Petition for Writ of Certiorari — Zachary Michael Linan, Petitioner v. United States

No.____________

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IN THE

SUPREME COURT OF THE UNITED STATES

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ZACHARY MICHAEL LINAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT COURT

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PETITION FOR WRIT OF CERTIORARI

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JOSEPH OSTINI

Attorney at Law

30 Clayburne Blvd.

Chillicothe, OH, 45601

Tel.: (888) 529-9242

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Did the Fifth Circuit err in affirming the district court’s application of

U.S.S.G. § 2A1.2(a)(1) (Second Degree Murder) rather than § 2A2.2 (Aggravated

Assault) or § 2K2.1 (Prohibited Possession of Firearms) in a manner that expands

judicial fact-finding at sentencing beyond the jury’s verdict, in violation of the Fifth

and Sixth Amendments and in conflict with the principle that sentencing

enhancements should not be based on unproven allegations?

2. Is U.S.C. § 922(g)(1) unconstitutional in light of Bruen and its

accompanying decisions?

1

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............................................................ 1

TABLE OF CONTENTS ........................................................................................... 2

OPINIONS BELOW ................................................................................................. 6

PARTIES TO THE PROCEEDING AND COMPLIANCE WITH RULE 14(B) ..... 6

JURISDICTION........................................................................................................ 6

CONSTITUTIONAL AND STATUTORY PROVISIONS........................................ 6

STATEMENT OF THE CASE .................................................................................. 8

REASONS FOR GRANTING THE WRIT ............................................................. 10

CONCLUSION........................................................................................................ 36

APPENDIX........................................................................................................... Post

APP. A. OPINION OF FIFTH CIRCUIT COURT OF APPEALS

APP. B. JUDGMENT OF DISTRICT COURT

2

TABLE OF AUTHORITIES

Cases

Baze v. Rees, 553 U.S. 35, 94 (2008) ....................................................................... 32

McDonald v. Chicago, 561 U.S. 742, 778 (2010).................................................... 26

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ___ (2022)

.......................................................................………………7. 9, 22, 26, 35, 36

Range v. Att’y Gen., 69 F.4th 96 (3d Cir. 2023) ..................................................... 22

United States v. Bean, 537 U.S. at 76, (2002) ........................................................ 30

United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011) ....................................... 29

United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012)……..………………9.

United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024) ................................ 9

United States v. Linan, No. 24-50141 (5th Cir. Dec. 24, 2024) ............................... 9

United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998) ................................. 10

United States v. Rahimi, 61 F.4th 443, 450 (5th Cir.), cert. granted, 144 S. Ct. 52

(2023) .............................................................................. 23, 24, 25, 26, 27, 28

United States v. Torres, 789 F. App’x 655, 658 n.2 (9th Cir. 2020) ...................... 34

United States v. Torres, 923 F.3d 420, 423 (5th Cir. 2019) ................................... 17

Watson v. Stone, 148 Fla. 516, 524, 4 So. 2d 700 (1941) ....................................... 36

Weeks v. Collins 867 F. Supp 544, 548 (S.D. Tex. 1994) ....................................... 13

Weeks v. State, 834 S.W.2d 559, 561 (Tex. App.—Eastland 1992) ....................... 13

Welling’s Case, 47 Va. 670, 670 (Va. Gen. Ct. 1849) ............................................. 32

3

Statutes

U.S.C. § 922(g)(1) .......................................................... 1, 6,7, 8, 22-24, 29-30, 34,36

18 U.S.C. § 922(g)(8) ......................................................................................... 23, 25

18 U.S.C. § 1111…………………………………………………………………………..12

18 U.S.C. § 3742 ........................................................................................................ 6

28 U.S.C. § 1254(1) ................................................................................................... 6

28 U.S.C. § 1291 ........................................................................................................ 6

Federal Firearms Act, Ch. 850, §§ 1(6), 2(f), 52 Stat. 1250, 1250–51 (1938) ........ 29

Mass. Gen. Laws 484 (1776) ................................................................................... 32

Other Authorities

Acts and Laws of His Majesty’s Province of New-Hampshire in New England 2

(1759) ............................................................................................................ 32

Adam Winkler, Racist Gun Laws and the Second Amendment, 135 Harv. L. Rev. F.

537 ................................................................................................................ 29

Erika Pesantes, Love Hurts: Man Arrested for Releasing Helium Balloon with His

Girlfriend, Sun Sentinel (Feb. 22, 2013) ..................................................... 34

George C. Wright, Racial Violence in Kentucky 1865-1940: Lynchings, Mob Rule &

“Legal Lynchings” 169-170 (Baton Rouge: LSU Press, 1990) .................... 35

Greenlee, Joseph, The Historical Justification for Prohibiting Dangerous Persons

from Possessing Arms from Possessing Arms, Wyoming Law Review Vol. 20

Num. 9, Art. 7, 2020 .......................................................................... 29, 32-34

4

Tex. Penal Code Ann. § 22.01 ........................................................................... 16, 17

Tex. Penal Code Ann. § 22.02 ................................................................................. 17

U.S.S.G. § 1B1.1................................................................................................ 18, 19

U.S.S.G. § 2A1.2(a)(1) ................................................................... 1, 7, 10, 11, 12, 36

U.S.S.G. § 2A2.2........................................................ 1, 10, 12, 15, 17, 18, 19, 20, 36

U.S.S.G. § 2K2.1 ............................................................................... 1, 10, 15, 20, 36

Utah Code Ann. § 13-10b-201(2)(b) ........................................................................ 34

W. VA. Code Ann. § 61-3A-3(c) ............................................................................... 34

5

OPINIONS BELOW

The Fifth Circuit Court of Appeals unpublished decision is attached as [App.

A]. The Judgment of the District Court is attached as [App. B].

PARTIES TO THE PROCEEDING AND COMPLIANCE WITH RULE 14(B)

The parties concerned are included in the caption of this matter, and there

are no corporate parties.

JURISDICTION

The jurisdiction of the Fifth Circuit Court of Appeals was invoked from the

denial by the United States District Court for the Western District of Texas, under

28 U.S.C. § 1291 and 18 U.S.C. § 3742.

The decision of the Court of Appeals was entered on December 24, 2024 [App.

