United States v. Anthony Mackey

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-10021

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY TYRONE MACKEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:23-cr-00137-TJC-MCR-1

____________________

Before JORDAN, KIDD, and ANDERSON, Circuit Judges.

PER CURIAM:

Anthony Mackey appeals his conviction for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(8). On appeal, he first argues that the district court

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2 Opinion of the Court 25-10021

plainly erred in denying his motion for a new trial because the gov-

ernment argued facts not in evidence during closing and rebuttal

arguments about his ownership of a backpack containing a pistol

and about the weight of the shotgun. Both the pistol and the shot-

gun were found in a car that he was driving. Second, he argues that

the court erred in convicting him under § 922(g)(1) because the

statute exceeds Congress’s authority under the Commerce Clause

and violates his Second Amendment rights, in light of United States

v. Rahimi, 602 U.S. 680 (2024), and N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022).

I. DISCUSSION

A. Improper Remarks by Prosecution

We review a district court’s denial of a motion for a new trial

under Federal Rule of Criminal Procedure 33 for abuse of discre-

tion. United States v. Pulido, 133 F.4th 1256, 1275 n.15 (11th Cir.

2025). Rule 33 provides that, on a defendant’s motion, a court

“may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). We have defined the

interest-of-justice standard as “a broad standard” that “is not lim-

ited to cases where the district court concludes that its prior ruling,

upon which it bases the new trial, was legally erroneous.” United

States v. Vicaria, 12 F.3d 195, 198 (11th Cir. 1994). The filing of a

motion for a new trial does not cure a defendant’s failure to con-

temporaneously object at trial, and such claims are reviewed for

plain error. United States v. Bobal, 981 F.3d 971, 975 (11th Cir. 2020).

To show plain error, the defendant must demonstrate that: (1) an

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25-10021 Opinion of the Court 3

error occurred; (2) the error was plain; and (3) the error affected his

substantial rights. United States v. Smith, 459 F.3d 1276, 1283 (11th

Cir. 2006). Further, if the first three conditions are met, we may

exercise our discretion to notice a forfeited error only if the error

seriously affects the fairness or integrity of judicial proceedings. Id.

An error is not plain unless it is contrary to explicit statutory provi-

sions or controlling precedent from either the Supreme Court or

us. United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009).

“To find prosecutorial misconduct, a two-element test must

be met: (1) the remarks must be improper, and (2) the remarks

must prejudicially affect the substantial rights of the defendant.”

United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (quota-

tions omitted). Moreover, “[a] defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that, but

for the remarks, the outcome of the trial would be different.” Id.

(quotation omitted and alterations accepted). “The court makes

this determination in the context of the entire trial and in light of

any curative instruction.” Id. (quotation omitted). We consider

four factors in determining whether a prosecutor’s conduct had a

reasonable probability of changing a trial’s outcome: (1) whether

the challenged comments had a tendency to mislead the jury or

prejudice the defendant; (2) whether the comments were isolated

or extensive; (3) whether the comments were deliberately or acci-

dentally placed before the jury; and (4) the strength of the compe-

tent proof establishing the defendant’s guilt. United States v. Lopez,

590 F.3d 1238, 1256 (11th Cir. 2009).

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4 Opinion of the Court 25-10021

Closing argument exists to assist the jury in analyzing the

evidence. United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014).

Although a prosecutor may not exceed the evidence presented at

trial during his closing argument, he may state conclusions drawn

from the trial evidence. Id. A prosecutor may urge the jury to draw

inferences and conclusions from the evidence presented at trial.

United States v. Rivera, 780 F.3d 1084, 1100 (11th Cir. 2015). A pros-

ecutor’s suggestion or comments are inappropriate if “calculated

to mislead or inflame the jury’s passions.” United States v. Azmat,

805 F.3d 1018, 1044 (11th Cir. 2015).

“[B]ecause the statements of counsel are not evidence, the

district court may rectify improper prosecutorial statements by in-

structing the jury that only the evidence in the case is to be consid-

ered.” United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992).

Furthermore, the jury is presumed to have followed any curative

instruction. Wilson, 149 F.3d at 1302. “If the district court gave a

curative instruction but refused to declare a mistrial . . . we will re-

verse only if the objected-to testimony was so prejudicial that its

harm was incurable.” United States v. Gallardo, 977 F.3d 1126, 1138

(11th Cir. 2020). “Furthermore, when the record contains suffi-

cient independent evidence of guilt, any error was harmless.”

