United States v. Wilson

Case: 23-30777 Document: 129-1 Page: 1 Date Filed: 07/17/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 23-30777 July 17, 2025

____________

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Damion Wilson,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:22-CR-92-1

______________________________

Before Graves, Engelhardt, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge: *

The principal question presented is whether police can Terry stop a

citizen based solely on the fact that he is carrying a firearm. The answer is

emphatically “no.” We nevertheless uphold the Terry stop in this case on

other grounds, reject the defendant’s other challenges to his conviction and

sentence, and affirm the district court’s judgment in full.

_____________________

*

Judge Graves joins this opinion with respect to Parts I, II–C, III–A, III–B,

and III–C.

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No. 23-30777

I

A

On March 16, 2022, federal agents stopped Damion Wilson pursuant

to Terry v. Ohio, 392 U.S. 1 (1968). As he was approaching Wilson, Deputy

U.S. Marshal Michael Atkins “noticed a bulge in [Wilson’s] waist area” that

seemed like “a hard object.” ROA.252 (alteration in original). Based on his

training, Deputy Atkins believed the object was a concealed firearm. Atkins

and other federal agents then ordered Wilson to stop and put his hands up.

Wilson complied. The agents asked Wilson if he was armed, and he replied

that he was. The agents ordered Wilson to drop the backpack he was wearing,

to turn around, and to place his hands behind his back. The agents hand-

cuffed him. While Wilson was being cuffed, Deputy Atkins asked him if he

had a concealed weapons permit. Wilson admitted that he did not. 1 The

agents took the gun—which was loaded with an extended magazine—from

Wilson.

Deputy Atkins told Wilson that he was not under arrest and that

agents wanted to talk to him about Wilson’s friend—a federal fugitive named

Malik Fernandez. Wilson denied having seen or spoken to Fernandez in six

years. However, on Wilson’s public Instagram account, officers found a

photo of Wilson and Fernandez together that had been posted approximately

four months earlier.

Local police then arrested Wilson for carrying a firearm without a

permit. Incident to that arrest, officers searched Wilson’s backpack and

found marijuana. Officers then obtained a search warrant for Wilson’s

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1

At the time, Louisiana law prohibited concealed carry without a permit under a

“shall issue” regime. Louisiana has since adopted a permitless concealed carry scheme. See

La. Rev. Stat. § 14:95(M).

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apartment and found more marijuana, drug paraphernalia, and approximately

$1,700.

B

In May 2022, a grand jury indicted Damion Wilson on six counts, only

four of which are relevant here: possession with intent to distribute marijuana

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 3); possession of a

handgun in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count 4); maintaining a drug-involved premises in violation

of 21 U.S.C. § 856(a)(1) (Count 5); and making a false statement to a federal

agent in violation of 18 U.S.C. § 1001 (Count 6).

Wilson moved to suppress all physical evidence and statements

arising from the March 2022 Terry stop and subsequent arrest. The district

court denied the motion. The court found that the agents had reasonable

suspicion to stop Wilson based on Deputy Atkins’ observation of a bulge that

appeared to be a concealed firearm. Pretermitting whether the officers’

search of Wilson’s backpack was lawful, the court held that the backpack’s

contents would have been inevitably discovered through an inventory search

at the jail after Wilson’s arrest for unlawfully carrying a firearm. The court

also held that the fruits of the stop and search were not suppressible.

At trial, the jury convicted Wilson on the four counts arising from the

March 2022 episode. The PSR’s advisory Guideline range was 21 to 27

months of imprisonment, plus the consecutive statutory minimum sentence

of five years on the firearm conviction (Count 4). See 18 U.S.C.

§ 924(c)(1)(A)(i). The district court adopted the PSR. On October 18, 2023,

the court sentenced Wilson to a within-Guidelines sentence of 27 months for

Counts 3, 5, and 6, and to a consecutive term of 60 months for Count 4, the

firearms charge—for a total of 87 months. Wilson timely appealed.

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II

We first address Wilson’s motion to suppress. We “review factual

findings for clear error and conclusions of law de novo.” United States v.

Smith, 952 F.3d 642, 646 (5th Cir. 2020). “We view the evidence in the light

most favorable to the party that prevailed below”—here, the Government.

Ibid. (quotation omitted). We will affirm the district court’s judgment if there

is any reasonable view of the evidence supporting its decision. Ibid. It is the

Government’s burden to prove the validity of a warrantless search by a

preponderance of the evidence. United States v. Conlan, 786 F.3d 380, 387

(5th Cir. 2015). Where, as here, “a district court’s denial of a suppression

motion is based on live oral testimony, the clearly erroneous standard is

particularly strong because the judge had the opportunity to observe the

demeanor of the witnesses.” United States v. Bass, 996 F.3d 729, 736–37 (5th

Cir. 2021) (quotation omitted).

We (A) begin by explaining the history and tradition of searches and

seizures prohibited by our Fourth Amendment. Then we (B) hold that the

district court’s justification for the Terry stop cannot stand. The mere fact

that a citizen carries a firearm does not create reasonable suspicion that he

committed a crime. Finally, we (C) hold that ample other evidence never-

theless justified the Terry stop in this case.

A

If any principle of criminal procedure was clear at the Founding, it was

that officers cannot seize or search without individualized suspicion that a

particular person committed a particular crime.

Take for example the infamous writs of assistance. Such writs are of

ancient origin. See Josiah Quincy, Jr., Reports of Cases

Argued and Adjudged in the Superior Court of

Judicature of the Province of Massachusetts Bay, 1761–

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1772 (1865) (Appendix I, Writs of Assistance), reprinted in 5 The

Founders’ Constitution 222, 222 (Philip B. Kurland & Ralph Lerner

eds., 1987). 2 While the English Crown used writs of assistance to do many

different things throughout English history, see ibid., their most relevant pre-

Founding use is illustrated by Charles II’s Customs Act of 1662. It provided:

And it shall be lawful to or for any Person or Persons, autho-

rized by Writ of Assistance under the Seal of his Majesty’s

Court of Exchequer, to take a Constable, Headborough

[mayor] or other publick Officer inhabiting near unto the Place,

and in the Day-time to enter, and go into any House, Shop,

Cellar, Warehouse or Room, or other Place, and in Case of

Resistance, to break open Doors, Chests, Trunks and other

Package[s], there to seize, and from thence to bring, any Kind

of Goods or Merchandize whatsoever, prohibited and

uncustomed . . . .

An Act for Preventing Frauds, and Regulating Abuses in His Majesty’s

Customs (1662), 13 & 14 Car. 2 c. 11, § 5, in 3 The Statutes at Large

237 (Owen Ruffhead ed., London, 1770). Such writs thus authorized revenue

officers to search for and seize uncustomed goods—wherever they might be

found and by whomever they might be held. See Quincy, supra, at 222.

Patriots in colonial America detested writs of assistance. In the

immortal words of James Otis, such writs were “the worst instrument of

arbitrary power, the most destructive of English liberty and the fundamental

principles of law, that ever was found in an English law-book.” John Adams’s

Reconstruction of Otis’s Speech in The Writs of Assistance Case, reprinted in

Collected Political Writings of James Otis 11, 11 (Richard

_____________________

2

This first appendix to Quincy’s Reports, which was written by Supreme Court

Justice Horace Gray, Jr., provides an “elaborate history of the writs of assistance.” Boyd v.

United States, 116 U.S. 616, 625 n.4 (1886).