A]. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case concerns the constitutionality of 18 U.S.C. § 922(g)(1), which

prohibits felons, both nonviolent and violent, from possessing firearms. The relevant

constitutional and statutory provisions are as follows. The Second Amendment to

the United States Constitution provides: “A well regulated Militia, being necessary

to the security of a free State, the right of the people to keep and bear Arms, shall

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not be infringed.” U.S. Const. amend. II. Title 18 U.S.C. § 922(g)(1) provides: “It

shall be unlawful for any person—(1) who has been convicted in any court of, a

crime punishable by imprisonment for a term exceeding one year; to ship or

transport in interstate or foreign commerce, or possess in or affecting commerce,

any firearm or ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.” 18 U.S.C. §

922(g)(1) (2024). These provisions are central to this case. Petitioner challenges the

constitutionality of § 922(g)(1), as applied to felons, under the Second Amendment

and the interpretive framework established by N.Y. State Rifle & Pistol Ass’n v.

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

This case also challenges whether the Fifth Circuit erred by affirming a

sentencing enhancement under U.S.S.G. § 2A1.2(a)(1) based on judicial fact-finding

beyond the jury’s verdict, in violation of the Fifth and Sixth Amendments and

relying on unproven allegations.

7

STATEMENT OF THE CASE

Zachary Michael Linan appeals his 180-month (the statutory maximum)

sentence for possessing a firearm after having been convicted of a felony. (ROA. 2450141.69-71). Mr. Linan was charged in a one-count indictment, filed on September

7, 2023. Having been convicted of a crime punishable by imprisonment for a term

exceeding one year, he did unlawfully and knowingly possess firearms and

ammunition in violation of Title 18, United States Code, § 922(g)(1) and 924(a)(8).

(ROA. 24-50141.23).

On November 1, 2023, Mr. Linan pleaded guilty to the possession of a firearm

by a convicted felon with a written consent to plea before the Magistrate Judge.

(ROA. 24-50141.36).

Sentencing was held on February 28, 2024. (ROA. 24-50141.123). Mr. Linan

was sentenced to 180 months’ confinement in the BOP, with this term to run

consecutively to any sentence of named pending state charges. (ROA. 24-50141.6971).

Written judgment was entered in on March 7, 2024. (ROA 24-50141.69). Mr.

Linan timely filed a notice of appeal on February 28, 2024. (ROA 24-50141.54). The

Fifth Circuit Court of Appeals decided the case on December 24, 2024. In their

ruling, the Fifth Circuit failed to reach the merits of the case and dismissed Mr.

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Linan’s appeal without weighing the significant constitutional issues demanded by

Bruen.1

Specifically, the Court said, “Because he did not raise these issues in district

court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,

546 (5th Cir. 2012).” Applying the plain-error standard to these introductory

procedural issues was improper both legally and procedurally. More practically, the

Fifth Circuit used this improper procedural application to avoid the deeper

constitutional issues that Bruen demands. The court continued stating, “And, our

court has very recently rejected the contention that § 922(g) is facially

unconstitutional. United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024).” See

United States v. Linan, No. 24-50141 (5th Cir. Dec. 24, 2024). [App. A]. What

follows is this timely petition for a Writ of Certiorari.

1 New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ___ (2022).

9

REASONS FOR GRANTING THE WRIT

I. The Fifth Circuit erred in affirming the district court’s application of

U.S.S.G. § 2A1.2(a)(1) (Second Degree Murder) rather than § 2A2.2

(Aggravated Assault) or § 2K2.1 (Prohibited Possession of Firearms), in a

manner that expands judicial fact-finding at sentencing beyond the jury’s

verdict, in violation of the Fifth and Sixth Amendments, and conflicts with

the principle that sentencing enhancements should not be based on

unproven allegations.

A. Standard of review

Because of the counsel’s objection to the application of the guidelines, the

issues raised herein have been preserved (ROA 24-50141.225). This court reviews a

district court’s legal interpretation and application of the sentencing guidelines de

novo and its factual findings for clear error. United States v. Lowder, 148 F.3d 548,

552 (5th Cir. 1998).

B. The application of USSG § 2A1.2(a)(1) to the instant offense was

inappropriate in this case.

The facts of the case involve a “road rage” incident. Mr. Linan was involved in

an argument which resulted in the discharge of a firearm, though no one was

seriously hurt. Isabella Cuellar (Mr. Linan’s fiancée) reported to law enforcement

that she and Mr. Linan were at the United Grocery Store with her 12-year-old

daughter. While outside the store, Ms. Manriquez spit on Mr. Linan, and he

10

responded to this assault by pursuing her and discharging a firearm. (ROA. 2450141.209).

Defendant agreed to a factual basis that indicated a “shots fired” call had

come in at a United Grocery Store on September 10, 2023, in Odessa, Texas.

Officers found a video from the United Grocery Store that showed Defendant

running after a vehicle and pulling out a handgun. Later, the alleged victim stated

the shot had hit her vehicle. No bullet was recovered from inside the alleged

victim’s vehicle, nor was a ballistics test done. Defendant did not state he had shot

into the vehicle. A shell casing was recovered from the parking lot. (ROA 2450141.199). Law enforcement then went to Defendant’s house and executed a search

warrant wherein three handguns were found, among other items. (ROA 2450141.199-200).

The sentencing judge adopted the PSR and used it as the basis to sentence

Mr. Linan to a top-of-the-guidelines sentence. The PSR, however, was flawed in its

analysis of the law and its application to the facts. Specifically, the PSR application

of USSG § 2A1.2(a)(1) (attempted murder) to the instant offense is inappropriate in

this case. Under these guidelines, Mr. Linan received a base offense level of 33—far

higher than was reasonable—because of this improper application. Consequently,

the sentencing judge sought to maximize Mr. Lian’s sentence, even saying that he

would sentence him to more time if he could.

11

C. The PSR’s use of the Assault with Intent to Commit Murder section was

improper.

