14(B) (emphasis added).

Relying on United States v. Eaden, 914 F.3d 1004 (5th Cir. 2019),

Cisneros argues that this “conclusive presumption” of facilitation based on

proximity does not apply where, as here, the defendant is found in possession

of ammunition but no firearm. Cisneros contends that the district court’s

application of § 2K2.1(b)(6)(B) was therefore error because the record is

devoid of evidence that Cisneros’s possession of the ammunition found in his

bedroom facilitated or had the potential to facilitate felony drug crimes. The

Government counters that the type of ammunition found in Cisneros’s

bedroom is typically discharged from AR-style assault rifles and, therefore,

that the district court could have concluded that Cisneros used the

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3

“Another felony offense” is defined as “any federal, state, or local offense . . .

punishable by imprisonment for a term exceeding one year, regardless of whether a criminal

charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C) (2018).

Cisneros does not challenge the PSR’s finding that the relevant other offense—drug

trafficking—would qualify as a “felony offense.”

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ammunition to “court[] the impression that an assault rifle was nearby.”

The Government attempts to distinguish Eaden on the basis that it was a

preserved-error case demanding a less onerous burden for demonstrating

reversible error.

In Eaden, police executed a search warrant on Eaden’s home after

making a controlled purchase of crack cocaine from Eaden at his residence.

914 F.3d at 1006. In Eaden’s residence, police discovered 5.5 grams of

cocaine base and 19 rounds of ammunition, id., which was “easily accessible

and stored in close proximity to the illegal drugs,” id. at 1010 (emphasis in

original). However, there was no evidence that “the ammunition was kept

in plain sight, either during the controlled purchase or at any other time.” Id.

at 1010. Eaden eventually pleaded guilty to possessing ammunition as a felon

but objected to the application of the four-level enhancement under

§ 2K2.1(b)(6)(B). Id. at 1006–07.

Although our court concluded that “possession of ammunition alone

[without a firearm], under appropriate circumstances . . . certainly may be

sufficient for the four-level enhancement,” id. at 1008, we further held that

the “text of Application Note 14(B) is limited—it only applies when both

trafficking and a firearm are present,” id. at 1009. The court held that to

demonstrate facilitation where the offense involves only ammunition, “the

government must adduce facts tending to show that the ammunition

facilitated or had the potential to facilitate the drug trafficking offense.” Id.

at 1010. “Ammunition has the potential to facilitate a trafficking operation

when it is displayed or brandished in a manner that has the potential to

embolden the trafficker and protect his operation by implying that he has a

gun, thereby deterring buyers, co-conspirators, or competitors from taking

adverse action.” Id. at 1009. “For ammunition to have such a deterrent

effect to potential threats, it would, inter alia, be necessary that it be in plain

sight to purchasers or others involved in the trafficking.” Id. Ammunition

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that is merely stored in close proximity to drugs or drug paraphernalia, even

if easily accessible, does not sufficiently facilitate a drug trafficking offense

for purposes of § 2K2.1(b)(6)(B). 4 Id. at 1010.

Concluding that the district court had clearly erred by applying

§ 2K2.1(b)(6)(B), we vacated Eaden’s sentence. Id. at 1009–10. The court

reasoned that the record failed to “demonstrate that the ammunition was

kept in plain sight, either during the controlled purchase or at any other

time” and that the government had “pointed to no facts or circumstances

that indicate that Eaden possessed the ammunition ‘in connection with’ his

drug trafficking offense.” Id. at 1010. That the ammunition was stored in

close proximity to, and was easily accessible from, the crack cocaine also

found in Eaden’s residence was insufficient to support the enhancement. Id.

Based on Eaden’s holding and the undisputed facts before us,

Cisneros has shown sentencing error. Apparently, all participants—the

government, defense counsel, the Probation Office—failed to identify our

Eaden case in the district court. As in Eaden, there is no evidence that the

ammunition found in Cisneros’s bedroom was ever plainly visible from any

location where drug transactions occurred; the record does not establish that

any drug transaction took place in Cisneros’s residence, let alone in his

bedroom. And unlike in Eaden, no quantifiable amount of actual drugs was

recovered from the residence. That the ammunition may have been proximal

to and easily accessible from the drug paraphernalia found elsewhere in

Cisneros’s residence does not suffice. See id. at 1010. Given its materially

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4

Our court acknowledged in Eaden that our decision conflicted with the Sixth

Circuit’s application of § 2K2.1(b)(6)(B) in United States v. Coleman, 627 F.3d 205 (6th

Cir. 2010). Eaden, 914 F.3d at 1009. We now further note that the First Circuit last year

agreed with our interpretation of this Guidelines provision in United States v. Nieves-Díaz,

99 F.4th 1, 8 (1st Cir.), cert. denied, 145 S. Ct. 307 (2024) (Mem.).

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indistinguishable facts, Eaden “plainly dictate[s]” a finding of error here.

United States v. Sanches, 86 F.4th 680, 686 (5th Cir. 2023) (quoting Wallace

v. Mississippi, 43 F.4th 482, 500 (5th Cir. 2022)). The district court’s

sentencing error was thus clear or obvious. See Puckett, 556 U.S. at 135.

The district court’s plain error also affected Cisneros’s substantial

rights because he has shown a reasonable probability that but for the error, he

would have received a lesser sentence. See United States v. Johnson, 907 F.3d

304, 305 (5th Cir. 2018). Absent the four-level enhancement of

§ 2K2.1(b)(6)(B), Cisneros’s Guidelines range would have been 63 to 78

months, well below the range of 92 to 115 months within which he was

sentenced. “When a defendant is sentenced under an incorrect Guidelines

range[,] . . . the error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome absent the error.”

Molina-Martinez, 578 U.S. at 198. A district court’s use of an incorrect

Guidelines range affects a defendant’s substantial rights if, “[a]t the very

least, the district court’s explanation did not make clear that the district court

based the sentence it selected on factors independent of the Guidelines.”

United States v. Wikkerink, 841 F.3d 327, 338 (5th Cir. 2016).

Here, the district court explicitly tied the sentence imposed to the

Guidelines range. The court explained that “with a range of 92 to 115 months

. . . an appropriate sentence is 96 months,” noting that Cisneros’s sentence

“is not at the bottom end of the Guideline range, but it’s close.” The court

did not indicate that the sentence was based on factors independent of the

Guidelines, notwithstanding its statement that Cisneros’s sentence was

“deservedly long.” Given the above, Cisneros has demonstrated a

reasonable probability that he would have received a lower sentence absent

the erroneous application of § 2K2.1(b)(6)(B). See Johnson, 907 F.3d at 305.

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Finally, turning to the fourth plain-error prong, a case presents

exceptional circumstances warranting fourth-prong relief where plain

sentencing error is “reasonably likely to have resulted in a longer prison

sentence than necessary and there are no countervailing factors that

otherwise further the fairness, integrity, or public reputation of judicial

proceedings.” Rosales-Mireles v. United States, 585 U.S. 129, 143 (2018). “In

the ordinary case[,] . . . the failure to correct a plain Guidelines error that

affects a defendant’s substantial rights will seriously affect the fairness,

integrity, and public reputation of judicial proceedings.” Id. at 145. We

conclude that the instant case is such an “ordinary case.” Id. Accordingly,

we exercise our discretion to vacate Cisneros’s sentence.

III

For the foregoing reasons, we AFFIRM Cisneros’s conviction,

VACATE his sentence, and REMAND for resentencing not inconsistent

with this opinion.

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