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Samuelson ed., 2015). Why? Because they specified no particular person, writs

of assistance jeopardized the liberties of everyone—and “place[d] the liberty

of every man in the hands of every petty officer.” Id. at 12. As Otis put it in

1761:

Every one with this writ may be a tyrant; if this commission be

legal, a tyrant in a legal manner also may control, imprison, or

murder any one within the realm. In the next place, it is per-

petual; there is no return. A man is accountable to no person

for his doings. Every man may reign secure in his petty tyranny,

and spread terror and desolation around him.

Ibid.

Writs of assistance were closely related to general warrants. See

Carpenter v. United States, 585 U.S. 296, 349 n.6 (2018) (Thomas, J.,

dissenting) (citing Stanford v. Texas, 379 U.S. 476, 481 (1965)). “The most

common meaning of ‘general warrant’ was a warrant that lacked specificity

as to whom to arrest or where to search; for example, a warrant directing

arrests of ‘suspected persons’ or a search of ‘suspicious places.’” Thomas

Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev.

547, 558 n.12 (1999); see also ibid. (discussing other definitions). General

warrants originated during England’s Tudor Dynasty. See William J.

Cuddihy, The Fourth Amendment: Origins and Original

Meaning, 602–1791, at 44 (2009); see also United States v. Beaudion, 979

F.3d 1092, 1094–96 (5th Cir. 2020) (describing the origin and evolution of

general warrants).

To understand how general warrants worked, consider The North

Briton cases. In April 1763, John Wilkes published one of the most infamous

pieces of political dissent in Anglo-American history: The North Briton No.

45. In that newspaper, Wilkes attacked the Treaty of Paris, which ended the

Seven Years War. He contended that the Treaty had “drawn the contempt

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of mankind on our wretched negotiators.” John Wilkes, The North Briton No.

XLV (Apr. 23, 1763), reprinted in The North Briton from No. I to

No. XLVI Inclusive 302, 303 (London, 1769). And he criticized certain

“unjustifiable, public declarations” that King George III had made about the

Treaty in his speech to Parliament. Ibid. For such then-scandalous criticisms

of the Crown, Lord Halifax issued a warrant to arrest Wilkes and put him in

the Tower of London. But as most relevant here, Halifax also issued a general

warrant to arrest “the authors, printers and publishers” of The North Briton

No. 45—without identifying them. See Money v. Leach, 97 Eng. Rep. 1075,

1078 (K.B. 1765) (reproducing the warrant).

Pursuant to that general warrant, the King’s officers “entered into”

the “dwellinghouse” of Dryden Leach and arrested him on suspicion of sedi-

tious libel. Id. at 1076. As it turned out, Leach had not, in fact, published The

North Briton No. 45. See ibid. So he brought a trespass action against the

arresting officers for “breaking and entering [his] house, and imprisoning

him, without any lawful or probable cause.” Id. at 1075. And in one of the

most celebrated decisions of the King’s Bench, Lord Chief Justice Mansfield

declared the general warrant “void.” Id. at 1088. Wilkes won, too. See R. v.

Wilkes, 95 Eng. Rep. 737, 742 (K.B. 1763) (“Mr. Wilkes must be discharged

from his imprisonment: whereupon there was a loud huzza in Westminster-

Hall. He was discharged accordingly.”); Wilkes v. Wood, 98 Eng. Rep. 489,

499 (C.P. 1763). As did several of Wilkes’s associates. See, e.g., Huckle v.

Money, 95 Eng. Rep. 768, 769 (C.P. 1763) (“To enter a man’s house by virtue

of a nameless warrant, in order to procure evidence, is worse than the Spanish

Inquisition . . . .”). 3

_____________________

3

The North Briton cases also paved the way for Entick v. Carrington, 95 Eng. Rep.

807 (C.P. 1765). In that case, Lord Halifax had issued a warrant “to make strict and diligent

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All of this had a profound impact on America at the Founding. John

Adams attributed the American Revolution to Otis’s 1761 indictment of writs

of assistance: “Then and there was the first scene of the first act of opposition

to the arbitrary claims of Great Britain. Then and there the child Indepen-

dence was born.” 10 Charles Francis Adams, The Works of

John Adams, Second President of the United States 248

(Boston, Little, Brown & Co. 1856). The Declaration of Independence lists

writs of assistance as one of King George’s worst abuses: “He has . . . sent

hither swarms of Officers to harass our people, and eat out their substance”

using writs of assistance and general warrants. The Declaration of

Independence para. 12 (1776). And cases like Leach, Wilkes, and Entick

form the backbone of our Fourth Amendment. See, e.g., Boyd v. United States,

116 U.S. 616, 625–27 (1886) (so holding); Beaudion, 979 F.3d at 1094–96

(same); Carpenter, 585 U.S. at 391–92 (Gorsuch, J., dissenting) (so

recognizing).

*

Whether by writ of assistance, general warrant, or warrantless

instinct, an officer cannot search or seize a person carrying papers merely

because such papers could contain seditious libel. Rather, the officer must

_____________________

search for John Entick, the author, or one concerned in the writing of several weekly very

seditious papers, [e]ntitled The Monitor, or British Freeholder.” Id. at 810. That was obvi-

ously not a general warrant. See T.T. Arvind & Christian R. Burset, A New Report of Entick

v. Carrington (1765), 110 Ky. L.J. 265, 281 (2021–22) (“[L]ack of specificity wasn’t the

problem with the warrant in Entick, which actually named its target. The problem, rather,

was that the warrant unnecessarily authorized the search of private papers.” (footnotes

omitted)). Lord Chief Justice Camden famously held the warrant used against Entick illegal

and void because “[p]rivate Papers are the only way of concealing a man’s most valuable

Secrets either in his Profession or any other Way, & are his dearest property. Where private

Papers are carried away, the Secrets contained in them may be discovered.” Id. at 287

(quoting Edward Moore’s report of Entick).

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have reason to believe that a particular person is carrying particular papers

containing particular evidence of criminality.

So too with firearms. The right to keep and bear arms in this country

“may be considered as the true palladium of liberty.” 1 St. George

Tucker, Blackstone’s Commentaries app’x 300 (Philadelphia,

Birch & Small 1803). True, a particular person could keep or bear a particular

firearm in an unlawful way. But an officer cannot search or seize a person

simply because he is keeping or bearing a firearm—any more than an officer

can search or seize a person simply because he is keeping or bearing a piece

of paper.

B

The district court’s approach, by contrast, is inconsistent with the

Constitution’s history and tradition. It reasoned that carrying a firearm is

“presumptively illegal” in Louisiana. Thus, officers can presume that every

firearm is being carried illegally—and Terry stop every gun owner without

any suspicion that any particular gun owner is doing anything wrong. We

(1) explain this presumption of illegality. Then we (2) reject it as a basis for

Terry stops.

1

At the time of Wilson’s arrest, Louisiana law prohibited “[t]he inten-

tional concealment of any firearm, or other instrumentality customarily used

or intended for probable use as a dangerous weapon, on one’s person.” La.

Rev. Stat. § 14:95(A)(1)(a). 4 But the prohibition did “not apply to a

person with a valid concealed handgun permit.” Id. § 14:95(A)(1)(b). Permits

for concealed handguns “issue[d] . . . to any Louisiana resident” who met

_____________________

4

Louisiana has since adopted permitless concealed carry. See supra note 1.

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the statutory requirements. Id. § 40:1379.3(A)(1). And a “permittee armed

with a handgun” must “notify any police officer who approaches the

individual in an official manner or with an identified official purpose that the

individual has a weapon on his person, submit to a pat down, and allow the

officer to temporarily disarm him.” Id. § 40:1379.3(I)(2).

The Supreme Court of Louisiana had described this statutory scheme

as “not a complete ban on the carrying of concealed weapons,” but instead

merely a prohibition on “carrying a concealed firearm (or other dangerous

weapon) in public without a permit.” In re J.M., 144 So. 3d 853, 865–66 (La.