In particular, the PSR invoked the Assault with Intent to Commit Murder

section, triggering a higher base offense level and resulting in a guideline range of

108-135 months’ imprisonment for the Defendant. The section on murder should not

apply to Mr. Linan’s case because neither the facts nor the law supports it.

First, USSG § 2A1.2(a)(1) must include first-degree murder. It states, “[t]his

section applies to the offenses of assault with intent to commit murder and

attempted murder. An attempted manslaughter, or assault with intent to commit

manslaughter, is covered under § 2A2.2 (Aggravated Assault). First-degree murder

is defined under 18 U.S.C. § 1111 and requires ‘malice aforethought.’”

D. Mr. Linan’s actions did not rise to the level of malice aforethought.

This section specifically requires “malice aforethought.” However, Mr. Linan’s

actions did not rise to the level of “malice aforethought.” “Malice aforethought” has

a long history going back to the common law. The term generally requires

premedication for murder—or in this case, for attempted murder—to be present.

However, modern interpretations in some jurisdictions allow for so-called implied

malice, rather than the more commonly understood use of the term as express

malice, which requires premeditation and intent.

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E. Mr. Linan’s actions do not closely align with attempted murder under

the sentencing enhancement.

The guidelines regarding attempted murder stipulate that “[t]here are four

elements that must be established to prove attempted murder. . . . They are (1) a

person (2) with the specific intent to commit murder (3) does an act amounting to

more than mere preparation, which (4) tends, but fails to effect the commission of

murder” Weeks v. Collins 867 F. Supp 544, 548 (S.D. Tex. 1994), citing Weeks v.

State, 834 S.W.2d 559, 561 (Tex. App.—Eastland 1992). In Mr. Linan’s case, the

government must establish the presence of all four elements of attempted murder

as set forth in Weeks. See Id. While the first element, identifying the defendant as

the person involved, is clearly met, the remaining elements are not supported by the

evidence. The second element requires the prosecution to prove that the defendant

acted with the specific intent to commit murder. In this case, no direct evidence

demonstrates such intent. The defendant was observed running after a vehicle and

pulling out a handgun, but these actions alone do not conclusively establish an

intent to kill. Moreover, the lack of a recovered bullet from the alleged victim’s

vehicle and the absence of a ballistics test further undermine any assertion of

specific intent to commit murder. Because the hole in the vehicle cannot

conclusively be linked to Mr. Linan’s actions, whether Mr. Linan discharged a

firearm in the aggressors’ direction cannot be established.

13

Mr. Linan insists that he fired the gun away from the perpetrators of the

assault, not at the vehicle. And if Mr. Linan’s assertion is correct, then he merely

discharged a firearm away from the alleged perpetrators of the assault as a warning

to stop further assaults. Mr. Linan asserts that he did so after one of the women

spit on him. Mr. Linan’s family was also with him, namely his fiancée and his

fiancée’s child. While using a firearm as a means of self-defense following a minor

assault and battery like being spit upon is ill-advised, the defendant’s actions and

his mens rea must be understood in the context of protecting himself, his partner,

and a minor child following such circumstances. This imperfect self-defense does not

rise to the level of attempted murder but rather more completely explains his

actions and more closely aligns with aggravated assault.

The third element necessitates an act amounting to more than mere

preparation. The defendant’s behavior could be construed as reckless or as an

attempt to intimidate rather than an attempt to kill. This degree of force was once

again improper and dangerous, but it does not rise to the level of attempted murder.

Finally, the fourth element, which requires an act that tends but fails to

affect the commission of murder, is not substantiated. No bullet was recovered from

inside of the alleged victim’s vehicle. No ballistics test was done. Defendant did not

state he had shot into the vehicle. The recovery of the shell casing from the parking

lot and the discharge of a firearm are both acknowledged. However, if the shell

casing could be recovered by law enforcement with all its expansive resources, why

14

was the bullet not recovered too? (ROA 24-50141.199). As a result, the alleged

victims’ statement that a shot hit their vehicle, without additional corroborating

evidence such as a bullet or ballistics test, fails to demonstrate that the defendant’s

actions were likely to result in murder but merely failed.

Therefore, the facts of this case more appropriately align with aggravated

assault under § 2A2.2 rather than attempted murder under § 2K2.1. The evidence

indicates that the defendant’s actions, while serious, do not rise to the level of

attempted murder, as there is insufficient proof of specific intent and a direct

connection between the defendant’s conduct and a failed attempt to kill.

Consequently, the charge of aggravated assault more accurately reflects the

defendant’s alleged conduct in this incident.

F. The court should have applied § 2A2.2 (Aggravated Assault) or § 2K2.1.

1. Applying § 2A2.2. (Aggravated Assault)

Mr. Linan’s actions are better described as aggravated assault under the

guidelines. His conduct was sudden, occurring within the context of a road-rage

incident. Therefore, the more relevant section to apply would be under 18 US §

1112, “voluntary- upon a sudden.”

Mr. Linan pled to a factual basis in the case that indicated a “shots fired” call

had come in at a United Grocery Store on September 10, 2023, in Odessa, Texas.

Video from the store showed Defendant running after a vehicle and pulling out a

handgun. (ROA 24-50141.199). While the alleged victim later stated the shot had

15

hit her vehicle, no bullet was recovered from inside of the alleged victim’s vehicle,

nor was a ballistics test done. Defendant did not state he had shot into the vehicle.

Despite the application of extensive police resources, only a shell casing was

recovered from the parking lot. (ROA 24-50141.199-200).

Mr. Linan alleges that he fired away from the perpetrators of the assault and

not into the vehicle. He further alleges that he fired away from the perpetrators of

the assault as a warning to stop the driver’s assault on his child. Mr. Linan alleges

that the driver of the vehicle spit on his child. Though the discharging of a firearm

even away from the perpetrators is potentially dangerous and may have been an

unreasonable means to stop the assault on a child, Mr. Linan’s actions are at worst

consistent with aggravated assault under the guidelines.

