Petition for Writ of Certiorari — Jessie Dejuan Sullivan, Petitioner v. United States
Supreme Court briefAug 12, 2025
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No. ______________
In the
Supreme Court of the United States
___________
Jessie Dejuan Sullivan,
Petitioner,
v.
United States of America,
Respondent.
___________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
___________
Loui Itoh
Assistant Federal Public Defender
Northern District of Texas
PO Box 17743
819 Taylor Street Room 9A10
Fort Worth, Texas 76102
(817) 978-2753
Loui_Itoh@fd.org
Attorney for Petitioner
QUESTIONS PRESENTED
First, whether 18 U.S.C. § 922(g)(1) facially violates the Second Amendment?
Second, some sentencing judges assert that they would have selected the exact
same sentence regardless of any error in applying the Sentencing Guidelines. Should
an appellate court accept those assertions at face value?
i
PARTIES TO THE PROCEEDING
Petitioner is Jessie Dejuan Sullivan, who was the Defendant-Appellant in the
court below. Respondent, the United States of America, was the Plaintiff-Appellee in
the court below.
RELATED PROCEEDINGS
•
United States v. Sullivan, 4:22-CR-080-P, U.S. District Court for the
Northern District of Texas. Judgment entered on August 30, 2024.
•
United States v. Sullivan, No. 24-10799, U.S. Court of Appeals for the Fifth
Circuit. Judgment entered on May 14, 2025.
ii
TABLE OF CONTENTS
Questions Presented .................................................................................................... i
Parties To The Proceeding.......................................................................................... ii
Related Proceedings.................................................................................................... ii
Table Of Contents ...................................................................................................... iii
Index To Appendices ...................................................................................................iv
Petition For A Writ Of Certiorari................................................................................1
Opinions Below ............................................................................................................1
Jurisdiction ..................................................................................................................1
Relevant Constitutional And Statutory Provisions....................................................2
Statement Of The Case ...............................................................................................3
Reasons For Granting The Petition ............................................................................7
I.
This Court Should Decide The Constitutionality Of 18 U.S.C. § 922(G)(1)
Under The Second Amendment.......................................................................7
II.
The Court Of Appeals Are Divided On The Level Of Deference To Grant
District Courts That Disclaim The Impact Of The Guidelines On The
Sentence Chosen, Undermining The Congressional Goal Of Uniformity In
Sentencing. ......................................................................................................19
Conclusion ..................................................................................................................31
iii
INDEX TO APPENDICES
Appendix A Judgment and Opinion of Fifth Circuit
Appendix B Judgment and Sentence of the United States District Court for the
Northern District of Texas
iv
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Borden v. United States,
593 U.S. 420 (2021) ................................................................................................ 29
Braxton v. United States,
500 U.S. 344 (1991) ................................................................................................ 24
District of Columbia v. Heller,
554 U.S. 570 (2008) .................................................................................................. 8
Gall v. United States,
552 U.S. 38 (2007) ................................................................................ 19, 20, 25, 27
Henderson v. United States,
568 U.S. 266 (2013) ................................................................................................ 30
Hollis v. Lynch,
827 F.3d 436 (5th Cir. 2016) .................................................................................... 8
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ................................................................................. 11
McDonald v. City of Chicago,
561 U.S. 742 (2010) .................................................................................................. 8
Molina-Martinez v. United States,
578 U.S. 189 (2016) .................................................................. 19, 20, 23, 24, 26, 27
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 700 F.3d 185 (5th Cir. 2012) ........................................................... 8, 13
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022) .......................................................6, 7, 8, 9, 10, 11, 12, 13, 15, 16
Peugh v. United States,
569 U.S. 530 (2013) .................................................................................... 20, 23, 27
Pitsilides v. Barr,
128 F.4th 203 (3d Cir. 2025) .................................................................................. 18
Range v. Att’y Gen. U.S.,
124 F.4th 218 (3d Cir. 2024) .................................................................................. 18
v
Rita v. United States,
551 U.S. 338 (2007) .......................................................................................... 20, 24
Stutson v. United States,
516 U.S. 163 (1996) ......................................................................................... 19, 30
United States v. Betancourt,
139 F.4th 480 (5th Cir. 2025) ................................................................................. 17
United States v. Booker,
543 U.S. 220 (2005) .......................................................................................... 19, 24
United States v. Connelly,
117 F.4th 269 (5th Cir. 2024) ........................................................................... 10, 15
United States v. Darrington,
351 F.3d 632 (5th Cir. 2003) .................................................................................... 9
United States v. Davis,
583 F.3d 1081 (8th Cir. 2009) ................................................................................ 20
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024) .............................. 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17
United States v. Duarte,
137 F.4th 743 (9th Cir. 2025) ........................................................................... 16, 18
United States v. Dubois,
94 F.4th 1284 (11th Cir. 2024), cert. granted, judgment vacated, ––
U.S. ––, 145 S.Ct. 1041 (2025) ............................................................................... 16
United States v. Emerson,
270 F.3d 203 (5th Cir. 2001) .................................................................................... 9
United States v. Feldman,
647 F.3d 450 (2d Cir. 2011) .................................................................................... 21
United States v. Gieswein,
887 F.3d 1054 (10th Cir. 2018) .............................................................................. 22
United States v. Gomez-Jimenez,
750 F.3d 370 (4th Cir. 2014) .................................................................................. 25
United States v. Grady,
18 F.4th 1275 (11th Cir. 2021) ............................................................................... 21
vi
United States v. Guzman-Rendon,
864 F.3d 409 (5th Cir. 2017) .................................................................................. 23
United States v. Henry,
1 F.4th 1315 (11th Cir. 2021) ................................................................................. 21
United States v. Hill,
63 F.4th 335 (5th Cir. 2023) ................................................................................... 29
United States v. Hunt,
123 F.4th 697 (4th Cir. 2024) ................................................................................. 16
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024) ............................................................................... 16
United States v. Keene,
470 F.3d 1347 (11th Cir. 2006) .............................................................................. 21
United States v. Martinez-Romero,
817 F.3d 917 (5th Cir. 2016) .................................................................................. 23
United States v. McGinnis,
956 F.3d 747 (5th Cir. 2020) .................................................................................... 8
United States v. Medel-Guadalupe,
987 F.3d 424 (5th Cir. 2021) .................................................................................. 23
United States v. Munoz-Camarena,
631 F.3d 1028 (9th Cir. 2011) ................................................................................ 22
United States v. Pena-Hermosillo,
522 F.3d 1108 (10th Cir. 2008) .............................................................................. 22
United States v. Peterson,
887 F.3d 343 (8th Cir. 2018) .................................................................................. 20
United States v. Rahimi,
602 U.S. 680 (2024) ............................................... 7, 9, 10, 11, 12, 13, 14, 15, 16, 18
United States v. Redmond,
