United States v. Brown

Case: 24-60490 Document: 53-1 Page: 1 Date Filed: 05/14/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 24-60490

Summary Calendar FILED

____________ May 14, 2025

Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Marcus Allen Brown,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:18-CR-117-1

______________________________

Before Richman, Douglas, and Ramirez, Circuit Judges.

Per Curiam: *

Marcus Allen Brown was indicted under 18 U.S.C. §§ 922(g)(1) and

924(a)(2) on a single count of being a felon in possession of a firearm. Brown

moved to dismiss the indictment, arguing that § 922(g)(1) as applied to him

violates his Second Amendment rights. The district court denied the motion.

Brown pleaded guilty, but his plea agreement reserved the right to appeal the

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 24-60490

district court’s order. Brown does so, and he raises four other issues in this

appeal. We affirm.

I

Brown was indicted for “knowingly possess[ing] a firearm” as a felon

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Section 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 . . . possess in or affecting commerce, any firearm . . . .” 1 Section

924 sets forth the penalties for violations of § 922. 2 Brown has previous

felony convictions for burglary, drug possession, and unlawful possession of

a firearm. A superseding indictment added an additional sentencing

allegation under § 924(e)(1). Brown moved to dismiss the superseding

indictment, arguing that § 922(g)(1) as applied to him violates the Second

Amendment under Bruen 3 and its progeny. The district court denied the

motion.

Brown then signed a plea agreement with the Government, and he

pleaded guilty to the single count charged in the superseding indictment.

The agreement included the following appeal waiver:

Defendant . . . expressly waives . . . the right to appeal the

conviction and sentence imposed in this case, or the manner in

which that sentence was imposed, . . . on any ground

whatsoever with the exception that the Defendant retains the

right to pursue a direct appeal of the District Court’s order

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1

18 U.S.C. § 922(g)(1).

2

Id. § 924.

3

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

2

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No. 24-60490

regarding the Defendant’s motion to dismiss pursuant to

[Bruen] . . . .

Brown was sentenced to 120 months of imprisonment, to run concurrently

with other sentences, and three years of supervised release. Brown timely

appealed.

II

Brown raises five issues. He argues that 18 U.S.C. § 922(g)(1) as

applied to him violates the Second Amendment, facially violates the Second

Amendment, is unconstitutionally vague, violates the Commerce Clause, and

violates equal protection under the Fifth Amendment. The first two

challenges fail under our precedents, and the remaining three challenges are

waived by his plea agreement.

A

The district court rejected Brown’s as-applied challenge to

§ 922(g)(1), reasoning that neither Bruen nor recent Fifth Circuit cases

overruled earlier precedents that upheld § 922(g)(1). Because Brown

preserved this challenge, “we review the constitutionality of § 922(g)(1) de

novo.” 4

We recently described the “two-step framework for analyzing

whether a particular firearm regulation is consistent with the Second

Amendment.” 5

First, the Second Amendment’s plain text must cover the

defendant’s conduct, in which case the Constitution

presumptively protects that conduct. Second, if the

defendant’s actions are covered, “[t]he government must then

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4

United States v. Schnur, 132 F.4th 863, 866-67 (5th Cir. 2025).

5

Id. at 867.

3

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No. 24-60490

justify its regulation by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.” “Only

then may a court conclude that the individual’s conduct falls

outside the Second Amendment’s ‘unqualified command.’” 6

“The plain text of the Second Amendment covers the conduct prohibited by

§ 922(g)(1),” 7 so we proceed to the second step and consider whether

“regulating [Brown’s] possession of a firearm is ‘consistent with the

Nation’s historical tradition’ of disarming someone with a criminal history

analogous to his.” 8

Brown has several burglary convictions that qualify under § 922(g)(1)

because they are “punishable by imprisonment for a term exceeding one

year.” 9 Our cases reveal that disarming burglars “is consistent with the

Nation’s historical tradition of firearm regulation.” 10 In United States v.

Schnur, 11 we explained that Schnur’s “1996 conviction[]

for . . . burglary . . . lend[s] further support to the constitutionality of

§ 922(g)(1) as applied to Schnur.” 12 We explained that “colonial-era laws

targeting theft” often provided for capital punishment, so “disarming the

defendant who had been convicted . . . fits within our Nation’s tradition of

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6

Id. (alteration in original) (citations omitted) (quoting N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 24 (2022)).

7

United States v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024), petition for cert. filed,

(U.S. Feb. 18, 2025) (No. 24-6625).

8

Schnur, 132 F.4th at 867 (quoting Bruen, 597 U.S. at 24).

9

18 U.S.C. § 922(g)(1).

10

Bruen, 597 U.S. at 24.

11

132 F.4th 863 (5th Cir. 2025).

12

Id. at 870.