The Odessa Police, who responded to the scene, charged the Defendant with

“Aggravated Assault with a Deadly Weapon” (ROA 24-50141.207). At the time of the

PSR, this offense was unindicted. The police had the discretion to charge the

Defendant differently but determined that aggravated assault accurately described

the Defendant’s behavior and actions. Additionally, case law demonstrates that in

Texas, aggravated assault can be committed with a different mens rea than

attempted murder:

Under Texas law, though, an aggravated assault occurs when a person

commits an assault, as defined in Tex. Penal Code Ann. § 22.01 (West 2011), and

the assault includes the presence of at least one aggravating factor outlined in Tex.

16

Penal Code Ann. § 22.02. The parties agree that . . . conviction for aggravated

assault was based on the following section of the Texas Penal Code that defines

assault: (a) A person commits an [assault] if the person: (1) intentionally,

knowingly, or recklessly causes bodily injury to another, including the person's

spouse; (2) intentionally or knowingly threatens another with imminent bodily

injury, including the person's spouse; or (3) intentionally or knowingly causes

physical contact with another when the person knows or should reasonably believe

that the other will regard the contact as offensive or provocative.2

Additionally, the presence of only a single bullet casing at the scene strongly

suggests that only one shot was fired (ROA 24-50141.199). This evidence supports

an argument for attempted manslaughter or aggravated assault, rather than

premeditated attempted murder.

Under § 2A2.2 (Aggravated Assault) of the United States Sentencing

Guidelines, the elements that typically qualify an offense for this enhancement are

best described as follows. An assault is generally defined as an intentional and

unlawful attempt to cause physical injury to another person, or an intentional act

that causes another person reasonably to fear imminent physical injury. Because

this assault involved the discharge of a firearm, it arguably became aggravated in

nature. According to the Commentary for U.S.S.G. § 2A2.2, aggravated assault is

2 Tex. Penal Code Ann. § 22.01. Also see, United States v. Torres, 923 F.3d 420, 423 (5th Cir.

2019).

17

defined as “a felonious assault involving any of the following: (A) a dangerous

weapon with intent to cause bodily injury (i.e., not merely to frighten) with that

weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to

strangle or suffocate; or (D) an intent to commit another felony.”

According to Mr. Linan, he discharged a firearm in the context of self-defense

following an assault, with the primary intent of protecting himself, a minor child,

and his fiancée. His actions do not align with the criteria set forth in the definition

of aggravated assault: (A) Mr. Linan’s use of the firearm was not with the intent to

cause bodily injury but rather as an “imperfect self-defense mechanism” to protect

those in immediate danger. (B) There is no evidence to suggest that Mr. Linan

caused serious bodily injury as a result of discharging the firearm. (C) There is no

indication that Mr. Linan engaged in strangling, suffocating, or attempting to

strangle or suffocate anyone. (D) Mr. Linan did not have the intent to commit

another felony; his sole intention was to defend himself and his loved ones from an

immediate threat.

Therefore, Mr. Linan's actions, while not condoned, arguably do not even

meet the criteria for aggravated assault as defined under U.S.S.G. § 2A2.2. Instead,

his conduct is better understood as an instance of imperfect self-defense, which

certainly does not rise to the level of attempted murder.

According to U.S.S.G. § 1B1.1’s Commentary (1)(B), bodily injury is defined

as “any significant injury, e.g., an injury that is painful and obvious or is of the type

18

for which medical attention ordinarily would be sought.” In Mr. Linan’s case, while

a firearm was discharged, there is no evidence to indicate that his actions resulted

in a significant injury meeting this definition. The intent behind discharging the

firearm was not to inflict bodily injury but to protect himself, the minor child, and

his partner following an assault. There is no record of any injury caused by Mr.

Linan’s actions that was painful, obvious, or required medical attention. Given

these circumstances, Mr. Linan’s conduct does not align with the definition of bodily

injury as specified under U.S.S.G. § 1B1.1’s Commentary, further demonstrating

that his actions do not constitute aggravated assault. Instead, they should be

viewed as an instance of imperfect self-defense, falling short of attempted murder.

In conclusion, the actions of Mr. Linan, while not endorsed as the best means of selfdefense, were taken in a moment of fear and immediate danger. They do not meet

the threshold for aggravated assault as defined by U.S.S.G. § 2A2.2 and § 1B1.1.

Therefore, a lesser charge should be considered in light of the circumstances

surrounding his need to defend himself and his loved ones.

The facts do not stipulate in which direction Mr. Linan fired the firearm. Mr.

Linan contends that he fired the firearm away from the perpetrators as a means to

stop further assaults upon him and to prevent possible attacks upon his fiancée and

her minor child. The guidelines for aggravated assault refer to the discharge of a

firearm. However, merely discharging a firearm within our society does not meet

the definition of assault.

19

In the alternative, in the case of Mr. Linan, discharging a firearm at two

women in a car constitutes an intentional act that placed the victims in reasonable

fear of imminent physical injury, meeting the elements of aggravated assault. The

use of a firearm, a deadly weapon, further justifies the application of this

enhancement rather than the attempted murder enhancement.

Consequently, if the § 2A2.2 (aggravated assault) sentencing guidelines were

applied, they would result in a base offense level of 14. Additionally, Subsection (2)

of the same provision increases the offense level by 5 levels if a “firearm was

discharged,” resulting in an offense level of 19. This corresponds to a sentencing

range of 33-41 months under the guidelines.

2. In the alternative the court should have applied § 2K2.1 (Prohibited

Possession, or Transportation of Firearms or Ammunition)

Alternatively, according to Guidelines §2K2.1 on Unlawful Receipt,

Possession, or Transportation of Firearms or Ammunition, which requires

application of the “greatest” base offense level, Mr. Linan requests an alternative

offense calculation as follows. According to subsection (6) of the Guidelines, if the

defendant was a prohibited person at the time of committing the offense, the base

offense level should thus be set at 14.

Next, pursuant to § (b)(1)(A), an additional two levels would be warranted “if

the offense involved three or more firearms.” In this case, during the search of the

Defendant's home, three common firearms were discovered: two Taurus handguns

20

and a Glock 27 .40 caliber gun. Thus, two levels would be warranted because of the

presence of these three common firearms.