965 F.3d 416 (5th Cir. 2020) .................................................................................. 23
United States v. Reyna-Aragon,
992 F.3d 381 (5th Cir. 2021) .................................................................................. 23
United States v. Ritchey,
117 F.4th 762 (5th Cir. 2024) ................................................................................. 22
vii
United States v. Schnur,
132 F.4th 863 (5th Cir. 2025) ................................................................................. 17
United States v. Seabrook,
968 F.3d 224 (2d Cir. 2020) .................................................................................... 21
United States v. Sullivan,
No. 4:22-CR-80-1 (N.D. Tex. Aug. 30, 2024) ............................................................ 1
United States v. Tanksley,
848 F.3d 347 (5th Cir. 2017) .................................................................................. 22
United States v. Vega-Garcia,
893 F.3d 326 (5th Cir. 2018) .................................................................................. 23
United States v. Wickware,
143 F.4th 670, 2025 WL 2048446 (5th Cir. Jul. 22, 2025) .............................. 28, 30
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ........................................................................... 17, 18
United States v. Williams,
431 F.3d 767 (11th Cir. 2005) .......................................................................... 24, 25
United States v. Williams,
5 F.4th 973 (9th Cir. 2021) ..................................................................................... 22
United States v. Wright,
642 F.3d 148 (3d Cir. 2011) .................................................................................... 22
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025) ............................................................................. 16
State Cases
Craver v. State,
No. 02-14-00076-CR, 2015 WL 3918057 (Tex. App. June 25, 2015)..................... 29
Federal Statutes
18 U.S.C. § 922(g)(1) ................................... 2, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19
18 U.S.C. § 922(g)(8) .............................................................................. 9, 12, 14, 15, 16
18 U.S.C. § 922(g)(8)(C)(i)...................................................................................... 11, 15
18 U.S.C. § 924(c)(3)(A) ............................................................................................... 29
viii
18 U.S.C. § 1951(b)(1) ........................................................................................ 5, 28, 29
18 U.S.C. § 3553 ............................................................................................................. 4
18 U.S.C. § 3553(a) ...................................................................................................... 22
18 U.S.C. § 3553(a)(2) .............................................................................................. 6, 26
28 U.S.C. § 1254(1) ........................................................................................................ 1
An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87–342, §
2, 75 Stat. 757, 757 (1961)...................................................................................... 11
Federal Firearms Act, Chapter 850, §§ 1(6), 2(f), 52 Stat. 1250, 1250–
51 (1938) ................................................................................................................. 11
S. Rep. No. 225, 98th Cong., 2d Sess. 151 (1984), reprinted in 1984
U.S.C.C.A.N. 3182 .................................................................................................. 24
Guidelines
U.S.S.G. Chapter 5, pt. A ............................................................................................ 26
U.S.S.G. § 1B1.11(a) ...................................................................................................... 4
U.S.S.G. § 2K1.1(a)(4)(A) ............................................................................................... 3
U.S.S.G. § 2K2.1(a)(6)(A) ............................................................................................. 26
U.S.S.G. § 4B1.2........................................................................................................... 28
U.S.S.G. § 4B1.2(a)(2) .................................................................................................. 28
U.S.S.G. § 4B1.2(e)(3) ............................................................................................ 28, 29
Rules
Federal Rule of Criminal Procedure 52(a) .................................................................... 2
Constitutional Provisions
U.S. Const. amend. II ..................................................................2,7, 8, 9, 11, 16, 18, 19
Related Certiorari Petitions
Johnson v. United States,
No. 24-7347 (U.S. May 30, 2025) ........................................................................... 19
ix
Mason v. United States,
No. 24-7286 (U.S. May 20, 2025) ........................................................................... 19
Matlock v. United States,
No. 24-7398 (U.S. Jun. 11, 2025) ........................................................................... 19
United States v. Medrano,
24-7508 (U.S. Jun. 26, 2025) .................................................................................. 30
Related Briefing
United States v. Sullivan,
No. 24-10799, 2025 WL 1392087 (5th Cir. May 14, 2025) ............................ 1, 6, 26
United States v. Sullivan,
No. 24-10799, 2025 WL 475749 (5th Cir. Filed Feb. 3, 2025)............. 4, 5, 6, 26, 30
United States v. Sullivan,
No. 24-10799, 2025 WL 994080 (5th Cir. Filed Mar. 24, 2025) .................. 5, 26, 30
Other Authorities
Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1563 & n. 67
(2009) ...................................................................................................................... 11
Joseph G.S. Greenlee, The Historical Justification for Prohibiting
Dangerous Persons from Possessing Arms, 20 WYO. L. REV. 249,
261–65 (2020).......................................................................................................... 10
Robert H. Churchill, Gun Regulation, the Police Power, and the Right
to Keep Arms in Early America, 25 LAW & HIST. REV. 139, 156–61
(2007) ...................................................................................................................... 10
x
PETITION FOR A WRIT OF CERTIORARI
Petitioner Jessie Dejuan Sullivan seeks a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The Fifth Circuit’s unpublished opinion is available at United States v.
Sullivan, No. 24-10799, 2025 WL 1392087 (5th Cir. May 14, 2025). It is reprinted in
Appendix A. The district court’s judgment and sentence in United States v. Sullivan,
No. 4:22-CR-80-P (N.D. Tex. Aug. 30, 2024), is reprinted in Appendix B.
JURISDICTION
The Fifth Circuit entered judgment on May 14, 2025. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Second Amendment to the U.S. 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 not be infringed.
U.S. Const. amend. II.
Section 922(g)(1) of Title 18 reads in relevant part:
(g) 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).
Federal Rule of Criminal Procedure 52(a) provides:
(a) Harmless Error. Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.
2
STATEMENT OF THE CASE
A.
Facts and Proceedings in District Court
The government obtained an indictment against Petitioner Jessie Dejuan
Sullivan, alleging that he possessed a firearm following a felony conviction. Record in
the Court of Appeals 20-22. Subsequently, Mr. Sullivan pleaded guilty to the
indictment without a plea agreement. Record in the Court of Appeals 161.
On July 28, 2022, Mr. Sullivan failed to appear for his sentencing, and the
court issued a bench warrant. Record in the Court of Appeals 197. He was arrested
on the federal warrant on July 14, 2024. Record in the Court of Appeals 197. Mr.
Sullivan was sentenced on August 30, 2024. Record in the Court of Appeals 7.
At sentencing, the district court adopted the guideline calculations in the Third
Addendum to the Presentence Report (PSR). Record in the Court of Appeals 143-44.
That document applied a base offense level of 20 based on a determination that Mr.
Sullivan’s prior conviction for Texas Robbery Causing Bodily Injury was a crime of
violence under the Guidelines. Record in the Court of Appeals 197 (citing U.S.S.G. §
2K1.1(a)(4)(A)). It arrived at a Total Offense Level of 24, after adding a two-level
stolen firearm enhancement, a two-level adjustment for obstruction of justice, and no
adjustments for acceptance of responsibility. Record in the Court of Appeals 197-98.
The Third Addendum also noted that:
The offense of conviction concluded on September 29, 2021. The
probation officer reviewed and compared the Guidelines Manual in
effect on the date the defendant is to be sentenced and the Guidelines
Manual in effect on the date the offense of conviction concluded. Based
on this review, this officer determined the use of the Guidelines Manual
in effect on the date the defendant is to be sentenced will not violate the
3
ex post facto clause of the U.S. Constitution. Therefore, the November 1,
2021, Guidelines Manual was used to determine the defendant’s offense
level. USSG §1B1.11(a).
Record in the Court of Appeals 197.
The final guidelines calculation was as follows: Total Offense Level 24,
Criminal History Category II, for a Guideline Imprisonment Range of 57 to 71
months. Record in the Court of Appeals 145.