2014). The permit requirements, in turn, were minimal: they included age,

mental fitness, immigration status, and criminal history. See La. Rev.

Stat. § 40:1379.3(C). But if a person was charged with unlawfully carrying

a firearm under Louisiana law, it was the defendant’s burden to prove that he

had a permit. State v. Moore, 390 So. 3d 413, 415 (La. 2024) (citing State v.

Augillard, 371 So. 2d 798, 800 (La. 1979)).

The district court determined that this statutory scheme made

carrying a firearm presumptively unlawful. And in accordance with certain

out-of-circuit precedents, it held that the presumption justified Terry

stopping anyone carrying a firearm anywhere in the State of Louisiana. 5

_____________________

5

See, e.g., United States v. Pope, 910 F.3d 413, 415–16 (8th Cir. 2018) (reasoning

that carrying a concealed weapon establishes reasonable suspicion on the grounds that Iowa

law makes concealed carry presumptively unlawful without a permit, which “is merely an

affirmative defense”); Foster v. City of Indio, 908 F.3d 1204, 1215 (9th Cir. 2018) (per

curiam) (reasoning that because California “law makes it generally unlawful to carry a

concealed weapon without a permit, a tip that a person is carrying a concealed firearm raises

a reasonable suspicion of potential criminal activity, even if the tip does not state that the

person is carrying the firearm illegally or is about to commit a crime”); United States v.

Lewis, 674 F.3d 1298, 1304 (11th Cir. 2012) (reasoning that the fact of a concealed handgun

established reasonable suspicion where Florida law criminalized concealed carry without a

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2

We must reject the district court’s approach. That is for six reasons.

First, the district court’s per se presumption of illegality is inconsistent

with our Constitution’s history and tradition. When America declared its

independence from England, it also declared its independence from writs of

assistance and general warrants. That means officers are no longer allowed to

presume that people walking down the street are violating the law. And they

certainly cannot presume that gun owners as a class are violating the law. To

hold otherwise is to derogate both our Fourth Amendment and our Second.

Second, the district court’s per se presumption of illegality is incon-

sistent with the Terry doctrine. There is no “firearm exception” in that

doctrine. Florida v. J.L., 529 U.S. 266, 272 (2000). Rather, the entirety of the

Terry doctrine depends on reasonable, individualized suspicion. That is why

the Supreme Court instructs us to consider “the totality of the circum-

stances” to determine whether an officer could infer that a particular suspect

acted or was about to act unlawfully. Navarette v. California, 572 U.S. 393,

397 (2014) (quotation omitted). This inference “turn[s] on the assessment of

probabilities in particular factual contexts.” Florida v. Harris, 568 U.S. 237,

244 (2013) (quotation omitted). And these assessments can be based on

“certain common sense conclusions about human behavior” drawn by

“practical people.” United States v. Cortez, 449 U.S. 411, 418 (1981); accord

Brinegar v. United States, 338 U.S. 160, 175 (1949). All these precedents focus

_____________________

permit, which was an affirmative defense); United States v. Pontoo, 666 F.3d 20, 31–32 (1st

Cir. 2011) (finding probable cause based on possession of a concealed handgun because

Maine prohibits concealed carry unless someone jumps through “several procedural

hoops”); United States v. Gatlin, 613 F.3d 374, 378–79 (3rd Cir. 2010) (inferring reasonable

suspicion justifying a Terry stop from mere firearm possession because Delaware presumes

concealed firearms are illegal).

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on a particular person and his particular circumstances. None allows officers

to make class-wide, blanket determinations that all people of some disfavored

type are criminals. As then-Judge Barrett put it: “[A] mere possibility of

unlawful use of a gun is not sufficient to establish reasonable suspicion.”

United States v. Watson, 900 F.3d 892, 896 (7th Cir. 2018) (quotation

omitted).

Third, the district court’s per se presumption of illegality is incon-

sistent with Fourth Amendment doctrine more generally. The Supreme

Court has blessed very limited kinds of suspicionless searches or seizures—

for example, roadblocks to combat drunk driving, see Michigan Dep’t of State

Police v. Sitz, 496 U.S. 444 (1990); roadblocks to combat illegal immigration,

see United States v. Martinez-Fuerte, 428 U.S. 543 (1976); and random drug

testing at schools, see, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646

(1995). In each of these circumstances, the Court emphasized that such pro-

grams are lawful because they advance programmatic needs of public safety

in places where citizens have lower privacy interests (like highways and

public schools). The Court emphasized, however, that such programs cannot

be used to combat crime more generally. See City of Indianapolis v. Edmond,

531 U.S. 32, 37 (2000) (suspicionless roadblocks cannot be used to advance

“normal need for law enforcement” like interdicting drugs). And in any

event, there is a world of difference between a programmatic, suspicionless

search for everyone and a targeted, suspicionless search for gun owners.

Fourth, the district court’s per se presumption of illegality conflates the

substance of state law with its procedure. It is obviously true that officers

must consult state law to determine what conduct is illegal—and hence what

conduct could justify a Terry stop or a warrant. If State A makes it illegal to

drive with a BAC over 0.08% and State B sets the limit at 0.05%, an officer

must know his State’s rule to determine whether and how to search or seize

a particular driver. But that is a substantive distinction of state law. Whether

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state law allocates the burden to prove a particular element to prosecutors or

the defense, by contrast, is purely a question of state trial procedure. See

Adams v. Williams, 407 U.S. 143, 149 (1972) (“Probable cause does not

require the same type of specific evidence of each element of the offense as

would be needed to support a conviction.”); see also Draper v. United States,

358 U.S. 307, 311–12 (1959). And we are aware of no basis in history,

tradition, or Supreme Court precedent for saying that state trial procedures

allow officers to presume that entire classes of citizens are criminals. To the

contrary, “Fourth Amendment protections are not so variable and cannot be

made to turn upon such trivialities” of state trial procedures. Virginia v.

Moore, 553 U.S. 164, 172 (2008) (quotation omitted); cf. Atwater v. City of

Lago Vista, 532 U.S. 318, 354 (2001) (explaining Fourth Amendment

reasonableness does not turn on State labels).

Fifth, the district court’s per se presumption of illegality is doctrinally

indeterminate. While some courts have inferred a presumption of illegality

where the defendant’s permit to carry is an affirmative defense at trial, see

supra note 55, other courts have said no presumption applies where the State

“shall issue” permits to any qualified applicant, see, e.g., United States v.

Brown, 925 F.3d 1150, 1154 (9th Cir. 2019). The rationale is that where the

State has no discretion to deny a permit to a qualified applicant, as was true

in Louisiana, officers cannot presume that any particular armed person is

unpermitted. See ibid. Louisiana law thus had two features—the affirmative

defense rule and the shall-issue requirement—that pointed in opposite

directions for presuming illegality. This further illustrates that the presump-

tion should be rejected.

Sixth, the district court’s per se presumption of illegality would have

untenable consequences in other areas. For example, driving a car without a

license is unlawful in every State. See, e.g., La. Rev. Stat.

§ 32:402(B)(1)(a)(i). Drivers are generally obligated to have their licenses in

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their possession and display them to officers. See, e.g., id. § 32:411.1(A)(1).

And while Louisiana law is unclear on whether licensure is an affirmative

defense, some States make it clear that defendants in unlicensed-driving

cases hold the burden of proof. See, e.g., Tex. Transp. Code

§ 521.025(d). Undoubtedly, obtaining a driver’s license is more difficult than

acquiring a concealed carry permit in a shall-issue State. Based solely on the

observation that someone is driving a car, does an officer have reasonable

suspicion that the driver is unlicensed?