Lastly, under § (b)(6)(B), an additional four levels would be warranted. This

provision specifies that if the offender “used or possessed any firearm or

ammunition in connection with another felony offense; or possessed or transferred

any firearm or ammunition with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another felony offense, increase by 4

levels.” As a result, the computation starts with a base offense level of 14, to which

2 levels are added under (b)(1)(A) for the involvement of three firearms. An

additional 4 levels are then warranted under (b)(6)(B), which pertains to using or

possessing firearms in connection with another felony offense. This results in a total

offense level of 20.

Mr. Linan thus contends that the base offense level of 14, plus 2 levels, and

an additional 4 levels, results in an offense level of 20. With a criminal history

category of II, sentencing guidelines provide a range of 37-46 months before

acceptance of responsibility. Given that an offense level of 20 is higher than 19,

Defendant contends that the latter calculation is more suitable for this case.

21

II. U.S.C. § 922(g)(1) is unconstitutional considering Bruen and its

accompanying decisions.

A. Other circuit courts are overturning felon-in-possession bans.

In addition, other circuits have shown a willingness to rule on this issue in a

contrary manner, such as in Range in the Third Circuit.3 These differences in

rulings have created a circuit split which the U.S. Supreme Court will almost

certainly address soon. Just a few days before Range, the Eighth Circuit issued a

contrary ruling upholding the felon-in-possession ban under Bruen.4

The revolution created by Bruen has firmly created an atmosphere striking

down many federal and state laws on firearms issues. The statue under which Mr.

Linan has been convicted, 922(G), is one such statute. Therefore, 922(G) is part of a

class of laws whose constitutionality is actively being questioned across the federal

court system.5

A key point in the case involved the background of Zackey Rahimi, who had a

history of violent behavior, including assaulting his domestic partner and

discharging a firearm in public. This background made him a particularly

unsympathetic defendant and possibly a poor test case for challenging firearm

3 Range v. Att’y Gen., 69 F.4th 96 (3d Cir. 2023). Holding that petitioner, who had one felony

conviction for making a false statement to obtain food stamps, remained among "'the people'

protected by the Second Amendment.”

4 See United States v. Jackson, No. 22-2870 (8th Cir. Aug. 30, 2023).

5 See New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

22

prohibitions under the Second Amendment. His actions clearly demonstrated the

immediate threat to public safety that § 922(g)(8) is designed to mitigate.

A good-faith argument that this ruling does not apply to the felon-inpossession ban under 18 U.S.C. § 922(g)(1) rests on several distinctions. Firstly, the

context and nature of the prohibitions differ significantly. While § 922(g)(8)

addresses the immediate threat posed by individuals under domestic-violence

restraining orders, § 922(g)(1) applies broadly to all felons, regardless of the nature

of their offenses or their current threat level. This broader application does not

directly align with the specific historical practices discussed in Rahimi.

Moreover, the decision in Rahimi was narrowly tailored to address the

specific issue of domestic violence, without broadly redefining Second Amendment

rights or existing firearm prohibitions. The Court’s analysis and the legal

arguments presented were focused on the unique circumstances of domestic

violence, leaving the constitutionality of other firearm regulations, such as the

felon-in-possession ban, for potential future consideration. This suggests that the

ruling should not be interpreted as a blanket invalidation of all firearm restrictions

under the Second Amendment.

Moreover, the decision in Rahimi saw a variety of concurring opinions from

the justices, reflecting differing views on the interpretation of the Second

Amendment and the application of historical traditions to modern regulations. This

divergence in the concurring opinions indicates that the majority view was not

23

entirely unified, making it less clear how broadly this ruling should be applied to

other firearm prohibitions, such as the felon-in-possession ban under 18 U.S.C. §

922(g)(1). The various concurrences suggest that while the Court upheld the specific

statute in question, there may not be a clear consensus on how to approach similar

issues in the future.

Therefore, we thought it prudent to advise the court of these pending matters

that may become relevant during the pendency of Mr. Linan’s appeal. Perhaps this

will also help provide context for the court when assessing the justice of Mr. Linan’s

overall sentence. This is especially true given that Mr. Linan received a top-of-theguidelines sentence.

B. Emerging precedent from the U.S. Supreme Court and the Federal

Courts makes it increasingly likely that the felon-in-possession ban will be

ultimately ruled unconstitutional by the U.S. Supreme Court.

Aside from Rahimi, the U.S. Supreme Court has increasingly struck down or

limited the application of federal firearms laws. Most prominently, the U.S.

Supreme Court just overruled the federal ban on bump stocks.6

The Garland bump-stock ruling underscores the likelihood that the Court

will issue a definitive ruling on the felon-in-possession issue soon. The court has

clearly shown an increasing willingness to address Second Amendment issues

6 Garland v. Cargill, No. 22-976 (June 14, 2024). The court ruled in a 6-3 decision that the

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority by classifying

bump stocks as "machineguns" as defined by the National Firearms Act of 1934 (NFA).

24

directly in recent years. This prospect is heightened by the circuit split discussed

earlier, notably between the Third and Eighth Circuits, regarding the

constitutionality of the felon-in-possession ban. Additionally, numerous lower-court

decisions have diverged on this issue. As this case unfolds, we trust that the Court

will carefully consider the latest precedents from federal courts as this issue evolves

while this case is pending. We trust as always; the court will consider providing

further guidance on this issue as it deems justice requires.

C. Applying the Bruen test as interpreted by Rahimi to the felon-inpossession ban likely requires overturning the ban.

The test under Bruen is still text, history, and tradition. However, Rahimi

gave some additional commentary on how the Supreme Court wishes this statute to

be applied when challenging a federal firearms law. Specifically, the Supreme

Court’s ruling in Rahimi upheld the constitutionality of 18 U.S.C. § 922(g)(8), which

prohibits individuals subject to domestic violence restraining orders from possessing

firearms. However, this decision specifically focused on the unique public-safety

risks and the historical context associated with domestic violence. The Court

emphasized the historical precedent of disarming individuals deemed dangerous,

finding that this aligns with the regulatory intent of § 922(g)(8) to protect domestic-

25

violence victims from further harm. However, just as in Bruen, the court

emphasized that a historical analogue must be found to uphold such a statute.7

Specifically, the court in Rahimi said,

Under our precedent, the appropriate analysis involves considering

whether the challenged regulation is consistent with the principles

that underpin the Nation's regulatory tradition. Bruen, 597 U.S., at 2631. When firearm regulation is challenged under the Second

Amendment, the Government must show that the restriction "is

consistent with the Nation's historical tradition of firearm regulation."