The district court sentenced Mr. Sullivan to 65 months of imprisonment, a
three year term of supervised release, and a $100 special assessment. Record in the
Court of Appeals 149-51.
After stating the sentence, the district court said:
And I did feel that a sentence of 65 months with a three-year term of
supervised release was sufficient, but not greater than necessary, to
comply with all of those purposes pointed out in paragraph (2) of 3553(a).
And given the unique facts and circumstances of this case, Mr. Sullivan,
and your absconding, this would have been the same sentence I would
have given you even if we didn’t have the guidelines.
Record in the Court of Appeals 151. It reiterated this sentiment in its statement of
reasons. Record in the Court of Appeals 207 (“Even if the guidelines calculations are
not correct, this is the sentence the Court would otherwise impose under 18 U.S.C. §
3553.”).
B.
Appellate Proceedings
On appeal, Mr. Sullivan raised, inter alia, three claims. First, he argued that
the district court plainly erred because it concluded that Mr. Sullivan had been
convicted of a crime of violence based on his Texas conviction for robbery causing
bodily injury. Initial Brief in United States v. Sullivan, No. 24-10799, 2025 WL
4
475749 at *8 (5th Cir. Filed Feb. 3, 2025) (“Initial Brief.”). Acknowledging that Fifth
Circuit precedent had held the same, he pointed out that those cases were decided
prior to November 1, 2023, when Sentencing Guidelines Amendment 822 was
promulgated. Initial Brief at *8. That amendment makes clear that U.S.S.G. § 4B1.2’s
enumerated offense of “robbery” requires a causal nexus between the taking and force
elements of the offense. Initial Brief at *8. Texas robbery causing bodily injury lacks
such a nexus. Initial Brief at *8. In addition, the new Guidelines definition of
“robbery” incorporates the definition of Hobbs Act robbery, in which the “unlawful
taking” must be accomplished “by means of actual or threatened force, or violence, or
fear of injury.” Initial Brief at **15-16 (citing 18 U.S.C. § 1951(b)(1)). The current
definition, like that in the Hobbs Act, requires intentional conduct. Initial Brief at
**15-16; Reply Brief in United States v. Sullivan, No. 24-10799, 2025 WL 994080 at
*2 (5th Cir. Filed Mar. 24, 2025) (“Reply Brief.”) And even the Department of Justice
agreed with Mr. Sullivan that Texas robbery, which can be committed recklessly, does
not fall within the Guidelines’ definition. See Initial Brief at **19-21; Reply Brief at
*2, **13-14.
Next, he claimed that the district court plainly erred by applying the 2021
Sentencing Guidelines Manual, rather than the 2023 Sentencing Guidelines Manul
which was in effect when Mr. Sullivan was sentenced on August 30, 2024. Initial Brief
at *8.
5
Finally, Mr. Sullivan argued that his conviction was unconstitutional in light
of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Initial Brief
at **8-9.
The Fifth Circuit affirmed in an unpublished opinion. United States v.
Sullivan, No. 24-10799, 2025 WL 1392087 (5th Cir. May 14, 2025) [Appendix A]. It
held that Mr. Sullivan’s facial challenge is foreclosed by United States v. Diaz, 116
F.4th 458 (5th Cir. 2024). See Sullivan, No. 24-10799, 2025 WL 1392087 at *1 (5th
Cir. Mar. 13, 2025) (citing Diaz, 116 F.4th 458). And it denied his two Guidelinesrelated claims solely based on prong 3 of plain error review:
Even if we assume that Sullivan has shown clear or obvious error, he
cannot succeed on plain error review because he has failed to
demonstrate that any error affected his substantial rights. See id. To
show that his substantial rights were affected, he must demonstrate a
reasonable probability that, but for the error, his sentence would have
been different. See id. Here, the district court stated that it would have
imposed the same sentence even if its guideline calculations were
incorrect, and its reasons for imposing the sentence were untethered to
the allegedly incorrect guidelines range. These reasons included the
facts and circumstances of Sullivan’s case, the fact that he failed to
appear for his original sentencing date and avoided apprehension for
nearly two years, and the need to comply with the sentencing purposes
listed in 18 U.S.C. § 3553(a)(2). Because the court’s explanation shows
that it thought the chosen sentence “was appropriate irrespective of the
Guidelines range,” Sullivan has not shown a reasonable probability that
he would have received a different sentence but for the alleged error.
Sullivan, No. 24-10799, 2025 WL 1392087 at *1 (citation omitted).
6
REASONS FOR GRANTING THE PETITION
I.
This Court Should Decide The Constitutionality Of 18 U.S.C. §
922(G)(1) Under The Second Amendment.
Section 922(g)(1) is facially unconstitutional because its lifetime prohibition on
gun possession imposes a historically unprecedented burden on the right to bear arms.
No historical firearm law imposed permanent disarmament. And the justification
behind § 922(g)(1)—disarming a broad group of potentially irresponsible individuals—
also fails historical scrutiny. The decision below relied on the Fifth Circuit’s opinion in
Diaz, which suffers from analytical flaws and is at odds with this Court’s guidance in
Bruen and United States v. Rahimi, 602 U.S. 680 (2024).
This question is critically important. Section 922(g)(1) is one of the most
commonly charged federal offenses. Uncertainty about whether the statute is
constitutional affects thousands of criminal cases each year. Even more concerning,
§ 922(g)(1) categorically and permanently prohibits millions of Americans from
exercising their right to keep and bear arms.
This Court’s intervention is urgently needed to resolve the scope of a fundamental
constitutional right. After Rahimi, the confusion among the courts of appeals has only
deepened. The Court should grant certiorari.
A. Bruen abrogated precedent upholding the constitutionality of §
922(g)(1).
The Second Amendment to the United States Constitution mandates that 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. In
7
District of Columbia v. Heller, this Court held that the Second Amendment codified
an individual right to possess and carry weapons, the core purpose of which is selfdefense in the home. 554 U.S. 570, 628 (2008). See also McDonald v. City of Chicago,
561 U.S. 742, 767 (2010) (holding “that individual self-defense is the central
component of the Second Amendment right”).
After Heller, the Fifth Circuit “adopted a two-step inquiry for analyzing laws
that might impact the Second Amendment.” Hollis v. Lynch, 827 F.3d 436, 446
(5th Cir. 2016). In the first step, courts asked “whether the conduct at issue falls
within the scope of the Second Amendment right.” United States v. McGinnis,
956 F.3d 747, 754 (5th Cir. 2020) (quoting Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012)). This step
involved determining “whether the law harmonizes with the historical traditions
associated with the Second Amendment guarantee.” Id. at 754. If the conduct was
outside the scope of the Second Amendment, the law was constitutional. Id.
Otherwise, courts proceeded to the second step to determine whether to apply strict
or intermediate scrutiny. Id.
In Bruen, this Court announced a new framework for analyzing Second
Amendment claims, abrogating the two-step inquiry adopted by the Fifth Circuit and
others. See 597 U.S. at 19. See also Diaz, 116 F.4th at 465 (holding that Bruen
“render[s] our prior precedent obsolete”) (quotation omitted). It rejected step two of
that framework because “Heller and McDonald do not support applying means-end
scrutiny in the Second Amendment context.” Bruen, 597 U.S. at 19.
