Petition for Writ of Certiorari — Joseph Lee Betancourt, Petitioner v. United States

APPENDIX

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

FILED

No. 24-20070

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June 4, 2025

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Joseph Lee Betancourt,

Defendant—Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CR-229-1

______________________________

Before Stewart, Dennis, and Haynes, Circuit Judges.

Haynes, Circuit Judge:

Joseph Lee Betancourt appeals from his conviction for firearms

possession under 18 U.S.C. § 922(g)(1), the felon-in-possession statute. He

argues that the statute, as applied to him in this case, violates the Second

Amendment. For the reasons below, we disagree and thus AFFIRM his

conviction.

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No. 24-20070

I.

Background

A. Procedural History

On December 28, 2019, Harris County Sheriff’s Office deputies

responded to a 911 call at Betancourt’s home in Channelview, Texas. The

caller was Betancourt’s sister-in-law, Brenda Rodriguez. Rodriguez said

Betancourt brandished a firearm during an argument with his brother, Jacob

Emerson. Betancourt reportedly kicked in a bedroom door and pointed the

firearm at Emerson while Emerson was holding his one-year-old daughter.

Betancourt demanded money and a ride to retrieve his vehicle, which had

been towed that morning after he was found to be driving without a license.

Betancourt was arrested, and during a search of the safe in

Betancourt’s bedroom, deputies found two guns, 399 rounds of ammunition,

and body armor. The guns were manufactured outside the state. A review

of Betancourt’s criminal history revealed prior felony convictions for

aggravated assault.

Rodriguez and Emerson said Betancourt “often retrieves firearms

from his safe and holds them when behaving confrontationally” and added

that, several times, “gunfire ha[d] occurred in the residence from both

Betancourt and unknown persons who discharged weapons at the home.”

Officers saw multiple bullet strikes on the walls, floor, windows, and kitchen

appliances and on the surface of Betancourt’s safe.

A federal grand jury charged Betancourt with two counts of violating

18 U.S.C. § 922(g)(1). As relevant here, that statute prohibits possession in

interstate commerce of firearms or ammunition by “any person” who “has

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been convicted in any court” of “a crime punishable by imprisonment for a

term exceeding one year.” Id.

Betancourt moved to dismiss the indictment, arguing that § 922(g)(1)

violates the Second Amendment. The district court denied the motion.

Betancourt and the Government subsequently entered a plea

agreement under which Betancourt reserved his right to appeal the district

court’s denial of his motion to dismiss. Betancourt accordingly pleaded

guilty to the second count of the indictment and was sentenced to time served

and three years of supervised release. Betancourt then timely appealed.

B. The Predicate Felony

When Betancourt was 19, he was charged with aggravated assault, a

felony, in two separate criminal cases arising out of the same incident.

Betancourt had been driving at his vehicle’s maximum speed of 107 miles per

hour, with the accelerator fully activated. He disregarded a flashing red light

and caused a major collision. His vehicle flipped several times, and his

passenger was ejected from the vehicle. The passenger and the driver of the

other vehicle were hospitalized. The passenger needed stitches to close a

laceration on her face, and the other driver needed surgery to repair a

ruptured small intestine.

Betancourt pleaded guilty in both cases and was sentenced to

concurrent three-year terms in custody. These convictions constituted the

predicate felony for Betancourt’s prosecution under § 922(g)(1).

II.

Jurisdiction & Standard of Review

The district court had jurisdiction over this case pursuant to 18 U.S.C.

§ 3231, which grants to federal district courts original jurisdiction over “all

offenses against the laws of the United States.” We have jurisdiction over

Betancourt’s appeal under 28 U.S.C. § 1291.

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We review the constitutionality of a federal statute de novo. Garner v.

U.S. Dep’t of Lab., 221 F.3d 822, 825 (5th Cir. 2000).

III.