Bruen, 597 U.S., at 24. A court must ascertain whether the new law is

"relevantly similar" to laws that our tradition is understood to permit,

"apply[ing] faithfully the balance struck by the founding generation to

modern circumstances." Id., at 29, and n. 7. Why and how the

regulation burdens the right are central to this inquiry. As Bruen

explained, a challenged regulation that does not precisely match its

historical precursors "still may be analogous enough to pass

constitutional muster." Id., at 30. Pp. 5-8.7.8

Here the court reaffirmed the Bruen Test, although in this case the court did

not find that the test was violated. However, the court outlines the framework of

how the Bruen test should be applied post-Rahimi. First, it acknowledges the

tradition in which Second Amendment rights are protected, reaffirming once again

that these rights are fundamental rights:

We have held that the right to keep and bear arms is among the

“fundamental rights necessary to our system of ordered liberty.”

McDonald v. Chicago, 561 U.S. 742, 778 (2010). Derived from English

practice and codified in the Second Amendment, the right secures for

Americans a means of self-defense. Bruen, 597 U.S., at 17. The spark

that ignited the American Revolution was struck at Lexington and

Concord, when the British governor dispatched soldiers to seize the

local farmers’ arms and powder stores. In the aftermath of the Civil

7 Bruen, 142 S. Ct. at 2111.

8 Rahimi, 602 U.S. ___ (2024) at *11.

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War, Congress's desire to enable the newly freed slaves to defend

themselves against former Confederates helped inspire the passage of

the Fourteenth Amendment, which secured the right to bear arms

against interference by the States. McDonald, 561 U.S., at 771776. As

a leading and early proponent of emancipation observed, “Disarm a

community and you rob them of the means of defending life. Take

away their weapons of defense and you take away the inalienable right

of defending liberty.” Cong. Globe, 0th Cong., 2d Sess., 1967 (1868)

(statement of Rep. Stevens).9

Therefore, the Court still considers the right to bear arms to be one of the

most sacred of rights, and it recognizes the historical tradition that the Founders

understood, namely that disarming Americans was the catalyst of the American

revolution. Therefore, the deprivation for life of one’s right to bear arms is

presumably completely antithetical to the historical tradition understood by the

Founders and even by subsequent generations following the Civil War.

As affirmed in the Bruen test and elaborated in Rahimi, thorough historical

scrutiny is paramount in evaluating the constitutionality of firearm regulations.

The Bruen test underscores that regulations must align with historical practices

and be tailored to address specific, identifiable threats to public safety. Rahimi

further emphasizes that while contemporary laws need not mirror historical

regulations exactly, they must demonstrate a clear and necessary connection to

historical precedents. Mr. Linan contends that a more exhaustive historical analysis

is indispensable to assess fully whether the felon-in-possession ban meets the

rigorous standards set forth by the Bruen test and affirmed in Rahimi.

9 Rahimi, 602 U.S. ___ (2024) at *9-10.

27

Moreover, Mr. Linan argues that a total ban on firearm possession by all

felons, such as the one imposed by the modern felon-in-possession ban, did not exist

at the time of the founding and would have been considered antithetical to the

beliefs of the Founders regarding individual rights and liberties. The Founders

intended to restrict firearm access only for those who pose immediate threats to

public safety, such as those engaged in violent acts or insurrections, rather than

imposing a broad, indiscriminate ban on all individuals with prior felony

convictions. This discrepancy highlights the divergence between historical practices

and the sweeping scope of the contemporary felon-in-possession ban, reinforcing Mr.

Linan’s argument that such a regulation exceeds permissible limits under the

Second Amendment as outlined in the Bruen test and Rahimi.

III. The Government fails to establish the existence of a founding-era

historical analogue as required by Bruen.

Bruen explicitly uses the text, history, and tradition test as its metric to

determine if a firearms law is constitutional. Consequently, the bulk of our brief

will use that test and discuss why historically analogous laws did not exist during

the founding period. Also, throughout American history, the laws disarming persons

often relied on racist and prejudiced undertones that on their face and by their

application would be unconstitutional today. A recent article from the Harvard Law

Review summarizes this point best: “Many, perhaps most, gun laws enacted

between 1789 and 1940 were influenced at least in part by racism. The concealed

28

carry law at issue in NYSRPA [Bruen] traces back to the Sullivan Law, which was

at least partially influenced by anti-immigrant sentiment.”10

That said, historically the roots of the federal felon-in-possession ban

can be found only in the twentieth century. The federal felon-in-possession ban was

passed as part of the Federal Firearms Act of 1938.11 At that time, 922(g)(1)

prohibited only violent felons, which the First Circuit addressed in 2011.

As Greenlee states,

The federal felon ban codified in § 922(g)(1) (1938) itself was originally

intended to keep firearms out of the hands of violent persons.12 As the

First Circuit explained in 2011, the current federal felony firearm ban

differs considerably from the version of the proscription in force just

half a century ago. Enacted in its earliest incarnation as the Federal

Firearms Act of 1938, the law initially covered those convicted of a

limited set of violent crimes such as murder, rape, kidnapping, and

burglary, but extended to both felons and misdemeanants convicted of

qualifying offenses. . . . The law was expanded to encompass all

individuals convicted of a felony . . . several decades later, in 1961.13

It was not until the Gun Control Act of 1968 was passed in the panic of the

assassination of President Kennedy, Senator Kennedy, and Dr. Martin Luther King

that Congress further overstepped their constitutional authority and included

10 Adam Winkler, Racist Gun Laws and the Second Amendment, 135 Harv. L. Rev. F. 537,

See generally Amici Curiae Brief of Italo-American Jurists and Attorneys in Support of Petitioners,

NYSRPA, No. 20-843 (July 15, 2021)

11 52 Stat. 1250, the Federal Firearms Act of 1938.