4

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regulating firearms.” 13 As we reasoned in United States v. Diaz, 14 “if capital

punishment was permissible to respond to theft, then the lesser restriction of

permanent disarmament that § 922(g)(1) imposes is also permissible.” 15

Likewise, in United States v. Quiroz, 16 we noted that “burglary was a capital

offense in seven states at the [F]ounding,” and “if ‘capital punishment was

permissible to respond to’ burglary at the [F]ounding, then so too

is . . . temporary disarmament” under 18 U.S.C. § 922(n). 17 To be sure,

Quiroz differentiated § 922(g)(1)’s “permanent disarmament,” 18 but the

logic from Diaz still applies. Our court’s decision in Diaz explains that the

rationale and justifications (“the ‘why’”) behind § 922(g)(1) are “relevantly

similar” to that of Founding-era capital punishment laws, as both serve “to

deter violence and lawlessness.” 19

Brown largely agrees with the analytical framework, but he argues that

burglary (and the other offenses that he has previously been convicted of)

were not capital crimes in some Founding-era jurisdictions. Brown’s

historical assertions may be correct, but we noted in Quiroz that “our

historical analysis does not require unanimity in every instance,” and, in any

event, “burglary was a capital offense in seven states at the [F]ounding.” 20

Further, § 922(g)(1) does not need to be identical to Founding-era penal

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13

Id. at 870-71.

14

116 F.4th 458 (5th Cir. 2024), petition for cert. filed, (U.S. Feb. 18, 2025) (No. 24-

6625).

15

Id. at 469.

16

125 F.4th 713 (5th Cir. 2025).

17

Id. at 724 (quoting Diaz, 116 F.4th at 469).

18

Id. (quoting Diaz, 116 F.4th at 469).

19

Diaz, 116 F.4th at 469.

20

Quiroz, 125 F.4th at 724-25.

5

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laws, only “‘relevantly similar’ to laws that our tradition is understood to

permit.” 21 Brown’s as-applied challenge fails.

B

Brown also argues that § 922(g)(1) is facially unconstitutional.

Assuming that Brown preserved this argument, it is foreclosed by Diaz. Our

court held in Diaz that a facial challenge to § 922(g)(1) failed because a facial

challenger “must establish that no set of circumstances exists under which

the statute would be valid,” and § 922(g)(1) “is constitutional as applied to

the facts” of Diaz. 22 Brown recognizes that Diaz forecloses his argument,

and he raises the argument only to preserve it for Supreme Court review.

C

Brown asserts that § 922(g)(1) is unconstitutionally vague, violates

the Commerce Clause, and violates equal protection under the Fifth

Amendment. These arguments are waived by the terms of his plea

agreement. In that agreement, Brown waived the “right to appeal the

conviction and sentence imposed in this case . . . on any ground whatsoever

with the exception that [he] retains the right to pursue a direct appeal of the

District Court’s order regarding [his] motion to dismiss pursuant to

[Bruen] . . . .”

“[A]n appeal waiver is effective” if (1) it is “knowing and voluntary”

and (2) “under the plain language of the plea agreement, the waiver applies

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21

United States v. Rahimi, 602 U.S. 680, 692 (2024) (quoting N.Y. State Rifle &

Pistol Ass’n v. Bruen, 597 U.S. 1, 29 (2022)).

22

Diaz, 116 F.4th at 471-72 (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)).

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to the circumstances at issue.” 23 Brown does not argue that his waiver was

unknowing or involuntary. Brown does argue that the district court erred by

accepting his guilty plea because § 922(g)(1) is unconstitutionally vague,

violates the Commerce Clause, and violates equal protection under the Fifth

Amendment—but he fails to explain how these purported constitutional

infirmities affect the validity of his appeal waiver or to cite any authority to

that effect. Moreover, “defendants can waive the right to challenge both

illegal and unconstitutional sentences.” 24 The plain language of Brown’s

waiver covers these challenges. Brown retained the “right to appeal . . . the

District Court’s order regarding [his] motion to dismiss . . . .” The district

court’s order did not address whether § 922(g)(1) is unconstitutionally

vague, violates the Commerce Clause, or violates equal protection under the

Fifth Amendment. Nor did Brown’s motion to dismiss. Brown admits in his

brief that he raises these issues for the first time on appeal.

We also note that the Commerce Clause and equal protection

arguments are foreclosed by our precedents. 25

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23

United States v. Lehew, 132 F.4th 381, 384 (5th Cir. 2025) (quoting United States

v. Graves, 908 F.3d 137, 139 (5th Cir. 2018)).

24

See United States v. Barnes, 953 F.3d 383, 388-89 (5th Cir. 2020) (“We have

recognized only two exceptions to the general rule that knowing and voluntary appellate

and collateral-review waivers are enforceable: first, ineffective assistance of counsel, and

second, a sentence exceeding the statutory maximum.” (citation omitted)).

25

See United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020) (rejecting

Commerce Clause challenge to § 922(g)(1) as foreclosed); United States v. Dickey, 102 F.3d

157, 163 (5th Cir. 1996) (“[T]he felon in possession of a firearm statute is constitutional

under the Commerce Clause.”); United States v. Darrington, 351 F.3d 632, 634-35 (5th Cir.

2003) (rejecting equal protection challenge to § 922(g)(1)); see also United States v. Howard,

No. 24-40033, 2024 WL 4449866, at *2 (5th Cir. Oct. 9, 2024) (per curiam) (discussing

Darrington).

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* * *

The judgment of the district court is AFFIRMED.

8