United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007).

As an initial matter, Mackey’s claim is reviewed for plain er-

ror because he did not object at trial to any of the government’s

statements during its closing argument or rebuttal. See Bobal, 981

F.3d at 975.

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Here, the government’s remarks during closing argument

that “[t]his shotgun is big. It has a presence. And it is heavy” were

not improper. See Wilson, 149 F.3d at 1301. Rather, these state-

ments were reasonable inferences from the evidence at trial,

namely, that the shotgun pictured in Exhibits 1 and 5 looked big

and it was, therefore, unlikely that Mackey did not know of its pres-

ence in the car’s backseat, consistent with Officer Al-Amair’s testi-

mony that it was visible. See Rivera, 780 F.3d at 1100. Similarly, the

government’s arguments that Mackey owned the backpack, during

its closing arguments and rebuttal, were also reasonable inferences

based on the car owner’s testimony that he did not own a backpack

and that no backpack was in the car when he lent it to Mackey, and

Officers Al Amair’s and Soto Vasquez’s testimonies that Mackey

was the car’s only occupant at the time of the search and his other

belongings were in the backseat along with the backpack. See Ri-

vera, 780 F.3d at 1100.

Regardless, the government’s statements about the back-

pack’s ownership and the shotgun’s weight did not prejudicially af-

fect Mackey’s substantial rights because the court instructed the

jury prior to deliberation that it could only consider the evidence

and that the lawyers’ statements were not evidence. See Jacoby, 955

F.2d at 1541. Moreover, the court answered the jury’s questions

about the shotgun’s weight and the ownership of the backpack by

instructing them to rely on the evidence. Mackey has not cited any

cases in support of his argument that the court’s curative instruc-

tion was insufficient because the jury had asked questions about

the evidence, nor has he shown that the government’s statements

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6 Opinion of the Court 25-10021

were so prejudicial that its harm was incurable. See Gallardo, 977

F.3d at 1138. Accordingly, we affirm as to this issue.

B. Constitutionality of § 922(g)(1)

We review de novo challenges to the constitutionality of a

statute. United States v. Dubois, 139 F.4th 887, 890 (11th Cir. 2025)

(“Dubois II”). We are bound to adhere to our prior-panel precedent

unless that precedent has been abrogated by us or by the Supreme

Court. United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016).

A Supreme Court decision “must be clearly on point” to constitute

an overruling for the purposes of the prior-panel-precedent rule.

United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quotation

marks omitted). To abrogate a precedent, the Supreme Court must

also “demolish and eviscerate” each of its “fundamental props.”

United States v. Lightsey, 120 F.4th 851, 860 (11th Cir. 2024) (quota-

tion marks omitted). “The prior panel precedent rule applies re-

gardless of whether the later panel believes the prior panel’s opin-

ion to be correct, and there is no exception to the rule where the

prior panel failed to consider arguments raised before a later

panel.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)

(citation omitted).

The Commerce Clause reads: “The Congress shall have

Power . . . To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.” U.S. Const.

art. I, § 8, cl. 3. We have “clearly held that § 922(g) is constitutional

under the Commerce Clause.” United States v. Longoria, 874 F.3d

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1278, 1283 (11th Cir. 2017), abrogated on other grounds by Erlinger v.

United States, 602 U.S. 821, 849 (2024). We have also rejected as-

applied challenges to § 922(g), holding that there is a “minimal

nexus” to interstate commerce where the government shows that

the firearms at issue were manufactured outside the state where

the offense took place and, thus, necessarily traveled in interstate

commerce. United States v. Wright, 607 F.3d 708, 715-16 (11th Cir.

2010). In United States v. McAllister, we explicitly rejected the argu-

ment that Lopez rendered § 922(g)(1) unconstitutional as applied to

a defendant convicted of possessing a firearm as a felon, holding

that § 922(g)(1)’s statutory requirement of a connection to inter-

state commerce was sufficient to satisfy the “minimal nexus” re-

quirement that remained in binding precedent. 77 F.3d 387, 390

(11th Cir. 1996). In United States v. Scott, we held that United States

v. Morrison, 529 U.S. 598, 615-18 (2000) (holding that the Commerce

Clause did not provide Congress with authority to enact a civil

remedy provision of the Violence Against Women Act because the

provision was not one regulating activity substantially affecting in-

terstate commerce), did not abrogate McAllister because

§ 922(g)(1)’s statutorily required connection to interstate com-

merce “immunizes § 922(g)(1) from Scott’s facial constitutional at-

tack.” 263 F.3d 1270, 1273 (11th Cir. 2001).