12 Greenlee, Joseph, The Historical Justification for Prohibiting Dangerous Persons from

Possessing Arms from Possessing Arms, Wyoming Law Review Vol. 20 Num. 9, Art. 7, 2020, Citing

See Federal Firearms Act, Ch. 850, §§ 1(6), 2(f), 52 Stat. 1250, 1250–51 (1938).

13 Id., United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011) (citing Federal Firearms Act,

Ch. 850, §§ 1(6), 2(f), 52 Stat. 1250,52 Stat. at 1250–51 (1938); An Act to Strengthen the Federal

Firearms Act, Pub.L. No. 87–342, § 2, 75 Stat. 757, 757 (1961) (some citations omitted)).

29

nonviolent felons. Even worse, it also made possession of a firearm or ammunition a

crime for anyone who had been convicted of a crime punishable by imprisonment for

more than one year. The key word here is punishable, meaning that a party

convicted does not actually have to be sentenced to over a year of incarceration.

Furthermore, this prohibition includes all handguns, shotguns, and even smallcaliber firearms like .22 rifles, all of which are in common use.14

Furthermore, for federal crimes, only a pardon from the president can restore

one’s right to possess firearms. In 1992, Congress prohibited the government from

spending money to review a felon’s application to restore gun rights. The pre-Bruen

Supreme Court in 2002 upheld this on procedural grounds in Bean stating that “no

action” does not equal a denial. Specifically, Justice Thomas writing for the majority

said, “mere inaction by ATF does not invest a district court with independent

jurisdiction to act on an application” Therefore this ruling essentially established

that a citizen had no right to force the government to review their application if

Congress did not want to fund it. See United States v. Bean, 537 U.S. at 76, (2002).

However, in a post-Bruen world, while the procedural issue on rights restoration

has previously been settled by this Court in Bean, the issue of whether U.S.C. §

922(g)(1) comports with the Bruen test has not.

14 18 U.S.C. Ch. 44 § 921.

30

For state crimes, restoring one’s firearms rights may be possible in extremely

narrow circumstances and only on a state-by-state basis. But to restore one’s right

to possess a firearm at the federal level for a state crime, a party must have his

conviction set aside or expunged, for which the person has been pardoned or has

had their civil rights restored.

In reality, this process is extremely difficult for a state-level crime and very

few individuals are allowed to utilize it. For a federal crime, the president of the

United States must pardon, but presidential pardons are extremely rare events. To

suppress a fundamental right like the right bear arms behind them is

unconstitutional on its face.

The same is true of servicemen convicted under the Uniform Code of Military

Justice of crimes equivalent to federal felonies. Those too are considered federal

crimes, subjecting these servicemen to the revocation of their Second Amendment

rights. These armed-service members do not have a mechanism, short of a

presidential pardon, to restore their gun rights. Tragically, those who pledged their

lives for our republic have no mechanism by which to restore their rights.

IV. The founding era’s restoration of rights

It is even more tragic because the Founding Era did provide for a restoration

of rights in a much more liberal and free manner both at the state and the federal

level. While the Founding Era punished many serious crimes with the death

31

penalty, they were progressive enough to establish mechanism for free men to

restore their firearms rights.

Many crimes during this period were punished by death. Therefore, the issue

of rights restoration was a moot point: “Persons who may have been prohibited from

keeping arms in the founding era were often punished by death.”15

However, there were crimes that did not carry the death penalty. For these

crimes, “[m]any who committed firearms offenses were not disarmed at all, but

instead had to pay a surety to ensure good behavior.”16

For example,

Connecticut’s 1775 law disarmed “inimical” persons only “until such

time as he could prove his friendliness to the liberal cause.”17

Massachusetts’s 1776 law disarming disaffected persons provided that

“persons who may have been heretofore disarmed by any of the

committees of correspondence, inspection or safety” may “receive their

arms again . . . by the order of such committee or the general court.”18

Many disarmament acts provided exemptions for prohibited persons

who swore loyalty to the king.19 And when Anne Hutchinson’s

supporters were being disarmed in the Bay Colony, some who sought

forgiveness from the Colony were welcomed back into the community

15 Greenlee at 268 Citing, Baze v. Rees, 553 U.S. 35, 94 (2008) (noting “the ubiquity of the

death penalty in the founding era” and that it was “the standard penalty for all serious crimes”)

(Thomas, J., concurring)

(Quoting Stuart B Anner, the Death Penalty: An American History 23 (2002)).

16 Greenlee at 268, For example, in 1759, New Hampshire persons “who shall go armed

offensively” were not released “until he or she find such surities of the peace and good behavior.” Acts

and Laws of His Majesty’s Province of New-Hampshire in New England 2 (1759). For an example of

how this process worked, see Welling’s Case, 47 Va. 670, 670 (Va. Gen. Ct. 1849)

17 Greenlee at 268 Citing, Gilbert, supra note 92, at 282.

18 Mass. Gen. Laws 484 (1776).

19 Greenlee at 268 Citing, See, e.g., 52 Archives of Maryland, supra note 87, at 451–52; 7

Hening, supra note 87, at 36; the Acts of the General Assembly of the Commonwealth of

Pennsylvania, supra note 103, at 193.

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and could once again possess arms. So, once the perceived danger

abated, the arms disability was often lifted. 20

After the Revolution but just prior to the ratification of the Bill of Rights,

Shays’s Rebellion served as testbed for the American experiment’s success.

However, it also served a test on the restoration of the liberty of those involved in it.

The young republic wisely exercised grace when responding to those involved, as did

the Founding Fathers when restoring the firearms rights of those involved:

Armed bands attacked courthouses, the federal arsenal in Springfield,

and other government properties, ultimately resulting in a military

confrontation with a Massachusetts militia on February 2, 1787. As

the rebellion ceased later that year, Massachusetts established “the

disqualifications to which persons shall be subjected, who have been,

or may be guilty of treason, or giving aid or support to the present

rebellion, and to whom a pardon may be extended.”21 Among these

disqualifications were the temporary forfeiture of many civil rights,

including a three-year prohibition on bearing arms.22

Thus, those involved in an armed insurrection against the United States at

the time of the founding were prohibited from possessing arms for only three years.