Obviously, no: “[S]topping an automobile and detaining the driver in

order to check his driver’s license and the registration of the automobile are

unreasonable under the Fourth Amendment” without “articulable and

reasonable suspicion that a motorist is unlicensed or that an automobile is not

registered.” Delaware v. Prouse, 440 U.S. 648, 663 (1979). This was true even

though driving, like carrying a firearm, is “subject to state regulation.” Id. at

662. Thus, “[w]ere the individual subject to unfettered governmental

intrusion every time he entered an automobile, the security guaranteed by the

Fourth Amendment would be seriously circumscribed.” Id. at 662–63. Put

differently, officers cannot assume that citizens engaging in an activity

subject to licensing are unlicensed. Without more facts, it is “[in]sufficiently

probable that the observed conduct suggests unlawful activity.” Watson, 900

F.3d at 896 (emphasis added) (quotation omitted). That holds true regardless

of whether a driver’s license is hard or easy to get, whether possession of a

license is an affirmative defense (as it is in Texas and as it might not be in

Louisiana), or whether driver’s licenses must be produced to officers upon

request. So too with guns: “As a matter of law and common sense, a police

officer observing an unknown individual can no more identify whether that

individual has a license in his wallet than discern whether he is a criminal.”

Commonwealth v. Hicks, 652 Pa. 353, 387 (2019); see also United States v.

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Ubiles, 224 F.3d 213, 218 (3d Cir. 2000) (posing the analogy that possession

of a wallet does not suggest possession of counterfeit bills).

If anything, the Constitution’s prohibition on presuming illegality

should be stronger for gun owners than for car drivers. Unlike driving on

public highways, which is a State-created and State-regulated privilege, “the

Second and Fourteenth Amendments protect an individual’s right to carry a

handgun for self-defense outside the home.” N.Y. State Rifle & Pistol Ass’n,

Inc. v. Bruen, 597 U.S. 1, 10 (2022). So regardless of how States’ permitting

schemes are set up, keeping and bearing arms is presumptively lawful

nationwide. We therefore refuse to “single out the Second Amendment for

disfavor,” Wilson v. Hawaii, 145 S. Ct. 18, 20 (2024) (Thomas, J., respecting

the denial of certiorari), and we reject the district court’s categorical rule that

presumes Louisiana gun owners are committing crimes.

C

Despite the district court’s erroneous application of a categorical rule,

we hold that the officers had reasonable suspicion to stop Wilson based on

the facts in the record. 6

To perform a Terry stop, officers must have “reasonable suspicion

that criminal activity may be afoot.” Navarette, 572 U.S. at 401 (quotation

omitted). Reasonable suspicion requires only “some minimal level of objec-

tive justification for making the stop.” United States v. Sokolow, 490 U.S. 1, 7

(1989) (quotation omitted). “Although a mere hunch does not create

_____________________

6

Our esteemed colleague agrees that the record supports the Terry stop in this case

but disagrees that we should correct the district court’s erroneous rule that possession of a

firearm is presumptively unlawful. Post, at 29 (Graves, J., concurring in relevant part).

That is puzzling because the premise of our harmless-error holding is, well, the district

court’s error. We respectfully disagree that it is “superfluous and unhelpful” to explain

that error. Id. at 30.

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reasonable suspicion, the level of suspicion the standard requires is consid-

erably less than proof of wrongdoing by a preponderance of the evidence, and

obviously less than is necessary for probable cause.” Kansas v. Glover, 589

U.S. 376, 380 (2020) (quotation omitted). This “less demanding standard”

allows “officers to make commonsense judgments and inferences about

human behavior.” Id. at 380–81 (quotation omitted).

When reviewing reasonable suspicion, we consider “the totality of the

circumstances—the whole picture.” Navarette, 572 U.S. at 397 (quotation

omitted). The totality of the circumstances test “allows officers to draw on

their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that might

well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (quotation omitted). “Relevant facts and considerations may include

a description of a suspect, a suspect’s location and proximity to known or

reported criminal activity, the timeliness of information or the stop, a sus-

pect’s behavior, and the officer’s experience.” United States v. Alvarez, 40

F.4th 339, 346 (5th Cir. 2022). “Facts that appear innocent when viewed in

isolation can constitute reasonable suspicion when viewed collectively.” Ibid.

In this case, officers had ample reasonable suspicion to stop Wilson—

separate and apart from the fact that he was a gun owner.

Officers did not approach or stop Wilson only because they suspected

him of carrying a gun. They approached and stopped him because they

wanted to interview him about his friend Fernandez, who was a federal

fugitive involved in a marijuana-trafficking-related shootout. So Wilson’s

“proximity to known or reported criminal activity” was a factor supporting

reasonable suspicion. Ibid. And it is well established that a “suspect’s

companionship with or propinquity to an individual independently suspected

of criminal activity is a factor to be considered in assessing the reasonableness

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of a seizure.” United States v. Thomas, 997 F.3d 603, 611 (5th Cir. 2021)

(quoting United States v. Silva, 957 F.2d 157, 161 (5th Cir. 1992)); see also

United States v. Michelletti, 13 F.3d 838, 842 (5th Cir. 1994) (en banc)

(incorporating the suspicious activities of a defendant’s nearby associates

into the reasonable-suspicion analysis).

Many facts known to the officers connected Wilson to Fernandez at

the moment of the Terry stop: Fernandez’s last known address was a home

that belonged to a member of Wilson’s family. Three people living there told

Deputy Atkins that Fernandez’s last known location was with Wilson and

that if Deputy Atkins wanted to find Fernandez, he needed to find Wilson

because “they’re always known to be together” and the two were “like

brothers.” ROA.425. Once officers arrived at Wilson’s apartment complex,

Deputy Atkins showed pictures of Fernandez to neighbors and complex

employees. And, critically, they told Deputy Atkins that they had seen

Fernandez in and around Wilson’s apartment often, including within the last

week.

All of that alone would give officers reasonable suspicion to Terry stop

Wilson for, at a minimum, his potential involvement in drug trafficking or

harboring a federal fugitive. Moreover, when officers approached Wilson,

they were aware of his criminal history. Deputy Atkins and the other officers

knew that Wilson had recently been charged with (1) possession with the

intent to distribute drugs and (2) possession of a firearm in furtherance of a

drug trafficking crime.

Thus, this is not a case of officers stopping someone simply because

they presumed he was a criminal based solely on the fact he was carrying a

gun in Louisiana. The officers had ample grounds to think criminal activity

was afoot—even before Deputy Atkins saw the bulge in Wilson’s waistband.

Under such circumstances, precedent plainly allowed the officers to conduct

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a Terry stop and a protective search. See Pennsylvania v. Mimms, 434 U.S. 106,

112 (1977) (so long as officer has reasonable suspicion to conduct a stop before

seeing a gun, his observation of a “bulge” permits the conclusion that the

suspect is “armed”); see also United States v. Cooper, 43 F.3d 140, 147 n.9 (5th

Cir. 1995) (“A large bulge located in such an unusual place on a suspect may

be a factor warranting reasonable suspicion.”). We therefore affirm the

district court’s rejection of Wilson’s Fourth Amendment challenge.

III

We turn now to Wilson’s four remaining challenges. All fail under

plain-error review.

For us to reverse the district court under plain-error review, the

defendant must show (1) an error or defect that is (2) plain or obvious and

that (3) affected his substantial rights, i.e., “affected the outcome of the

district court’s proceedings.” Puckett v. United States, 556 U.S. 129, 135

(2009). If a question of law is subject to reasonable dispute, the alleged error

is not plain or obvious. Ibid. If those three conditions are met, we have “the

discretion to remedy the error—discretion which ought to be exercised only

if the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Ibid. (quotation omitted).