8
The Court elaborated that, under the new framework, “when the Second
Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct.” Id. at 17. The government then “must
demonstrate that the regulation is consistent with this Nation’s historical tradition
of firearm regulation.” Id. Only then may a court conclude that the individual’s
conduct falls outside of the Second Amendment’s “unqualified command.” Id. (citation
omitted). See also United States v. Rahimi, 602 U.S. 680, 699–700 (2024) (finding §
922(g)(8) facially constitutional under Bruen’s Second Amendment test).
B. Diaz was wrongly decided, insofar as it holds that the government
has met its burden under Bruen step 2.
In Diaz, the Fifth Circuit considered a facial and as-applied challenge to §
922(g)(1). It first recognized that the constitutionality of § 922(g)(1) was an open
question. This Court had not yet directly addressed the constitutionality of §
922(g)(1), and while the Fifth Circuit had issued prior decisions upholding the
constitutionality of § 922(g)(1), these decisions relied on “the means-ends scrutiny
that Bruen renounced” and did not survive Bruen. Diaz, 116 F.4th at 465 (citing
United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003), and United States v.
Emerson, 270 F.3d 203 (5th Cir. 2001)). The court also rejected the government’s
arguments that felons were not among “the people” protected by the Second
Amendment. See id. at 466–67 (“Diaz’s status as a felon is relevant to our analysis,
but it becomes so in Bruen’s second step of whether regulating firearm use in this
way is consistent with the Nation’s historical tradition rather than in considering the
Second Amendment’s initial applicability.”).
9
But the court ultimately affirmed Diaz’s conviction. Id. at 472. It found §
922(g)(1) was constitutional on its face and as-applied because there was a historical
tradition of imposing severe, permanent punishments on felons like Diaz who had
been convicted of theft offenses. See id. at 466–472. Specifically, it explained that “[a]t
the time of the Second Amendment’s ratification, those—like Diaz—guilty of certain
crimes—like theft—were punished permanently and severely,” that is, by death or
estate forfeiture, and “permanent disarmament was [also] a part of our country’s
arsenal of available punishments at that time.” Id.
Under Bruen, courts must strike down the law unless the government can meet
its “heavy burden” to identify a historic tradition of regulations that are “relevantly
similar” to § 922(g)(1). United States v. Connelly, 117 F.4th 269, 274 (5th Cir. 2024).
“The challenged and historical laws . . . must both (1) address a comparable problem
(the ‘why’) and (2) place a comparable burden on the right holder (the ‘how’).” Id.
(citing Rahimi, 602 U.S. 692, and Bruen, 597 U.S. at 27–30).
There is no way that the government could have met this heavy burden.
Founding-era laws generally limited categorical disarmament to disempowered
minority communities—for example, enslaved persons and Native Americans—and
those perceived to be disloyal to the government. See Joseph G.S. Greenlee, The
Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20
WYO. L. REV. 249, 261–65 (2020); Robert H. Churchill, Gun Regulation, the Police
Power, and the Right to Keep Arms in Early America, 25 LAW & HIST. REV. 139, 156–
61 (2007). These laws are not relevantly similar to § 922(g)(1) because they did not
10
“impose a comparable burden on the right” and are not “comparably justified” to
§ 922(g)(1). Bruen, 597 U.S. at 29. In fact, “[p]ossessing a firearm as a felon . . . was
not considered a crime until 1938 at the earliest.” Diaz, 116 F.4th at 468 (citing
Federal Firearms Act, ch. 850, §§ 1(6), 2(f), 52 Stat. 1250, 1250–51 (1938); An Act to
Strengthen the Federal Firearms Act, Pub. L. No. 87–342, § 2, 75 Stat. 757, 757
(1961)).
Such twentieth century laws are well beyond the historical sources cited in
Bruen, and they cannot demonstrate a longstanding tradition of disarming felons. See
Bruen, 597 U.S. at 66 (noting that even “late-19th-century evidence cannot provide
much insight into the meaning of the Second Amendment when it contradicts earlier
evidence”). See also Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (Barrett, J.,
dissenting) (noting scholars have been unable to identify any founding-era laws
disarming all felons); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1563
& n.67 (2009) (“The Founding generation had no laws limiting gun possession by the
mentally ill, nor laws denying the right to people convicted of crimes.”). Thus, the
government cannot show that § 922(g)(1) is consistent with the Nation’s historical
tradition of firearm regulation.
This Court’s decision in Rahimi also weighs in favor of striking down §
922(g)(1). Rahimi addressed a facial challenge to § 922(g)(8)(C)(i), the federal law that
prohibits firearm possession by persons subject to certain domestic violence
restraining orders. Rahimi, 602 U.S. 693. The Court found the government had met
its burden to identify historical analogues that were “relevantly similar” to the
11
challenged statute. Id. at 697–98. Specifically, it held that the historical statutes
identified by the government—surety laws and laws that prohibited riding or going
armed with dangerous weapons—showed a national tradition of “temporarily
disarm[ing]” an “individual found by a court to pose a credible threat to the physical
safety of another.” Id.
But, all the features that prevented this Court from striking down the Rahimi
statute are missing from § 922(g)(1). In Rahimi, the Court emphasized the narrow
scope of the challenged statute. It explained that “Section 922(g)(8) applies only once
a court has found that the defendant represents a credible threat to the physical
safety of another[,]” which “matches” the similar “judicial determinations” required
in the surety and going armed laws. Id. at 699 (internal quotation marks omitted).
The Court also emphasized the limited duration of § 922(g)(8). It explained that
“Section 922(g)(8) only prohibits firearm possession so long as the defendant ‘is’
subject to a restraining order[,]” just “like surety bonds of limited duration[.]” Id. In
contrast, § 922(g)(1) is a categorical ban that prohibits everyone convicted of a crime
punishable by more than a year in prison from possessing a gun—without any
individualized finding or consideration of whether or not they threaten others. See 18
U.S.C. § 922(g)(1). The analogues that the government relied upon in Rahimi cannot
justify this broader, permanent ban. And this Court’s reliance on features of §
922(g)(8) that are missing from § 922(g)(1) confirms that § 922(g)(1) cannot pass
constitutional muster under Bruen and Rahimi. Thus, for the same reasons §
922(g)(8) is constitutional, § 922(g)(1) is not.
12
Diaz held that “laws authorizing severe punishments for” certain felonies “and
permanent disarmament in other cases establish that our tradition of firearm
regulation supports the application of § 922(g)(1) to” certain felons. 116 F.4th at 471.
This analysis suffers from critical flaws.
First, as noted above, Diaz held that the government had met its burden to
show a “relevantly similar” historical analogue to § 922(g)(1) by relying on historical
laws that punished certain crimes by capital punishment and estate forfeiture. See
Diaz, 116 F.4th at 467–70. But contrary to the reasoning in Diaz, laws unrelated to
firearms use are not proper analogues. This Court’s precedent requires the
government to show that a modern gun law aligns with our “historical tradition of
firearm regulation.” Bruen, 597 U.S. at 17 (emphasis added); Rahimi, 602 U.S. at 691
(same). In other words, the government’s historical analogues must regulate firearms;
capital punishment and estate forfeiture are not firearm regulations. Indeed, Rahimi
relied only on historical laws that “specifically addressed firearms violence.” 602 U.S.
at 694–95. So did Bruen. See 597 U.S. at 38–66.
