# United States v. Wilson

> Court of Appeals for the Fifth Circuit · July 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11102807

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 17, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Direct Criminal
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- explaining Fourth Amendment reasonableness does not turn on State labels

## Opinion text

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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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

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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

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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

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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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No. 23-30777

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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No. 23-30777

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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No. 23-30777

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11102807. Public record. Not legal advice.