A

Wilson first asserts that the evidence was insufficient to support his

conviction for making a false statement to a federal agent. We review for plain

error, as the parties concede, because Wilson did not move in the district

court for a judgment of acquittal based on insufficient evidence. See United

States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).

Plain-error review itself presents a high bar. “But where, as here, the

unpreserved claim is a sufficiency-of-the-evidence challenge, the standard of

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review is doubly difficult.” United States v. Yusuf, 57 F.4th 440, 445 (5th

Cir.), cert. denied, 143 S. Ct. 1793 (2023). This court will reverse only when

the appellant shows that “the evidence was so completely, obviously, and

unbelievably inadequate that allowing the verdict to stand would be a

‘shocking’ and ‘manifest miscarriage of justice.’” Ibid. (quoting United

States v. Smith, 878 F.3d 498, 503 (5th Cir. 2017)). “These combined

standards are tantamount to the eye of a virtually impassable needle.” Ibid.

The jury convicted Wilson of lying when he told officers that he had

not seen Fernandez in six years. The Government’s evidence consisted

mainly of (1) Deputy Atkins’ testimony about the Instagram photos of Wilson

and Fernandez together that were posted on November 27, 2021; (2) the

photos themselves; and (3) the parties’ stipulation that a Mississippi sheriff’s

deputy tried but failed to pull over a car driven by Wilson with Fernandez

sitting shotgun just five days after Wilson’s arrest. Wilson contends that the

date of Instagram posting does not imply that the photos were taken within

the last six years. And as to the Mississippi incident, Wilson argues that

events taking place after his statement to Deputy Atkins are irrelevant.

We disagree. A reasonable jury could conclude that someone who

claimed not to have seen or spoken to someone in six years would be unlikely

to (1) post photos on Instagram showing them together less than four months

before and (2) be found driving together five days later. Furthermore, the jury

saw photos of Wilson from his July 21, 2021 arrest and a high school

identification card from 2020. It could have compared those photos to the

ones on Instagram and concluded they had not been taken six years earlier,

when Wilson would have been fifteen or sixteen. And the jury could have

reasonably considered additional evidence tending to show that Wilson was

lying: Fernandez’s last known residence was Wilson’s family home, tenants

at that address told officers that Wilson and Fernandez were like brothers,

and witnesses at Wilson’s apartment complex told officers that they had

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often seen the two men together in the complex. This evidence was not

“completely, obviously, and unbelievably inadequate.” Ibid.

B

Wilson next challenges the district court’s admission of Deputy

Atkins’ lay opinion testimony that identified him in a photograph with

Fernandez. We hold that (1) plain-error review applies to this claim and

(2) Wilson’s challenge fails under any standard.

1

The parties disagree about the standard of review. Wilson argues that

our review of the district court’s evidentiary ruling should be for abuse of

discretion because he “objected repeatedly to the admission of exhibits and

testimony” from Deputy Atkins, preserving the error. Blue Br. at 43. The

Government responds that our review should be for plain error because

Wilson’s objections at trial were not sufficiently specific to preserve the error

for appeal.

We agree with the Government. Evidentiary errors must be preserved

by stating the specific ground of objection. See Fed. R. Evid. 103(a)(1)(B).

“Because the primary purpose of Fed. R. Evid. 103(a)(1) is to assist the

judge in avoiding error and correctly ruling on evidentiary objections, the

corollary is that to preserve the objection, the ‘specific ground’ for the stated

objection must be the correct one.” United States v. Seale, 600 F.3d 473, 486

(5th Cir. 2010). On appeal, Wilson argues that Deputy Atkins’ testimony

violated Rule 701’s requirements for lay testimony. But Wilson’s objections

at trial, while numerous, were not specific to Rule 701 or lay testimony.

Wilson objected under the headings of “best evidence” (Rules 1002–1004),

“hearsay” (Rules 801 et seq.), “relevance” (Rule 401), and “no way to

properly confront [] or cross-examine” Deputy Atkins. ROA.668. None of

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that put the district court on notice of the objection Wilson now urges on

appeal.

2

Regardless, the admission of Deputy Atkins’s lay opinion testimony

that the Instagram photographs depicted Wilson and Fernandez was neither

plain error nor abuse of discretion: It was not an error at all.

Federal Rule of Evidence 701 provides that a lay witness may testify

about opinions that are “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to deter-

mining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.

“A lay witness may give an opinion that is based upon first-hand knowledge

or observation.” United States v. Masha, 990 F.3d 436, 445 (5th Cir. 2021).

“Lay opinion testimony is admissible if it requires no great leap of logic and

draws straightforward conclusions from observations informed by the

witness’s own experience.” Ibid. (cleaned up).

There is nothing unusual about admitting lay opinion testimony

during which the witness identifies someone in a photograph or video. “Lay

witnesses who know a person . . . may testify that he is the one shown in the

pictures and videotape made by surveillance cameras at banks and elsewhere.

Such testimony is often useful in identifying robbers, burglars or assailants.”

United States v. Ebron, 683 F.3d 105, 137 (5th Cir. 2012) (quoting

Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 7.4 (3d ed. 2003)). Indeed, the “prototypical example of the

type of evidence contemplated by the adoption of Rule 701 relates to the

appearance of persons or things, identity, the manner of conduct, competency

of a person, degrees of light or darkness, sound, size, weight, distance, and an

endless number of items that cannot be described factually in words apart

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from inferences.” Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190,

1196 (3d Cir. 1995) (Becker, J., joined by Alito, J.) (emphasis added).

Deputy Atkins’ identification of Fernandez and Wilson fits

comfortably with these authorities. A specialist in apprehending fugitives,

Deputy Atkins had become familiar with Wilson’s and Fernandez’s

appearances while investigating them. And Deputy Atkins’ testimony was

particularly helpful to the jury because Wilson and Fernandez were wearing

hats and sunglasses in the Instagram photos. See Masha, 990 F.3d at 446.

Accordingly, we decline to vacate Wilson’s conviction on this ground.

C

Third, Wilson objects to certain statements made by the prosecutor at

trial. The parties agree that we review this claim for plain error because

Wilson did not object at trial to the prosecution’s remarks that he now

challenges. See United States v. Johnson, 85 F.4th 316, 319 (5th Cir. 2023)

(“We review the unobjected-to remark for reversible plain error.”). We

(1) describe the prosecutor’s statements and then (2) reject Wilson’s

challenges to them.

1

Wilson groups the allegedly improper remarks into a few categories.

The first are remarks that “not only bolstered [Deputy] Atkins’s

identification testimony but also conveyed to the jury that the entire

investigatory team had made the same identification.” Blue Br. at 55. Those

remarks were:

• “Clearly, the U.S. marshals know when they are looking for a

fugitive, who they are looking for. It’s their job.” ROA.737.

• “They clearly know what Malik Fernandez looks like. He’s the

person they are looking for. They can see him in a picture. They

can identify him.” Ibid.

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The next group of statements concerned the nature of the relationship

between Wilson and Fernandez. Wilson argues that comments about his and

Fernandez’s apprehension in Mississippi after Wilson’s arrest constitute

improper “personal opinions” about whether Wilson was lying when he told

Atkins he had not seen Fernandez in six years. Blue Br. at 55–56. Those

statements were:

• “There is no way in the world that’s a coincidence. It’s not

possible. It’s not even physically possible for that to be true.”

ROA.737–38.

• “We’re not buying that.” ROA.722 (referring to argument

that pictures could have been taken more than six years ago).

• References to Fernandez being Wilson’s “buddy” or “fugitive

buddy.” ROA.716, 721.