Discussion

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court set

forth a two-part framework for determining whether a government regulation

violates the Second Amendment. See 597 U.S. 1, 17 (2022). 1 First, a court

must determine whether the Second Amendment’s plain text 2 covers the

regulated conduct; if so, the Constitution presumptively protects that

conduct. Bruen, 597 U.S. at 17. Second, to overcome the presumption, the

government “must demonstrate that the regulation is consistent with this

Nation’s historical tradition of firearm regulation.” Id. 3

The Supreme Court applied the Bruen framework in a later case,

United States v. Rahimi, in which the Court rejected a Second Amendment

challenge to 18 U.S.C. § 922(g)(8) 4 and held that “[a]n individual found by

a court to pose a credible threat to the physical safety of another may be

temporarily disarmed consistent with the Second Amendment.” Rahimi,

602 U.S. 680, 702 (2024). In doing so, the Court in Rahimi reaffirmed its

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1

Unlike this criminal case, Bruen was a civil case brought by “law-abiding”

citizens. 597 U.S. at 15.

2

The Second Amendment 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; see District of Columbia v. Heller, 554 U.S. 570, 576

(2008).

3

At the time Bruen was decided, the Supreme Court arguably did not conceive of

its new framework as involving two steps. See Bruen, 597 U.S. at 19 (“Despite the

popularity of this [prior] two-step approach, it is one step too many.”). However, we have

previously characterized Bruen as setting forth a two-step approach, so we do the same

here. See United States v. Schnur, 132 F.4th 863, 867 (5th Cir. 2025).

4

Under § 922(g)(8), persons subject to certain domestic violence restraining

orders are prohibited from possessing firearms in interstate commerce.

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previous statement that prohibitions “on the possession of firearms by

‘felons and the mentally ill[]’ are ‘presumptively lawful.’” Id. at 699

(quoting District of Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008)).

Betancourt brings facial and as-applied Second Amendment

challenges to § 922(g)(1). In United States v. Diaz, we applied Bruen and

Rahimi in considering facial and as-applied Second Amendment attacks on

the same statute. Diaz, 116 F.4th 458, 472 (2024), petition for cert. filed, No.

24-6625 (U.S. Feb. 18, 2025). Importantly, we denied the defendant’s facial

challenge to § 922(g)(1). Id. at 471–72. Thus, facial challenges are foreclosed

in our court. 5

Diaz allows as-applied challenges. Such challenges fail if “regulating

[the defendant]’s possession of a firearm is ‘consistent with the Nation’s

historical tradition of firearm regulation.’” Diaz, 116 F.4th at 467 (quoting

Bruen, 597 U.S. at 24). In short, the question in Diaz was whether “the

Nation has a longstanding tradition of disarming someone with a criminal

history analogous to” the relevant criminal history of the defendant, Ronnie

Diaz, Jr. Id. The Diaz panel defined Diaz’s relevant criminal history as

consisting of “prior convictions that are ‘punishable by imprisonment for a

term exceeding one year.’” Id. (quoting 18 U.S.C. § 922(g)(1)). Diaz’s such

prior convictions included “car theft, evading arrest, and possessing a

firearm as a felon.” Id.

The Diaz panel then rejected Diaz’s Second Amendment challenge.

The panel concluded that at the time of the Founding, Diaz’s theft conviction

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5

Betancourt concedes that his facial challenge is foreclosed by Diaz, which was

decided during the pendency of this appeal. Further, Betancourt contends that § 922(g)(1)

violates the Commerce Clause, but he concedes that this argument, too, is foreclosed by

circuit precedent. See United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (per curiam).

Thus, we don’t address those arguments.

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would have been a felony and “thus would have led to capital punishment or

estate forfeiture” and that “[d]isarming Diaz fits within this tradition of

serious and permanent punishment.” Id. at 469–70. The panel further

concluded that Founding-era state governments “could prevent people who

had committed crimes or were ‘quarrelsome’ from accessing weapons” and

enacted “statutes that . . . authorized forfeiture of weapons as punishment.”

