United States v. Sencheze Dunlap

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12883

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SENCHEZE DONTAY DUNLAP,

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:22-cr-00021-HL-TQL-1

____________________

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2 Opinion of the Court 23-12883

Before BRASHER, ABUDU, and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Sencheze Dunlap, proceeding with counsel, ap-

peals his conviction for possessing a firearm as a felon, in violation

of 18 U.S.C. § 922(g)(1). On appeal, he challenges the constitution-

ality of § 922(g)(1), both facially and as applied to him. Having read

the parties’ briefs and reviewed the record, we affirm Dunlap’s con-

viction.

I.

We generally review de novo the constitutionality of a statute

but review for plain error only where a defendant raises his consti-

tutional challenge to his statute of conviction for the first time on

appeal. United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019)

(citing United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010)).

The Supreme Court has held that a criminal defendant’s guilty plea

does not bar a subsequent constitutional challenge to the statute of

conviction. Class v. United States, 583 U.S. 174, 178, 138 S. Ct. 798,

803 (2018).

An error is plain if the legal rule is clearly established at the

time the case is reviewed on direct appeal. United States v. Hender-

son, 409 F.3d 1293, 1307-08 (11th Cir. 2005). If the explicit language

of a statute or rule does not resolve an issue, plain error lies only

where this court’s or the Supreme Court’s precedent directly re-

solves it. United States v. Moore, 22 F.4th 1258, 1266 (11th Cir. 2022)

(citing United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015)).

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23-12883 Opinion of the Court 3

Additionally, under the prior panel precedent rule, “a prior panel’s

holding is binding on all subsequent panels unless and until it is

overruled or undermined to the point of abrogation by the Su-

preme Court or by this court sitting en banc.” United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008); see also Gissendaner v. Comm’r,

Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015) (“Until the

Supreme Court issues a decision that actually changes the law, we

are duty-bound to apply this Court’s precedent . . . .”). “To consti-

tute an overruling for the purposes of this prior panel precedent

rule, the Supreme Court decision must be clearly on point.” United

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

omitted). “In addition to being squarely on point, the doctrine of

adherence to prior precedent also mandates that the intervening

Supreme Court case actually abrogate or directly conflict with, as

opposed to merely weaken, the holding of the prior panel.” Id.

II.

On appeal, Dunlap argues that 18 U.S.C. § 922(g)(1) is fa-

cially unconstitutional considering Supreme Court rulings and that

the plain text of the Second Amendment covers the possession of

firearms by people who are not necessarily law-abiding. In the al-

ternative, Dunlap claims that even if the statute is constitutional, it

is unconstitutional as applied to him because there is no historical

tradition that supports prohibiting firearm possession by persons

with his kind of criminal history. The Second Amendment reads:

“A well-regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. Section 922(g) of Title 18 of the

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4 Opinion of the Court 23-12883

United States Code prohibits anyone who has been convicted of a

crime punishable by more than one year of imprisonment from

possessing a firearm or ammunition. 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, 128

S. Ct. 2783, 2791, 2816 (2008). The Supreme Court stated that,

while it “[did] not undertake 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 firearms by felons.” Id. at 626, 128 S. Ct. at 2816-17.

In United States v. Rozier, we relied on Heller in ruling that

§ 922(g)(1) did not violate the Second Amendment. 598 F.3d 768,

770 (11th Cir. 2010). In concluding that § 922(g)(1) was constitu-

tional, we recognized that prohibiting felons from possessing fire-

arms was a “presumptively lawful longstanding prohibition.” Id.

at 771 (citation omitted).

In N.Y. State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142

S. Ct. 2111 (2022), the Supreme Court stated that a court must ask

whether the firearm regulation at issue governs conduct that falls

within the plain text of the Second Amendment. Id. at 17, 142 S.

Ct. at 2126. If the regulation does govern such conduct, the court

will uphold it if the government “affirmatively prove[s] that its fire-

arms regulation is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms.” Id. at 19, 142 S.

Ct. at 2127. The Supreme Court in Bruen, as it did in Heller,

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23-12883 Opinion of the Court 5

referenced the Second Amendment rights of “law-abiding, respon-

sible citizens.” Id. at 9, 142 S. Ct. at 2122, Id. at 26, 142 S. Ct. at

2131, Id. at 70, 142 S. Ct. at 2156.

After Bruen, we rejected a defendant’s Second Amendment

challenge to § 922(g)(1). United States v. Dubois, 94 F.4th 1284,

1291-93 (11th Cir. 2024). We noted that Bruen, like Heller, repeat-

edly described the right to bear arms as extending only to “law-

abiding, responsible citizens.” Id. at 1292-93. We then determined

that Bruen did not abrogate our precedent in Rozier under the prior

panel precedent rule because the Supreme Court made it clear that

Heller did not cast doubt on felon-in-possession prohibitions, and

because the Supreme Court made it clear in Bruen that its holding

was in keeping with Heller. Id. at 1293. We noted that Rozier inter-

preted Heller as limiting the right to “law-abiding and qualified in-

dividuals,” and as clearly excluding felons from those categories by

referring to felon-in-possession bans as presumptively lawful. Id.

We held that, because clearer instruction was required from the

Supreme Court before we could reconsider § 922(g)(1)’s constitu-

tionality, we were still bound by Rozier, and Dubois’s challenge

based on the Second Amendment necessarily failed. Id.

III.

The record demonstrates that the district court did not

plainly err in convicting Dunlap under § 922(g)(1) because our

binding precedent from Rozier, holding that § 922(g)(1) is constitu-

tional, and Dubois, confirming the constitutionality of § 922(g)(1)

post-Bruen, conclusively forecloses his argument. Rozier, 598 F.3d

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6 Opinion of the Court 23-12883

at 770-71; Dubois, 94 F.4th at 1293. Further, § 922(g)(1) is consistent

with the text and history of the Second Amendment and is consti-

tutionally sound. Dunlap also can cite no authority that would sup-

port an as-applied challenge to his § 922(g)(1) conviction. Accord-

ingly, based on the aforementioned reasons, we affirm Dunlap’s

conviction.

AFFIRMED.