In justifying its reliance on capital punishment and estate forfeiture, however,
Diaz asserted that Rahimi “consider[ed] several historical laws that were not
explicitly related to guns.” Diaz, 116 F.4th at 468. But Rahimi says just the opposite.
In Rahimi, this Court relied on two historical legal regimes—surety laws and going
armed laws—that “specifically addressed firearms violence.” 602 U.S. at 694–95
(emphasis added). To be sure, surety laws were not “passed solely for the purpose of
regulating firearm possession or use.” Diaz, 116 F.4th at 468. But this Court
13
emphasized that, “[i]mportantly for this case, the surety laws also targeted the misuse
of firearms.” Rahimi, 602 U.S. at 696 (emphasis added). “The purpose of capital
punishment in colonial America was threefold: deterrence, retribution, and
penitence.” Diaz, 116 F.4th at 469 (citation omitted). Targeting the misuse of firearms
was not one of its purposes. Yet it was a primary purpose for permanent felon
disarmament, which aimed “to keep firearms out of the hands of those who are ‘a
hazard to law-abiding citizens’ and who had demonstrated that ‘they may not be
trusted to possess a firearm without becoming a threat to society.’” Id. (citation
omitted). In other words, laws that did not target the misuse of firearms—like capital
punishment and estate forfeiture—are not proper analogues.
Second, Diaz noted that this Court accepted a “greater-includes-the-lesser”
argument in Rahimi. Diaz, 116 F.4th at 469–70. This is true only insofar as in Rahimi,
both the greater restriction (imprisonment under the going armed laws) and the lesser
punishment (disarmament under 18 U.S.C. § 922(g)(8)) had the same purpose. Rahimi
held that “if imprisonment was permissible to respond to the use of guns to
threaten the physical safety of others, then the lesser restriction of temporary
disarmament … is also permissible.” 602 U.S. at 682 (emphasis added). But it does
not follow, as Diaz concluded, that “if capital punishment was permissible to respond
to theft, then the lesser restriction of permanent disarmament that § 922(g)(1)
imposes is also permissible.” Diaz, 116 F.4th at 469. Capital punishment simply did
not target gun violence. Because neither capital punishment nor estate forfeiture
14
establish a tradition of firearm regulation, this Court’s precedent forecloses employing
them as historical analogues for § 922(g)(1).
Third, an historical law must match both metrics to be considered relevantly
similar — the why and the how — to serve as an analogue under Bruen. Diaz
accordingly mis-stepped when it concluded that “[g]oing armed laws are relevant
historical analogues to § 922(g)(1), just as Rahimi found them to be with respect to §
922(g)(8).” Diaz, 116 F.4th at 471. In short, “the justification behind going armed
laws—to ‘mitigate demonstrated threats of physical violence’—does not necessarily
support a tradition of disarming [felons] whose underlying convictions do not
inherently involve a threat of violence.” Diaz, 116 F.4th at 471 n.5 (quoting Rahimi,
602 U.S. at 698). Diaz nonetheless relied on these historical laws because of a match
on the “how” part of the test, ignoring the deficit on the “why.” See id. (“We focus on
these laws to address the ‘how’ of colonial-era firearm regulation, rather than the
‘why,’ which is supported by other evidence.” (citing Bruen, 597 U.S. at 29)). This
approach directly contradicts this Court’s instruction to match an analogue on both
metrics. Connelly, 117 F.4th at 274 (citing Rahimi, 602 U.S. at 692; Bruen, 597 U.S.
at 27–30).
The comparison to Rahimi also glosses over a critical difference between
§ 922(g)(1) and § 922(g)(8)(C)(i), which “applies only once a court has found that the
defendant ‘represents a credible threat to the physical safety’ of another.” Rahimi,
602 U.S. at 699 (quoting 18 U.S.C. § 922(g)(8)(C)(i)). “That matches the . . . going
armed laws,” Rahimi reasoned, “which involved judicial determinations of whether a
15
particular defendant likely would threaten or had threatened another with a
weapon.” Id. As Diaz itself recognized, § 922(g)(1), unlike § 922(g)(8), casts its net
irrespective of threats of violence. Diaz, 116 F.4th at 471 n.5. Diaz cannot excuse this
incongruity by only half-applying Bruen.
Ultimately, there are no historical firearms laws that imposed the type of
categorical, permanent disarmament effected by § 922(g)(1). The government
therefore cannot overcome the presumption that § 922(g)(1) violates the Second
Amendment. See Bruen, 597 U.S. at 24. The statute is unconstitutional, and this
Court should grant certiorari.
C. This Court should intervene to resolve the Circuit split regarding
the scope of the Second Amendment.
Not only was Diaz wrongly decided, but it deepened an intractable split among
the Courts of Appeals regarding the scope of the Second Amendment right. The
Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that § 922(g)(1) may
be constitutionally applied to all felons. See United States v. Duarte, 137 F.4th 743,
747 (9th Cir. 2025) (citing United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024)
(rejecting an as-applied challenge on a categorical basis); United States v. Jackson, 110
F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66
(10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor Rahimi
abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94
F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, –– U.S. ––, 145 S.Ct.
1041 (2025) (holding that Bruen did not abrogate circuit precedent foreclosing such
challenges)).
16
The Third, Fifth, and Sixth Circuits remain open to as-applied challenges, but
disagree on how to analyze such a challenge. The Fifth Circuit, as noted above,
considers as-applied challenges by defendants whose relevant felonies were not
punished “permanently and severely,” that is, by death or estate forfeiture. Diaz, 116
F.4th at 472. More recently, the Fifth Circuit identified an additional ground for
disarming an individual based on § 922(g)(1). In Schnur, the court held that the
defendant’s felony aggravated battery conviction was a “crime of violence” indicating
that “he poses a threat to public safety and the orderly functioning of society[,]” and
therefore, disarming him “is consistent with this Nation’s historical tradition of
firearm regulation and punishment of people who have been convicted of violent
offenses.” United States v. Schnur, 132 F.4th 863, 870 (5th Cir. 2025) (citations
omitted) (cleaned up). Then, in Betancourt, the court looked to the facts of the
defendant’s felony aggravated assault convictions—in which he disregarded a red
light, drove at 107 miles per hour, caused a major crash and seriously injured two
people—and determined that he could be disarmed pursuant to Schnur because he
“poses a threat to public safety.” United States v. Betancourt, 139 F.4th 480, 484 (5th
Cir. 2025) (quoting Schnur, 132 F.4th at 870) (internal quotation marks ommitted).
In the Sixth Circuit, however, the defendant bears the burden of proving that
he is “not dangerous.” United States v. Williams, 113 F.4th 637, 657 (6th Cir. 2024).
And unlike in the Fifth Circuit—where, in conducting the dangerousness inquiry, the
court may only consider “prior convictions that are punishable by imprisonment for a
term exceeding one year[,]” Schnur, 132 F.4th at 867 (quoting Diaz, 116 F.4th at 467)
17
(cleaned up)—a Sixth Circuit court “may consider a defendant’s entire criminal
record—not just the specific felony underlying his § 922(g)(1) conviction.” Williams, 113
F.4th at 659–60 (emphasis added).