Today, there are men who are prohibited for life without option other than a

presidential pardon, and very few of them committed crimes half as serious as

treason.

20 Greenlee at 268 citing, See Johnson, supra note 84, at 175.

21 1 Private and Special Statutes of the Commonwealth of Massachusetts from

1780–1805, 145 (1805).

22 Greenlee at 268-269 Citing, id. at 146– 47.

33

Greenlee, an established legal historian, confirms the stark contrast between

today and the American Revolutionary period, namely that the revocation and

restoration of firearms rights was far more protected than it is today:

The contrast between Shays’s rebels and present-day felons can be

stark. For example, in West Virginia, someone who shoplifts three

times in seven years, “regardless of the value of the merchandise,” is

forever prohibited from possessing a firearm.23 In Utah, someone who

twice operates a recording device in a movie theater is forever

prohibited from possessing a firearm.24 And in Florida, a man

committed a felony when he released a dozen heart-shaped balloons in

a romantic gesture and thus earned a lifetime firearm prohibition.25 It

is inconsistent with history for many nonviolent present-day felons—

someone who shoplifts three packs of bubble gum in West Virginia—to

receive a lifetime firearm prohibition, when prohibited persons in the

founding era—including armed insurrectionists—regained their rights

once they no longer posed a violent threat.26

One must conclude then that the text, history, and tradition under the Bruen

test is in direct contrast to today’s firearms revoking legislation and the oppressive

and often near impossible restoration process. As a result, U.S.C. § 922(g)(1) and

laws like it are not in keeping with the text, history, and tradition of the law as it

existed at the founding of our nation. Thus, it must be set aside by this Court.

23 Greenlee at 269 Citing, See W. VA. Code § 61-3A-3(c) (2020).

24 Greenlee at 269 Citing, See Utah Code Ann. § 13-10b-201(2)(b) (West 2020).

25 Greenlee at 269 Citing, Erika Pesantes, Love Hurts: Man Arrested for Releasing Helium

Balloon with His Girlfriend, Sun Sentinel (Feb. 22, 2013), www.sun-sentinel.com/news/fl-xpm-201302-22-fl-helium-balloonenvironmental-crime-20130222-story.html [https://perma.cc/2P9W-JTLU]. The felony

examples were provided in United States v. Torres, 789 F. App’x 655, 658 n.2 (9th Cir. 2020) (Lee, J.,

concurring).

26 Greenlee at 269, Citing See W. VA. Code Ann. § 61-3A-3(c).

34

V. Post-Civil War Jim Crow-era laws sought to disarm classes of persons

based on race.

In the aftermath of the Civil War, the Fourteenth Amendment was

understood to guarantee all citizens regardless of race equal protection and

treatment under the law. As a result, restrictions based on race were slowly

removed from the law. That said, the laws were rewritten by the former

confederates and former slave masters specifically to target blacks and to deny

them the right to bear arms. The African American Gun Association describes it

well below:

The Fourteenth Amendment did away with actually naming African

Americans in laws prohibiting the right to bear arms. Instead, in the

Jim Crow era facially-neutral laws imposed prohibitive fees and

restrictions on the poor and were selectively enforced in ways to deny

the right of black citizens to possess and carry arms.27

In their summary of the Jim Crow Era, they set the stage by giving the

following account:

In 1892, Ida B. Wells wrote that a “Winchester rifle should have a

place of honor in every black home, and it should be used for that

protection which the law refuses to give.” Ida B. Wells, Southern

Horrors: Lynch Law in All its Phases 16 (1892). She had in mind

recent events in Jacksonville, Florida, and Paducah, Kentucky, where

well-armed blacks had thwarted lynch mobs.28

27 Bruen, 597 U.S., Amicus Brief of African American Gun Association Inc. at 27 2022.

28 Bruen, 597 U.S., Amicus Brief of African American Gun Association Inc. at 27 2002, citing

Margaret Vandiver, Lethal Punishment: Lynchings & Legal Executions in the South 179 (New

Brunswick, N.J.: Rutgers University Press, 2006); George C. Wright, Racial Violence in Kentucky

1865-1940: Lynchings, Mob Rule & “Legal Lynchings” 169-170 (Baton Rouge: LSU Press, 1990).

35

The courts of the early twentieth century recognized the racist roots of this

statute too:

This law “was passed when there was a great influx of negro laborers

in this State,” and it was “for the purpose of disarming the negro

laborers . . . . The statute was never intended to be applied to the white

population . . . .” Watson v. Stone, 148 Fla. 516, 524, 4 So. 2d 700

(1941).29

To disarm felons as a class with the threat of extended incarceration is

potentially to disarm all Americans. Ignorance of the law is no excuse. In essence,

anyone can be charged and convicted of a felony because the law is without end.

Nothing is more dangerous to the ordered liberty found within our republic than to

allow 922(g)(1) as it is written to stand.

CONCLUSION

This case presents an opportunity for this Court to resolve a circuit split on

18 U.S.C. § 922(g)(1) in light of Bruen, ensuring that nonviolent felons are not

categorically disarmed without historical justification. Additionally, the Court

should address improper judicial fact-finding at sentencing, as the district court

erroneously applied U.S.S.G. § 2A1.2(a)(1) (Second Degree Murder) instead of §

2A2.2 (Aggravated Assault) or § 2K2.1 (Prohibited Possession of Firearms),

resulting in an excessive sentence. FOR THESE REASONS, Petitioner Zachary

Michael Linan requests of this Court that his Petition for Writ of Certiorari be

GRANTED.

29 Bruen, 597 U.S., Amicus Brief of African American Gun Association Inc. at 28 2022.

36

Respectfully submitted,

By: /s/ Joseph Ostini

Joseph Ostini

Counsel of Record for Mr. Linan

30 Clayburne Blvd.

Chillicothe, Ohio 45601

(888) 529-9242

37