Wilson argues the “buddy” comments “improperly suggest[ed] to the jury

that the government had additional information that they were friends, even

though no such facts were in evidence.” Blue Br. at 56.

Next, Wilson argues that the prosecutors inflamed the jury in two

ways. First, he points to multiple times that the prosecution referred to him

as an “armed drug dealer.” ROA.593 (opening statement); ROA.716–22,

732–39 (closing argument). Second, he points to two similar statements about

“constitutional obligation” in the prosecution’s closing arguments, one at

the beginning and one at the end:

• “Well, we are here because we have a constitutional duty and

obligation to uphold. You see, the government, once we

charged Damion Wilson, we must then prove beyond a

reasonable doubt that Damion Wilson is guilty of all six

charges, and in this case, that is exactly what we did.”

ROA.716.

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• “So, ladies and gentlemen, the evidence is what it is. It speaks

for itself. And so, we are asking you today to also uphold your

constitutional obligation and help us take a drug dealer, an

armed drug dealer off of the street.” ROA.722.

2

It is improper for prosecutors to vouch for the credibility of witnesses

or express personal opinions concerning the guilt of the accused. See United

States v. Young, 470 U.S. 1, 18 (1985). In particular, it is improper for prose-

cutors to make remarks during closing arguments that bolster federal agents’

credibility with extra-record evidence or attack the character of the

defendant. See United States v. Bowen, 818 F.3d 179, 191 (5th Cir. 2016). And

prosecutors may not “make an appeal to passion or prejudice calculated to

inflame the jury.” United States v. Raney, 633 F.3d 385, 395 (5th Cir. 2011)

(quotation omitted). Prosecutors can, of course, comment on the evidence in

the case and inferences the jury should draw from it. See United States v.

McCann, 613 F.3d 486, 495 (5th Cir. 2010). “[A] prosecutor may speak to a

law enforcement witness’s credibility at closing if the statement is supported

by prior evidence.” United States v. Johnson, 943 F.3d 214, 224 (5th Cir.

2019). And prosecutors are allowed “to use expressive language and a bit of

oratory and hyperbole” in their closing arguments. United States v. Garcia,

887 F.3d 205, 210 (5th Cir. 2018) (per curiam) (quotation omitted).

“[U]nflattering characterizations of a defendant will not provoke a reversal

when such descriptions are supported by the evidence.” United States v.

Delgado, 672 F.3d 320, 336 (5th Cir. 2012) (en banc) (quotation omitted); see

also United States v. Windom, 510 F.2d 989, 994 (5th Cir. 1975) (finding no

error in a prosecutor’s reference to a defendant as a “con artist”).

When evaluating allegedly improper remarks made by the

prosecution, the “determinative question is whether the remarks cast serious

doubt on the correctness of the jury’s verdict.” Johnson, 85 F.4th at 319

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(quotation omitted). To answer that question, “we consider the magnitude

of the prejudicial effect of the prosecutor’s remarks, the efficacy of any

cautionary instruction by the judge, and the strength of the evidence

supporting the conviction.” United States v. Thompson, 482 F.3d 781, 785 (5th

Cir. 2007) (cleaned up). “We do not lightly make the decision to overturn a

criminal conviction on the basis of a prosecutor’s remarks alone.” United

States v. Bennett, 874 F.3d 236, 247 (5th Cir. 2017) (quotation omitted). And

we assume “that a jury can and will follow an instruction that attorneys’

statements are not evidence, unless there is an overwhelming probability that

the jury will be unable to follow the instruction and there is a strong

probability that the effect is devastating.” Ibid. (quotation omitted).

None of Wilson’s contentions warrants vacatur of his conviction. The

prosecutor did not discuss evidence outside the record or stray beyond

permissible rhetorical flourish. True, the prosecutor referred to Wilson as an

“armed drug dealer” and to Fernandez as his “fugitive buddy”—but both

statements were supported by record evidence.

The only close question involves the prosecutor’s admonition that the

jury should “uphold [its] constitutional obligation and help us take a drug

dealer, an armed drug dealer off of the street.” ROA.722. But that statement

did nothing “to undermine the fundamental fairness of the trial and

contribute to a miscarriage of justice.” Young, 470 U.S. at 16. In Young, for

example, the prosecution exhorted the jury to “do its job” and convict the

defendant. Id. at 18. Defense counsel then mounted a “broadside attack” on

the prosecutor’s comments. Ibid. The Supreme Court held that defense

counsel’s rejoinder mitigated the effect of the prosecutor’s statement, and

“the jury was not influenced to stray from its responsibility to be fair and

unbiased.” Ibid. In reaching that conclusion, the Court examined “the entire

record,” id. at 16, including the “overwhelming evidence” against the

defendant, id. at 19.

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So too here. Wilson’s defense counsel mounted a similar broadside

attack against the prosecutor’s “constitutional obligation” comments, which

mitigated any effect on the jury. 7 Moreover, the trial judge gave the jury four

instructions to consider the evidence and not the lawyers’ arguments. And

the evidence of Wilson’s guilt was overwhelming.

D

Finally, we reject Wilson’s challenge to the district court’s calculation

of his Guidelines sentencing range. Again, our review is for plain error. See

United States v. del Carpio Frescas, 932 F.3d 324, 332 (5th Cir. 2019) (per

curiam).

Wilson contends the district court erroneously applied the cross-

reference to the obstruction-of-justice Guideline (U.S.S.G. § 2J1.2) instead

of applying the fraud-and-deceit Guideline (id. § 2B1.1) for his false-

_____________________

7

Defense counsel told the jury:

Wow. I think my momma raised me wrong because I was way too polite

during that closing argument by the government. It is not your job to help

the government do anything, and for him to say that is where we go wrong

and where they want you to go wrong. I was polite, but I was outraged.

Your job is to weigh the evidence and apply the law that the judge is going

to tell you it is and reach a conclusion, not to help the government get

somebody convicted. That’s their job. Let’s see if they did their job.

ROA.722–23.

* * *

That’s a question for you to decide, not for [Deputy Atkins] to tell you, I

decided that’s [Wilson]. He took your job. Don’t let him. It’s up to you

whether you want to let them take your job. It’s up to you whether you

want them to use you as their army to convict people. It’s up to you

whether or not you believe in this constitutional government that they

profess. Sometimes I think it’s merely professing.

ROA.730.

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statement conviction under 18 U.S.C. § 1001(a)(2). Such cross-reference-

based, plain-error challenges to Guidelines calculations are reminiscent of

solving Fermat’s Last Theorem. See del Carpio Frescas, 932 F.3d at 342

(Oldham, J., concurring). But we hold the district court did not reversibly err.

Start with § 2B1.1. That provision is “generally applicable to

convictions under § 1001(a)(2).” United States v. Arturo Garcia, 590 F.3d

308, 312 (5th Cir. 2009). But “because § 1001(a)(2) prohibits the making of

any false statement within the jurisdiction of the government, a defendant’s

conduct will often be more aptly covered by another guideline.” Id. at 313

(quotation omitted). Section 2B1.1 provides that the district court should

apply a different guideline when, among other criteria satisfied here, “the

conduct set forth in the count of conviction establishes an offense specifically

covered by another guideline in Chapter Two (Offense Conduct).” U.S.S.G.

§ 2B1.1(c)(3)(C).

Wilson’s count of conviction established an offense covered by

another Guideline in Chapter Two—namely, obstruction of justice in

violation of 18 U.S.C. §§ 1503, 1505. Wilson’s indictment charged him with

“knowingly and willfully mak[ing] a false and fraudulent material statement

and representation, that is, the defendant, Damion Wilson, told Deputy

United States Marshal Michael Atkins that he had not seen or spoken to

Malik Fernandez in six years, when, in truth and in fact, as Damion Wilson

well knew, he had seen and spoken to Malik Fernandez recently.” ROA.17.