Significantly, the Third Circuit upheld an as-applied challenge by an
individual with a decades-old food stamp fraud conviction, holding that the
government could not show a historical tradition of depriving people like him of his
Second Amendment right. Range v. Att’y Gen. U.S., 124 F.4th 218, 232 (3d Cir.
2024)(en banc). It adopted yet another standard, holding that § 922(g)(1) is
unconstitutional as applied to someone who did not “‘pose[ ] a physical danger to others’
if armed[.]” Pitsilides v. Barr, 128 F.4th 203, 210 (3d Cir. 2025) (quoting Range, 124
F.4th at 232). It urged courts to “consider all factors that bear on a felon’s capacity to
possess a firearm without posing such a danger[,]” which includes an individual’s
“entire criminal history,” and also “post-conviction conduct.” Id. at 211–12.
In sum, disagreements abound — not only inter-circuit, but intra-circuit too.
In Range, the en banc Third Circuit generated six opinions, including one dissent.
The Ninth Circuit in Duarte, also en banc, generated four opinions, including one
partial dissent. Williams, a panel decision, produced a concurrence in the judgment
only. In short, judges “are currently at sea when it comes to evaluating firearms
legislation[,]” and are in “need [of] a solid anchor for grounding their constitutional
pronouncements.” Rahimi, 602 U.S. at 747 (Jackson, J., concurring). Indeed, as the
inter and intra circuit splits demonstrate, there is a dire need for this Court to
intervene.
18
D. In the alternative, the Court should hold the instant petition
pending the resolution of another case presenting the same issue.
This Court should grant certiorari to decide this important issue. Several
petitions raising facial challenges to § 922(g)(1) are pending before this Court. 1
Should the Court grant certiorari in another case presenting a facial challenge
to § 922(g)(1), it should hold Mr. Sullivan’s petition pending the outcome. See
Lawrence on Behalf Lawrence v. Chater, 516 U.S. 163, 166 (1996); Stutson v. United
States, 516 U.S. 163, 181 (1996)(Scalia, J., dissenting)(“We regularly hold cases that
involve the same issue as a case on which certiorari has been granted and plenary
review is being conducted in order that (if appropriate) they may be ‘GVR’d’ when the
case is decided.”)(emphasis in original).
II.
The Court of Appeals Are Divided on the Level of Deference to
Grant District Courts that Disclaim the Impact of the Guidelines
on the Sentence Chosen, Undermining the Congressional Goal of
Uniformity in Sentencing.
Although advisory only, United States v. Booker, 543 U.S. 220 (2005), the
Guidelines play a central role in federal sentencing. The district court must begin
each sentencing determination by correctly calculating them, and mistakes in their
application constitute reversible error. Gall v. United States, 552 U.S. 38, 49, 50
(2007). Indeed, this Court presumes that Guideline error affects the sentence
imposed. Molina-Martinez v. United States, 578 U.S. 189 (2016).
Petitions raising facial challenges to § 922(g)(1) under the Second Amendment
are pending in at least the following cases: Johnson v. United States, No. 24-7347
(U.S. May 30, 2025); Mason v. United States, No. 24-7286 (U.S. May 20, 2025); and
Matlock v. United States, No. 24-7398 (U.S. Jun. 11, 2025).
1
19
The Guidelines thus function as a “framework,” Molina-Martinez, 589 U.S. at
192, an “anchor,” id. at 204, a “lodestar,” id. at 200, and a “benchmark and starting
point,” Gall, 552 U.S. at 49, in federal sentencing. That characterization is both
doctrinal and empirical. From an empirical standpoint, most sentences fall within
the Guidelines, and Guideline errors actually tend to affect the sentence imposed.
Molina-Martinez, 589 U.S. at 199-200. Doctrinally, the central role of the Guidelines
manifests in a presumption of reasonableness for within-Guideline sentences, Rita
v. United States, 551 U.S. 338, 341 (2007), in the defendant’s ex post facto rights in
the Guideline Manual, Peugh v. United States, 569 U.S. 530 (2013), and in the
District Court’s duty to explain out-of-range sentences, Rita, 551 U.S. at 357. The
practice of some Courts of Appeals—blindly accepting statements by the District
Court calculated to engineer a finding of harmless error—undermines the special
role of the Guidelines in federal sentencing. Moreover, it conflicts with the rule of
several other Courts of Appeals. This Court should intervene.
A. The Lower Courts Are divided.
In the Eighth and Eleventh Circuits, a sentencing decision is automatically
insulated from appellate review if “the district court explicitly states that it would
have imposed the same sentence of imprisonment regardless of the underlying
Sentencing Guideline range.” United States v. Peterson, 887 F.3d 343, 349 (8th Cir.
2018)(quoting United States v. Davis, 583 F.3d 1081, 1094–95 (8th Cir. 2009)).
Like the Eighth Circuit, the Eleventh Circuit allows sentencing judges to
disclaim any reliance on the Guidelines, even after extensive litigation about them.
In the court’s own words, a routine disclaimer is “‘all we need to know’ to hold that
20
any potential error was harmless.” United States v. Henry, 1 F.4th 1315, 1327 (11th
Cir. 2021)(quoting United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006));
accord United States v. Grady, 18 F.4th 1275, 1291 (11th Cir. 2021) (citing Keene, 470
F.3d at 1348–49)(“[A] guidelines error is harmless if the district court unambiguously
expressed that it would have imposed the same sentence, regardless of the guidelines
calculation.”).
The Second, Third, Ninth, and Tenth Circuits have all rejected routine
disclaimers like the one in this case. The Second Circuit has warned every sentencing
court that it should “not try to answer the hypothetical question of whether or not it
definitely would impose the same sentence on remand if [the court of appeals] found
particular enhancements erroneous.” United States v. Feldman, 647 F.3d 450, 460
(2d Cir. 2011). “Nor do we believe that criminal sentences may or should be exempted
from procedural review with the use of a simple incantation: ‘I would impose the same
sentence regardless of any errors calculating the applicable Guidelines range.’” Id.;
see also United States v. Seabrook, 968 F.3d 224, 233–34 (2d Cir. 2020) (“[T]he district
court cannot insulate its sentence from our review by commenting that the Guidelines
range made no difference to its determination when the record indicates that it did.”).
In the Third Circuit, a disclaimer doesn’t render a Guideline error harmless.
The sentencing court would have to conduct a full, three-step sentencing process
before selecting a valid alternative sentence: (1) calculate the correct Guideline range
as a starting point; (2) decide whether to depart under the Guidelines; and then
21
(3) weigh the 18 U.S.C. § 3553(a) factors to determine whether a variance is
appropriate. United States v. Wright, 642 F.3d 148, 155–54 & n.6 (3d Cir. 2011).
The Ninth Circuit agrees: a Guideline error is harmless only if the district
court “performs its sentencing analysis twice.” United States v. Williams, 5 F.4th 973,
978 (9th Cir. 2021)(quoting United States v. Munoz-Camarena, 631 F.3d 1028, 1030
n.5 (9th Cir. 2011)) (cleaned up). A “mere statement” that the court would impose the
same sentence “‘no matter what the correct calculation cannot, without more, insulate
the sentence from remand’ if ‘the court’s analysis did not flow from an initial
determination of the correct Guidelines range.’” Id. (quoting Munoz-Camarena, 631
F.4d at 1031).