Id. at 470 (citation omitted). “The size of these laws’ burden on the right to

bear arms,” the panel held, “is comparable to that of § 922(g)(1).” Id. at

471; see also United States v. Williams, 113 F.4th 637 (6th Cir. 2024).

With the above legal framework in mind, we turn to Betancourt’s asapplied challenge. In analyzing Diaz as applied to Betancourt, we look at his

aggravated assault convictions arising from the car crash he caused. He

argues that this incident, which he characterizes as involving mere reckless

driving rather than intentional violence, cannot constitutionally serve as

predicate for disarming him under § 922(g)(1). Betancourt contends that his

crime did not involve the misuse of a firearm and that the closest Foundingera analogue is therefore battery, which he says was a misdemeanor at the

time rather than a felony punishable by death or permanent disarmament.

We disagree.

The details of Betancourt’s aggravated assault

convictions show that his Second Amendment challenge must fail. As

described above, Betancourt disregarded a flashing red light while driving at

his vehicle’s maximum speed, 107 miles per hour, causing a major crash and

serious injuries to two people. He accordingly “poses a threat to public

safety.” United States v. Schnur, 132 F.4th 863, 870 (5th Cir. 2025) (rejecting

as-applied Second Amendment challenge to § 922(g)(1) where defendant’s

predicate offense did not involve the use of a firearm). 6 Specifically, he

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6

As in Diaz, we concluded in Schnur that the Government had satisfied its burden

under the Bruen inquiry because “there are historical analogues demonstrating our

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“put” his passenger’s “safety at risk,” Williams, 113 F.4th at 659, along with

the safety of the driver of the other vehicle, who needed surgery after

Betancourt caused the crash. In short, the Second Amendment does not

prohibit applying § 922(g)(1) to him here. See Schnur, 132 F.4th at 869;

Williams, 113 F.4th at 659; Diaz, 116 F.4th at 470 (concluding that Foundingera governments “could prevent people who had committed crimes . . . from

accessing weapons”).

We therefore are unpersuaded by Betancourt’s argument that there is

not a sufficiently apt Founding-era analogue for his aggravated assault

convictions under which the Founding generation would have disarmed the

offender. The Supreme Court made clear in Rahimi that Bruen “w[as] not

meant to suggest a law trapped in amber.” Rahimi, 602 U.S. at 691. Rather,

“the appropriate analysis involves considering whether the challenged

regulation is consistent with the principles that underpin our regulatory

tradition.”

Id. at 692 (emphasis added); see also id. (stating that the

Government need not identify a Founding-era “dead ringer” for, or a

“historical twin” of, a modern regulation (quotation omitted)). Cases like

Diaz, Schnur, and Williams demonstrate the existence of a Founding-era legal

tradition that was applied in a way “relevantly similar” to the application

today of § 922(g)(1) to Betancourt. Bruen, 597 U.S. at 29; see Rahimi, 602

U.S. at 692 (stating that the challenged regulation could pass constitutional

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Nation’s longstanding tradition of disarming persons with a violent criminal history

analogous to” the defendant’s. 132 F.4th at 869; see also id. (stating that historically,

Americans have disarmed felons for multiple reasons, “including when an individual is

deemed a threat to public safety”). It is unnecessary to repeat here the descriptions of the

Founding-era affray and “going armed” laws that formed the basis for this conclusion.

Those laws were ably detailed by the Schnur panel. See id. at 868–70; see also Rahimi, 602

U.S. at 693–98 (similar); Diaz, 116 F.4th at 470–71 (similar); United States v. Bullock, 123

F.4th 183, 185 (5th Cir. 2024) (per curiam) (similar).

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muster even if it “does not precisely match its historical precursors”). We

conclude based on that similarity that Betancourt’s as-applied challenge fails.

IV.

Conclusion

For the reasons above, we AFFIRM the judgment of the district

court.

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