The evidence introduced at trial and the stipulation at sentencing gave

further support to that finding. Thus, § 2B1.1(c)(3)(C) directed the district

court to apply the obstruction-of-justice Guideline.

The obstruction-of-justice Guideline is § 2J1.2. True, as Wilson

argues, his offense did not fall under § 2J1.2(b)(1) because it did not involve

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sex offenses or terrorism. 8 But § 2J1.2(b)(2) applies when an “offense

resulted in substantial interference with the administration of justice,” which

Wilson’s conduct did. Given the “wide latitude” afforded to district courts

“to consider information that may be relevant to sentencing,” this was a

permissible decision. United States v. Chiasson, 90 F.4th 832, 836 (5th Cir.

2024).

And even if that was error, it was not plain error, because no on-point,

binding precedent of this court or the Supreme Court forbids a district court

from applying § 2J1.2 in these circumstances. 9 “Arguments that require the

extension of existing precedent cannot meet the plain error standard.”

United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (per curiam), cert.

denied, 144 S. Ct. 1081 (2024). So at a minimum, Wilson has not shown plain

error.

* * *

AFFIRMED.

_____________________

8

An unpublished per curiam decision once suggested that § 2J1.2 applies to a

§ 1001 violation only if the statutory maximum is eight years (due to sex offenses or

terrorism being involved). See United States v. Hatley, 717 F. App’x 457, 463 (5th Cir. 2018)

(per curiam) (unpublished). Of course, that is not precedential. It is also inapplicable,

because § 2B1.1(c)(3) pushes obstructive conduct like Wilson’s into § 2J1.2 regardless of

whether the matter involved sex offenses or terrorism. See U.S.S.G. § 2J1.2(a), (b)(2), (3).

9

Contrary to the dissent’s characterization of our precedent, the Fifth Circuit has

not addressed whether a district court may consider trial evidence in determining whether

to apply the cross-reference. See United States v. Arturo Garcia, 590 F.3d 308, 315 (5th Cir.

2009) (sentencing following a guilty plea); United States v. Griego, 837 F.3d 520 (5th Cir.

2016) (same). Without a clear decision from the Supreme Court or this court, there can be

no plain error.

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James E. Graves, Jr., Circuit Judge, concurring in part and dissenting

in part:

The majority correctly rejects Wilson’s challenges to his conviction.

However, I write separately to (1) express that I neither adopt nor join the

majority’s protracted discussion regarding whether a Terry stop may be

premised solely on the defendant carrying a firearm and (2) dissent from the

majority’s decision to affirm Wilson’s sentence.

I.

Under Terry v. Ohio 1 and our precedent, a stop is justified if officers

have reasonable suspicion that crime is afoot “tak[ing] into account the

totality of the circumstances.” United States v. Alvarez, 40 F.4th 339, 345 (5th

Cir. 2022) (citation omitted); see also United States v. Pack, 612 F.3d 341, 355

(5th Cir. 2010). It is an “objective standard: would the facts available to the

officer at the moment of the seizure or the search ‘warrant a man of

reasonable caution in the belief’ that the action taken was appropriate?”

Terry, 392 U.S. at 21-22 (citation omitted).

As the majority explains, the officers had reasonable suspicion to stop

Wilson because of specific and articulable facts that crime was afoot—

separate and apart from the fact that Wilson was carrying a firearm. There

were facts, known to the officers, that supported a reasonable belief that

Wilson was engaged in harboring a federal fugitive or drug trafficking.

Despite recognizing that there were sufficient facts justifying the Terry

stop, the majority spends more than ten pages recounting the history and

tradition of searches and seizures to explain why a Terry stop could not be

based solely on the fact that a person is carrying a firearm. Here, the Terry

_____________________

1

392 U.S. 1 (1968).

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stop was not based solely on the fact that Wilson was carrying a firearm.

Respectfully, the history is superfluous and unhelpful to the disposition of

this case.

II.

The majority concludes by finding that the district court did not

plainly err in applying the obstruction-of-justice Guideline (U.S.S.G. § 2J1.2)

through the cross reference within the fraud-and-deceit Guideline (id. §

2B1.1(c)(3)) for Wilson’s false-statement conviction under 18 U.S.C. §

1001(a)(2). In doing so, the majority contravenes the rule of orderliness. See

Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (“Under

our rule of orderliness, ‘one panel of our court may not overturn another

panel's decision, absent an intervening change in the law.’” (citation

omitted)).

Because Wilson was convicted for an offense under 18 U.S.C. §

1001(a)(2), generally the applicable Guideline provision would be U.S.S.G. §

2B1.1 (fraud-and-deceit). However, Section 2B1.1(c)(3) directs a district

court to apply a different Guideline when, among other requirements, “the

conduct set forth in the count of conviction establishes an offense specifically

covered by another guideline in Chapter Two (Offense Conduct).” The

district court seemingly used this cross-reference to apply the obstruction-of-

justice Guideline (U.S.S.G. § 2J1.2) pursuant to 18 U.S.C. §§ 1503, 1505—a

decision to which Wilson did not contemporaneously object and which is

subject to plain-error review.

Under plain-error review, “reversal is not required unless there is (1)

an error; (2) that is clear or plain; (3) that affects the defendant’s substantial

rights; and (4) that seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th

Cir.), cert. denied, 531 U.S. 972 (2000). There is no plain error if the

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“substantive legal question . . . was unsettled at the time the trial court

acted.” United States v. Harris, 740 F.3d 956, 966 (5th Cir. 2014) (citation

omitted).

The district court clearly and plainly erred in applying Section 2J1.2

as a cross-reference provision pursuant to Section 2B1.1(c)(3). See United

States v. Arturo Garcia, 590 F.3d 308, 315 (5th Cir. 2009); United States v.

Griego, 837 F.3d 520, 522-23 (5th Cir. 2016). In Arturo Garcia, this Court

dealt with an issue of first impression in our circuit: “under what

circumstances a district court may apply a cross-reference provision pursuant

to U.S.S.G. § 2B1.1(c)(3).” 590 F.3d at 312. There, the defendant pleaded

guilty to making a false statement under 18 U.S.C. § 1001(a)(2) and argued

that the district court erred by using Section 2B1.1(c)(3) to apply the U.S.S.G

§ 2L1.1 Guideline, which covers “Smuggling, Transporting, or Harboring an

Unlawful Alien.” Id. at 311-13. The Court stated that it “f[ound] persuasive

the reasoning of several other circuits, which after considering this same

issue, have held that a sentencing court may apply a cross-reference provision

under U.S.S.G. § 2B1.1(c)(3) only if the application of that provision is

supported by the conduct alleged in the indictment.” Id. at 315 (emphasis

added). Applying that rule, the Court concluded that the district court did

not err when it used Section 2L1.1 to determine the defendant’s base offense

because one criminal statute that applies to that provision is 8 U.S.C. §

1185(a)(2) and the “‘count of conviction’—Count 1 of the one-count

indictment” covered conduct under that statute. Id. at 316.

The Court built upon the Arturo Garcia rule in Griego. There, the

defendant pleaded guilty to an offense under 18 U.S.C. § 1001(a)(2), and

similar to the case at bar, the district court found the relevant Guideline to be

Section 2J1.2 pursuant to the Section 2B1.1(c)(3) cross-reference. Griego, 837

F.3d at 521-22. The government argued that the defendant’s conduct

satisfied 18 U.S.C. § 1505 (“Obstruction of proceedings before departments,

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agencies, and committees”). Id. at 522. The Court concluded that applying

the cross-reference was a significant procedural error, affirming that “a

district court may apply a cross-reference provision pursuant to § 2B1.1(c)(3)

only if the facts alleged in the indictment establish the elements of another

offense for which the other guideline is applicable.” Id. at 522 (citing Arturo

Garcia, 590 F.3d at 315-16). The Court explained that the defendant’s

indictment alleged that he “did knowingly and willfully make a false,

fraudulent and fictitious material statement and representation,” which

satisfied the “generalized mens rea” of 18 U.S.C. § 1001. Id. at 523.