Unlike the court below, the Tenth Circuit would give “little weight to the
district court’s statement that its conclusion would be the same ‘even if all of the
defendant’s objections to the presentence report had been successful.’” United States
v. Gieswein, 887 F.3d 1054, 1062–63 (10th Cir. 2018). The Tenth Circuit “has rejected
the notion that district courts can insulate sentencing decisions from review by
making such statements.” Id. (citing United States v. Pena-Hermosillo, 522 F.3d 1108,
1109 (10th Cir. 2008)).
The Fifth Circuit cannot easily be sorted into one camp or the other. Some
panels agree with the Second, Third, Ninth, and Tenth Circuits. See, e.g., United
States v. Ritchey, 117 F.4th 762, 767 (5th Cir. 2024) (“This statement is relevant to
the harmless error inquiry, but it is not decisive.”); United States v. Tanksley, 848
F.3d 347, 353 (5th Cir. 2017) (“Nonetheless, it is not enough for the district court to
22
say the same sentence would have been imposed but for the error.”); United States v.
Martinez-Romero, 817 F.3d 917, 925–26 (5th Cir. 2016)(“The court stated three times
that even if the 16–level enhancement for the attempted kidnapping was incorrect, it
would nonetheless impose the same 46–month sentence.” Even so, the “sentencing
error [was] not harmless.”).
But the decision below—like most published Fifth Circuit decisions—follows
the Eighth and Eleventh Circuits’ approach: a District Court’s Guideline disclaimer
is enough to make the error harmless. See, e.g., United States v. Reyna-Aragon, 992
F.3d 381, 387–89 (5th Cir. 2021); United States v. Medel-Guadalupe, 987 F.3d 424,
429 (5th Cir. 2021); United States v. Redmond, 965 F.3d 416, 420–21 (5th Cir. 2020);
United States v. Vega-Garcia, 893 F.3d 326, 328 (5th Cir. 2018); United States v.
Guzman-Rendon, 864 F.3d 409, 411–12 (5th Cir. 2017).
B. Experience and data suggest that most Guideline disclaimers
are wrong.
“[W]hen a Guidelines range moves up or down, offenders’ sentences tend to
move with it.” Molina-Martinez, 578 U.S. at 199 (quoting Peugh, 569 U.S. at 544
(2013))(cleaned up). This Court has recognized that, “in most cases” where the “court
mistakenly deemed applicable an incorrect, higher Guidelines range,” that error will
affect a defendant’s substantial rights. Id. at 200.
In an “ordinary case,” the Sentencing Guidelines “serve as the starting point
for the district court’s decision and anchor the court’s discretion in selecting an
appropriate sentence.” Molina-Martinez, 578 U.S. at 204. As this Court has observed,
Sentencing Commission “statistics demonstrate the real and pervasive effect the
23
Guidelines have on sentencing.” Molina-Martinez, 578 U.S. at 199. That strongly
suggests that judges who routinely make Guideline disclaimers understate the
Guidelines’ effect on their ultimate selection of sentence and overestimate the
probability of an above-range departure in the absence of a Guideline error.
C. The practice of disclaiming Guideline error undermines the role of
the Guidelines and frustrates Congressional policy.
The Guidelines seek to promote proportionality and uniformity of sentences
among similarly situated offenders. Rita, 551 U.S. at 349. And appellate review of
Guideline questions is important to that goal. Review provides public information
about the meaning of Guidelines, resolving ambiguities that might afflict all
litigants in the Circuit. See S. Rep. No. 225, 98th Cong., 2d Sess. 151 (1984),
reprinted in 1984 U.S.C.C.A.N. 3182, 3334 (describing the right to appellate review
“essential to assure that the guidelines are applied properly and to provide case law
development of the appropriate reasons for sentencing outside the guidelines.”). This
process also alerts the Sentencing Commission that an Amendment might be
necessary. Rita, 551 U.S. at 350; Braxton v. United States, 500 U.S. 344, 348 (1991).
Acceptance of routine Guideline disclaimers undermines this framework
because it provides a way to avoid meaningful scrutiny of Guideline application
questions. Many judges, after all, regard the Guidelines as complicated and
cumbersome. See United States v. Williams, 431 F.3d 767, 773 (11th Cir.
2005)(Carnes, J., concurring)(“The Booker decision did not free us from the task of
applying the Sentencing Guidelines, some provisions of which are mind-numbingly
complex and others of which are just mind-numbing.”). District courts that do not
24
wish to trouble with them, or that do not wish to trouble with them more than once,
may be tempted to insulate all sentences from review by issuing a simple Guideline
disclaimer. Indeed, distinguished Circuit judges have encouraged such disclaimers
precisely to avoid frustrating and difficult Guideline adjudications. See Williams,
431 F.3d at 773 (Carnes, J., concurring).
Widespread acceptance of Guideline disclaimers also diminishes the anchoring
effect of the Guidelines in federal sentencing. Indeed, a concurring and dissenting
opinion of the Fourth Circuit has argued that this is already the condition of federal
sentencing:
The evolution of our harmless error jurisprudence has reached the point
where any procedural error may be ignored simply because the district
court has asked us to ignore it. In other words, so long as the court
announces, without any explanation as to why, that it would impose the
same sentence, the court may err with respect to any number of
enhancements or calculations. More to the point, a defendant may be
forced to suffer the court’s errors without a chance at meaningful review.
Gall is essentially an academic exercise in this circuit now, never to be
put to practical use if district courts follow our encouragement to
announce alternative, variant sentences. If the majority wishes to
abdicate its responsibility to meaningfully review sentences for
procedural error, the least it can do is acknowledge that it has placed
Gall in mothballs, available only to review those sentences where a
district court fails to cover its mistakes with a few magic words.
United States v. Gomez-Jimenez, 750 F.3d 370, 390 (4th Cir. 2014)(Gregory, J.,
concurring and dissenting in part) (footnote omitted).
This Court should grant the petition for certiorari to decide whether such a
disclaimer is enough to insulate an erroneous sentence from appellate review.
25
D. This case well presents the issue.
The present case is an apt vehicle to resolve the Circuit split. The only actual
explanation the district court gave for the sentence is Mr. Sullivan’s “absconding.”
See Initial Brief at **30–31 (citing Record on Appeal 151). The Fifth Circuit did not
address Mr. Sullivan’s point that the correct range of 30 to 37 months already takes
into account the “absconding” because it includes a 2-level enhancement for
obstruction of justice and omits the 3-level reduction for acceptance of responsibility
that would otherwise apply for a defendant who pled guilty. Reply Brief at **20–21
(citing Record on Appeal 197-98; U.S.S.G. § 2K2.1(a)(6)(A); U.S.S.G. Ch. 5, Pt. A
(Total Offense Level 18, criminal history category II); see Sullivan, No. 24-10799,
2025 WL 1392087 at *1. Even at the lower range, the Guidelines account for the
“absconding” by increasing Mr. Sullivan’s offense level by 5 points.
While the Fifth Circuit claimed that the court also mentioned “the facts and
circumstances of Sullivan’s case” and “the need to comply with the sentencing
purposes in 18 U.S.C. § 3553(a)(2),” Sullivan, No. 24-10799, 2025 WL 1392087 at *1,
those are boilerplate statements that—like the disclaimer—a district court can recite
at any sentencing to avoid appellate review. It falls short of a “detailed explanation
of the reasons the selected sentence is appropriate.” Molina-Martinez, 578 U.S. at 200
(emphasis added).