The Second Amendment reads: “A well regulated Militia, be-

ing necessary to the security of a free State, the right of the people

to keep and bear Arms, shall not be infringed.” U.S. Const.

amend. II. Section 922(g) of Title 18 of the U.S. Code prohibits an-

yone who has been convicted of a crime punishable by more than

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8 Opinion of the Court 25-10021

one year of imprisonment from possessing a firearm or ammuni-

tion. 18 U.S.C. § 922(g)(1).

In District of Columbia v. Heller, the Supreme Court held that

the Second Amendment right to bear arms presumptively “belongs

to all Americans,” but “is not unlimited.” 554 U.S. 570, 581, 626

(2008). The Supreme Court noted that, while it “[did] not under-

take an exhaustive historical analysis . . . of the full scope of the

Second Amendment, nothing in [its] opinion should be taken to

cast doubt on longstanding prohibitions on the possession of fire-

arms by felons and the mentally ill.” Id. at 626. The Supreme Court

labeled these restrictions as “presumptively lawful.” Id. at 627 n.26.

It specifically ruled that the District of Columbia had to allow Hel-

ler to carry his handgun in his home “[a]ssuming that Heller [was]

not disqualified from the exercise of Second Amendment rights[.]”

Id. at 635.

After Heller, we held in United States v. Rozier that § 922(g)(1)

did not violate the Second Amendment, “even if a felon possesses

a firearm purely for self-defense.” 598 F.3d 768, 770 (11th Cir. 2010).

Rozier did not rely on means-end scrutiny to conclude that

§ 922(g)(1) was constitutional, but instead recognized that prohib-

iting felons from possessing firearms was a “presumptively lawful

longstanding prohibition.” Id. at 771 (quotation marks omitted).

We stated that Heller’s clarification that it should not be read to cast

doubts on prohibitions on possession of firearms by felons “sug-

gest[ed] that statutes disqualifying felons from possessing a firearm

under any and all circumstances do not offend the Second Amend-

ment.” Id. We concluded that Rozier’s self-defense purpose, and

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keeping the gun in his home, were immaterial because felons as a

class could be excluded from firearm possession. Id. In a footnote,

we rejected Rozier’s argument that the statement from Heller that

“nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons”

was merely dicta and should not be afforded authoritative weight.

Id. at 771 n.6. We reasoned that (1) to the extent that the statement

“limit[ed] the Court’s opinion to possession of firearms by law-

abiding and qualified individuals,” it was necessary to the decision

reached; and (2) even if the statement were superfluous to Heller’s

central holding, we would still afford it “considerable weight,” as

dicta from the Supreme Court is not to be lightly ignored. Id.

Several years later, in Bruen, the Supreme Court considered

a Second Amendment challenge to New York’s gun-licensing re-

gime that limited when a law-abiding citizen could obtain a license

to carry a firearm outside the home. See Bruen, 597 U.S. at 11-13.

The Court recognized that “the Second and Fourteenth Amend-

ments protect an individual’s right to carry a handgun for self-de-

fense outside the home.” Id. at 10. The Court explained that, to

determine whether a restriction on firearms was constitutional,

courts must begin by asking whether the firearm regulation at issue

governs conduct that falls within the plain text of the Second

Amendment. Id. at 17. If the regulation does cover such conduct,

the court may uphold it only if the government “affirmatively

prove[s] that its firearms regulation is part of the historical tradition

that delimits the outer bounds of the right to keep and bear arms.”

Id. at 19. Bruen emphasized that Heller established the correct test

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10 Opinion of the Court 25-10021

for determining the constitutionality of gun restrictions. See id. at

39 (applying “Heller’s text-and-history standard” to the challenged

statute). And, like Heller, Bruen described Second Amendment

rights as extending to “law-abiding, responsible citizens . . . for self-

defense.” Id. at 26 (internal quotation marks omitted).

After Bruen, in United States v. Dubois, 94 F.4th 1284, 1291-93

(11th Cir. 2024) (“Dubois I”), judgment vacated sub nom. Dubois v.