However, offenses under 18 U.S.C. § 1505 require proof that the defendant

acted “‘corruptly’[,] . . . with the specific intent to subvert or undermine the

due administration of justice.” Id. Because the defendant’s indictment did

not sufficiently allege the more specific mens rea required to violate 18

U.S.C. § 1505, the district court erred in applying Section 2J1.2. Id.

Here, Wilson’s indictment states: “[Wilson] did knowingly and

willfully make a false and fraudulent material statement and representation,

that is, the defendant DAMION WILSON, told Deputy United States

Marshal Michael Atkins that he had not seen or spoken to Malik Fernandez

in six years, when in truth and in fact, as DAMION WILSON well knew, he

had seen and spoken to Malik Fernandez recently, in violation of Title 18,

United States Code, Section 1001.” This language is virtually identical to the

language in Griego, which was insufficient to establish the mens rea required

for a conviction under 18 U.S.C. § 1505. See Griego, 837 F.3d at 523.

Moreover, 18 U.S.C. § 1503 similarly requires the defendant to have “acted

corruptly with the specific intent to influence, obstruct, or impede th[e]

judicial proceeding in its due administration of justice.” United States v.

Richardson, 676 F.3d 491, 502 (5th Cir. 2012). So the indictment also does not

support a conviction under 18 U.S.C. § 1503.

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The majority attempts to distinguish these precedents by reasoning

that they involved plea agreements, while here the district court had also had

trial evidence and an additional stipulation at sentencing before it. Citing

United States v. Chiasson, 2 the majority finds that the district court had “wide

latitude” to consider all this information and find that Wilson’s offense met

the standard for obstruction. This reasoning is flawed. 3

For one, Chiasson was not a case involving application of the Section

2B1.1(c)(3) cross-reference, and it certainly did not purport to abrogate

Griego or Arturo Garcia. See Chiasson, 90 F.4th at 836. And in Arturo Garcia,

there was more information before the Court than just the indictment. The

district court also had before it a stipulated factual basis document, as is often

the case when a district court accepts a plea. Arturo Garcia, 590 F.3d at 311.

Yet, the Court still held that the Section 2B1.1(c)(3) cross-reference was only

appropriate if the facts alleged in the indictment established the elements of

another offense. Id. at 315.

Moreover, the Court in Arturo Garcia explicitly “adopt[ed] the

reasoning of . . . other circuits” that have required the indictment to allege

the conduct necessary to apply a cross-reference provision pursuant to

Section 2B1.1(c)(3). Id. at 315. Arturo Garcia specifically cited United States

v. Genao, 343 F.3d 578 (2d Cir. 2003); United States v. Bah, 439 F.3d 423 (8th

Cir. 2006); and United States v. Kim, 95 F. App’x 857 (9th Cir. 2004). See

Arturo Garcia, 590 F.3d at 315 n.15. Notably, in Bah, where the defendant

pleaded guilty, the Eighth Circuit explained that while an agent’s testimony

at the sentencing hearing might have established a more serious offense than

_____________________

2

90 F.4th 832, 836 (5th Cir. 2024).

3

The majority also curiously suggests that the district court applied Section

2J1.2(b)(2). But that subsection applies an enhancement for specific characteristics of

obstruction of justice offenses, which the district court indisputably did not apply.

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18 U.S.C. § 1001, the conduct alleged in the indictment did not establish such

an offense and so the Section 2B1.1(c)(3) cross-reference was not applicable.

Bah, 439 F.3d at 428. Further, in Kim, the defendant had been convicted after

a jury trial, but the Ninth Circuit explained: “Whether or not the government

proved the heightened mens rea at trial is immaterial; under the terms of the

cross-referenced provision, the statutory element had to be established by the

allegations of the indictment.” Kim, 95 F. App’x at 862.

The reason for this focus on the indictment, i.e. interpreting Section

2B1.1(c)(3)’s reference to “count of conviction” to mean the indictment, is

because the prior Guideline provision contained “substantially broader

language.” Genao, 343 F.3d at 583. As explained by the Eighth Circuit:

Under the prior version of the guidelines, sentencing for a

violation of § 1001 was governed by the former § 2F1.1, which

contained a similar cross-reference provision that allowed the

district court to consider not only the indictment or

information setting forth the count of conviction but also “(a

stipulation described in § 1B1.2(a)).” U.S.S.G. § 2F1.1

(deleted), cmt. n. 14 (1998). However, when § 2F1.1 and §

2B1.1 were consolidated, this parenthetical phrase in § 2F1.1

was not adopted. Clearly, the Sentencing Commission

intended to limit the application of the cross-reference to

situations in which the conduct set forth solely in the count of

conviction establishes another offense.

Bah, 439 F.3d at n.3. 4

_____________________

4

The prior Guideline version further allowed a cross-reference when the

indictment “establishe[d] an offense more aptly covered by another guideline.” Genao, 343

F.3d at 583 (quoting U.S.S.G. § 2F1.1 (deleted, cmt., n. 14 (1998) (emphasis added)). In

contrast Section 2B1.1(c)(3) more narrowly requires “the count of conviction specifically

cover[] . . . another guideline.” (emphasis added); see generally Genao, 343 F.3d at 584 n.8.

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The Court’s reliance in Arturo Garcia on the reasoning of these out-

of-circuit cases is further evidence that it meant what it said: “a sentencing

court may apply a cross-reference provision under U.S.S.G. § 2B1.1(c)(3)

only if the application of that provision is supported by the conduct alleged

in the indictment.” Arturo Garcia, 590 F.3d at 315; see Griego, 837 F.3d at 522.

Application of the cross-reference was plain or obvious error.

Additionally, application of the Section 2J1.2 cross-referencing

provision affected Wilson’s substantial rights because he was sentenced at

the top of the Guidelines range (81 to 87 months) to 87 months. Had the

district court applied the correct Guideline, his sentencing range would have

been 72 to 78 months. See U.S.S.G. Ch.5, Pt. A. “Absent unusual

circumstances,” such as if the sentencing judge explained in detail how he

“based the sentence on factors independent of the Guidelines,” the

defendant “need only ‘point to the application of an incorrect, higher

Guidelines range and the sentence thereunder’ to demonstrate” an effect on

his substantial rights.” United States v. Parra, 111 F.4th 651, 661 (5th Cir.

2024) (citations omitted) (cleaned up). As the sentencing judge did not so

explain and Wilson’s sentence was erroneously increased by at least nine

months, Wilson has established an effect on his substantial rights. See Molina-

Martinez v. United States, 578 U.S. 189, 200 (2016) (“In most cases a

defendant who has shown that the district court mistakenly deemed

applicable an incorrect, higher Guidelines range has demonstrated a

reasonable probability of a different outcome.”). This error warrants an

exercise of the Court’s discretion to correct. See Rosales-Mireles v. United

States, 585 U.S. 129, 140 (2018) (“The risk of unnecessary deprivation of

liberty particularly undermines the fairness, integrity, or public reputation of

judicial proceedings.”); see also United States v. Marroquin, 884 F.3d 298, 301

(5th Cir. 2018) (exercising discretion to correct a sentencing error that

imposed a sentence four months above the correct guidelines range).

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For these reasons, I respectfully dissent in part.

36