Moreover, the court sentenced Mr. Sullivan to 65 months, a number in the
middle of the incorrect range of 57 to 71 months that it reached after considering “the
guidelines.” Record on Appeal 149, 151. The court’s statement of reasons likewise
26
classified its sentence as a “within the guideline range” sentence. Record on Appeal
205. It is obvious that the Guidelines played a critical role in the district court’s
decision. The court’s statement that it would give the same sentence cannot be treated
like magic words, inoculating against this Court’s review of the district court’s
erroneous application of the law.
And to the extent that the district court claimed that it would have given the
“same sentence” “even if we didn’t have the guidelines” Record on Appeal 151, this
Court should not accept such an explanation. If the court would have sentenced Mr.
Sullivan to 65 months in the absence of the Guidelines, that means the Guidelines
were not the “‘starting point and ... initial benchmark’” for the sentencing decision.
Molina-Martinez, 578 U.S. at 198 (quoting Gall v. United States, 552 U.S. 38, 49
(2007)). Yet “[f]ederal courts…‘must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process.’” Id. (quoting Peugh v.
United States, 569 U.S. 530, 541 (2013)) (emphasis in original). “The Guidelines are
‘the framework for sentencing’ and ‘anchor ... the district court’s discretion.’” Id. at
198–99 (quoting Peugh, 569 U.S. at 542, 549). If Guidelines played no role in the
court’s sentencing decision, then the district court flouted these Supreme Court
directives.
Prong 3 is likely to be dispositive. The court plainly erred by applying the 2021
Guidelines manual, rather than the 2023 Guidelines manual, which was in effect on
the date of sentencing. The error affected Mr. Sullivan’s substantial rights, because
unlike the 2021 Guidelines Manual, the 2023 Guidelines Manual contains
27
Amendment 822 which overruled this Court’s precedent holding that his prior
robbery offense was a crime of violence. See U.S.S.G. § 4B1.2(e)(3)(2023).
This is notwithstanding the fact that the Fifth Circuit recently held that Texas
robbery is a crime of violence under the Guidelines. See United States v. Wickware,
143 F.4th 670 (5th Cir. 2025). Wickware argued that Texas robbery was broader than
the Guidelines definition because “the addition of the phrase ‘by means of actual or
threatened force, or violence, or fear of injury’ requires a ‘causal connection’ between
the defendant’s assaultive conduct and the unlawful taking; the property must be
taken from the person through actual or threatened force.” Id. at 674 (emphasis in
original). By contrast, according to Wickware, Texas robbery “simply requires harm
to another in the course of committing theft[.]” Id. (cleaned up) (emphasis in original).
“For us to agree with Wickware,” said the Court, “we must find that ‘in the course of’
and ‘by means of’ are substantially dissimilar.” Id. It declined to do so, because “both
phrases require the use of force preceding, during, or throughout the theft. And since
minor variances in terminology should not distract us from the substance of the text,
we do not find this difference compelling.” Id. (cleaned up). The Court held that “the
elements of robbery under § 29.02 are the same or narrower than those of the
Guidelines’ generic robbery offense.” Id. at 675.
This conclusion is wrong. On November 1, 2023, the Sentencing Commission
adopted Amendment 822, which created a new definition of “robbery” for the purposes
of § 4B1.2 by importing the definition for Hobbs Act robbery. Compare U.S.
Sentencing Comm’n, Guidelines Manual § 4B1.2(a)(2), (e)(3) (Nov. 1, 2023), with 18
28
U.S.C. § 1951(b)(1). Per the Commission, the recent amendment ensures that a
conviction under that statute—frequently referred to as one for Hobbs Act robbery—
will qualify as a conviction for a “crime of violence” under the Guidelines Manual.
U.S. Sentencing Comm’n, Supplement to Appendix C at 247 (Nov. 1, 2023).
The Hobbs Act and now the Guidelines define “robbery” to require a taking “by
means of actual or threatened force, or violence, or fear of injury, immediate or future,
to his person or property . . .” See 18 U.S.C. § 1951(b)(1); U.S.S.G. § 4B1.2(e)(3). It
follows that because the “robbery” definition in § 4B1.2(e)(3) now mirrors Hobbs Act
robbery, it requires an intentional use of force.
And, Hobbs Act robbery is a “crime of violence” under the elements clause of
18 U.S.C. § 924(c)(3)(A), which provides that an offense is a crime of violence if it “has
as an element the use, attempted use, or threatened use of physical force against
another.” See, e.g., United States v. Hill, 63 F.4th 335, 363 (5th Cir. 2023). By
contrast, offenses committed recklessly do not satisfy the elements clause. See, e.g,
Borden v. United States, 593 U.S. 420 (2021) (plurality op.) And because robbery in
U.S.S.G. § 4B1.2(e)(3) mirrors the definition of Hobbs Act robbery, it excludes any
offense that does not involve an intentional use of force and cannot be committed
recklessly. And yet, the Texas Court of Appeals sustained a robbery conviction for a
defendant who shoplifted from a store on the second floor of a shopping mall, and in
an escape attempt, jumped over a railing and recklessly injured a shopper walking
on the first floor. Craver v. State, No. 02-14-00076-CR, 2015 WL 3918057 at *2 (Tex.
App. June 25, 2015). The Fifth Circuit explicitly declined to address this argument,
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noting in a footnote that Wickware had forfeited it. See Wickware, 143 F.4th at 674,
n.2.
Unlike the appellant in Wickware, Mr. Sullivan briefed this issue before the
Court of Appeals. See Initial Brief at **14–24; Reply Brief at **1–14. And while
review is for plain error, an error may become “plain” any time while the case remains
on direct appeal. See Henderson v. United States, 568 U.S. 266 (2013).
E. In the alternative, the Court should hold the instant petition pending
the resolution of another case presenting the same issue.
This Court should grant certiorari to decide this momentous issue. A petition
for certiorari is pending in United States v. Medrano, 24-7508 (U.S. Jun. 26, 2025)
that raises the issue of whether an appellate court should credit a district court’s
disclaimer of reliance on the Guidelines.
Should the Court grant certiorari in Medrano, or another case, it should hold
Mr. Sullivan’s petition pending the outcome. See Lawrence on Behalf Lawrence v.
Chater, 516 U.S. 163, 166 (1996); Stutson v. United States, 516 U.S. 163, 181
(1996)(Scalia, J., dissenting)(“We regularly hold cases that involve the same issue as
a case on which certiorari has been granted and plenary review is being conducted in
order that (if appropriate) they may be ‘GVR’d’ when the case is decided.”)(emphasis
in original).
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CONCLUSION
Petitioner Jessie Dejuan Sullivan respectfully asks this Court to grant
certiorari to review the judgment of the United States Court of Appeals for the Fifth
Circuit.
Respectfully submitted this 12th day of August, 2025.
JASON D. HAWKINS
Federal Public Defender
Northern District of Texas
/s/ Loui Itoh
Loui Itoh
Assistant Federal Public Defender
Northern District of Texas
PO Box 17743
819 Taylor Street Room 9A10
Fort Worth, Texas 76102
(817) 978-2753
Loui_Itoh@fd.org
Attorney for Petitioner
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.