United States., 145 S. Ct. 1041 (2025), and reinstated by Dubois II, 139

F.4th 887, we rejected a defendant’s Second Amendment challenge

to § 922(g). We held that the challenge was foreclosed by Rozier,

which “interpreted Heller as limiting the [Second Amendment]

right to law-abiding and qualified individuals and as clearly exclud-

ing felons from those categories by referring to felon-in-possession

bans as presumptively lawful.” Id. at 1293 (quotation marks omit-

ted). Although the defendant argued that Bruen abrogated Rozier,

we observed that, even in Bruen, the Supreme Court continued to

describe the right to bear arms as extending only to “law-abiding,

responsible citizens.” Id. (internal quotation marks omitted). We

also rejected the defendant’s argument that Bruen abrogated all

prior Second Amendment precedent based on a two-step, means-

end scrutiny test because Rozier was not based on that framework.

Id. Instead, Rozier was based on our understanding that Heller lim-

ited the Second Amendment’s protections “to law-abiding and

qualified individuals” and excluded “felons from those catego-

ries[.]” Id. (quotation marks omitted). Because Bruen “repeatedly

stated that its decision was faithful to Heller,” we held that Bruen did

not abrogate Rozier based on Rozier’s reliance on Heller. Id. We

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concluded that we were bound by Rozier and, because Rozier fore-

closed a Second Amendment challenge to § 922(g)(1), we affirmed

the defendant’s conviction. Id.

Meanwhile, in Rahimi, the Supreme Court considered a Sec-

ond Amendment challenge to § 922(g)(8), the federal statute pro-

hibiting an individual subject to a domestic-violence restraining or-

der from possessing a firearm when the order includes a finding

that he represents a credible threat to the safety of an intimate part-

ner, their child, or an individual. 602 U.S. at 684-85. It held that this

firearm restriction was constitutional. Id. at 693. It once again de-

clared that prohibitions on “the possession of firearms by ‘felons

and the mentally ill,’ are ‘presumptively lawful.’” Id. at 699 (quot-

ing Heller, 554 U.S. at 626-27 n.26). It clarified that it was not sug-

gesting that “the Second Amendment prohibits the enactment of

laws banning the possession of guns by categories of persons

thought by a legislature to present a special danger of misuse.” Id.

at 698. Finally, the Court rejected the government’s argument that

a person could be disarmed because they were not “responsible,”

reasoning that the term was vague and was used in Heller and Bruen

simply to describe the class of ordinary citizens who undoubtedly

enjoy the Second Amendment right and those cases did not define

the term or say anything about the status of citizens who were not

“responsible.” Id. at 701-02.

On January 13, 2025, the U.S. Supreme Court granted certi-

orari in Dubois I and vacated and remanded the case to us for fur-

ther consideration in light of Rahimi. Dubois, 145 S. Ct. 1041. On

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12 Opinion of the Court 25-10021

June 2, 2025, we issued our opinion in Dubois II on remand, holding

that “Rahimi—like . . . Bruen . . . —did not abrogate our holding in

Rozier that section 922(g)(1) is constitutional under the Second

Amendment[.]” Dubois II, 139 F.4th at 889. Accordingly, we rein-

stated our prior opinion and affirmed Dubois’s convictions and sen-

tence. Id. Thus, we reaffirmed the precedential authority of Rozier

over Second Amendment challenges to § 922(g)(1). Id. at 893. We

noted that the only time that Rahimi mentioned felons was to reit-

erate Heller’s conclusion that prohibiting felons from possessing

firearms is presumptively lawful. Id. at 892-93. “This endorsement

of the underlying basis for our prior holding that section 922(g)(1)

does not violate the Second Amendment suggests that Rahimi re-

inforced—not undermined—Rozier.” Id. at 893. We stated that we

needed “clearer instruction from the Supreme Court before we

may reconsider the constitutionality of section 922(g)(1).” Id. Du-

bois thereafter petitioned us to rehear the case en banc, which we

denied.

More recently, we have held that Rozier and Dubois II con-

tinue to foreclose constitutional challenges to § 922(g)(1) as a vio-

lation of the Second Amendment pursuant to the prior-panel-prec-

edent rule. United States v. Hicks 166 F.4th 933, 939 (11th Cir. 2026).

Here, the district court did not err in convicting Mackey un-

der § 922(g) because our binding precedent in Rozier forecloses his

Second Amendment challenge to § 922(g), and our binding prece-

dent in Wright and Scott foreclose his argument that § 922(g) ex-

ceeds Congress’s authority under the Commerce Clause.

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AFFIRMED.