Petition for Writ of Certiorari — Andre Edwards Sanchez, Petitioner v. United States

Supreme Court briefOct 29, 2025

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ANDRE EDWARDS SANCHEZ, PETITIONER,

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

MAUREEN SCOTT FRANCO

Federal Public Defender

CARL R. HENNIES

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

300 Convent Street, Suite 2300

San Antonio, Texas 78205

Carl_Hennies@fd.org

(210) 472-6700

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether 18 U.S.C. § 922(g)(3), the federal statute that

prohibits firearm possession by a person who “is an unlawful user

of … any controlled substance,” violates the Second Amendment

either facially or as applied to an individual who was under the

influence of marijuana at the time of possession.

2. Whether 18 U.S.C. § 922(g)(3)’s ban on firearm possession by

“an unlawful user” of a controlled substance—a term not defined in

the statute—is unconstitutionally vague.

RELATED PROCEEDINGS

United States District Court for the Western District of Texas:

United States v. Andre Edwards Sanchez,

No. 6:21-cr-213 (Apr. 19, 2023)

United States Court of Appeals for the Fifth Circuit:

United States v. Andre Edwards Sanchez,

No. 23-50293 (June 13, 2025)

iii

TABLE OF CONTENTS

Questions presented ......................................................................... i

Related proceedings ......................................................................... ii

Table of authorities ...........................................................................v

Introduction.......................................................................................1

Opinion below....................................................................................3

Jurisdiction........................................................................................3

Constitutional and statutory provisions involved...........................3

Statement ..........................................................................................4

A. Legal background. .........................................................4

B. Proceedings below. ........................................................6

Reasons for granting the petition ....................................................9

The Court should grant certiorari to consider

Sanchez’s facial and as-applied Second Amendment

challenges alongside Hemani. .............................................9

II. The Court should grant certiorari to determine

whether § 922(g)(3) is unconstitutionally vague. ............ 12

A. The courts of appeals’ interpretive glosses on

§ 922(g)(3) only add ambiguity to an already

vague statute. ............................................................. 14

B. The decision below is wrong. ..................................... 16

C. This is a critically important issue. .......................... 18

D. This case is an ideal vehicle. ...................................... 19

Conclusion ...................................................................................... 20

Appendix

Court of appeals opinion (June 13, 2025) ..................................... 1a

Court of appeals order

denying rehearing en banc (August 5, 2025) ......................... 7a

TABLE OF AUTHORITIES

Cases

Coates v. Cincinnati,

402 U.S. 611 (1971) .................................................................... 18

Colautti v. Franklin,

439 U.S. 379 (1979)..................................................................... 16

Connally v. Gen. Const. Co.,

269 U.S. 385 (1926) ................................................................ 6, 18

District of Columbia v. Heller,

554 U.S. 570 (2008)....................................................................... 4

Johnson v. United States,

576 U.S. 591 (2015) .......................................................... 6, 13, 16

NYSRPA v. Bruen,

597 U.S. 1 (2022) ...................................................................... 4, 5

United States v. Augustin,

376 F.3d 135 (3rd Cir. 2004) ....................................................... 15

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ......................................8, 10, 11, 15

United States v. Davis,

588 U.S. 445 (2019) ................................................................ 6, 16

United States v. Harris,

144 F.4th 154 (3d Cir. 2025) ...................................................... 20

United States v. Hemani,

2025 WL 354982 (5th Cir. Jan. 31, 2025) ................................. 10

United States v. Jackson,

280 F.3d 403 (4th Cir. 2002) ....................................................... 13

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) ...................................................................... 18

United States v. McCowan,

469 F.3d 386 (5th Cir. 2006) ....................................................... 15

United States v. Patterson,

431 F.3d 832 (5th Cir. 2005) ................................................. 13, 14

United States v. Purdy,

264 F.3d 809 (9th Cir. 2001) ....................................................... 15

United States v. Rahimi,

602 U.S. 680 (2024) ................................................................... 4, 5

United States v. Sanders,

43 F. App’x 249 (10th Cir. 2002).................................................. 14

United States v. Turnbull,

349 F.3d 558 (8th Cir. 2003)........................................................ 14

United States v. Williams,

553 U.S. 285 (2008) .............................................................. 17, 18

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008)..................................................................... 12

Constitutional Provisions

U.S. Const. amend. II ................................................................... 3, 4

U.S. Const. amend. V ................................................................... 3, 5

Statutes

18 U.S.C. § 922(g)(3) .................................................................... 3, 7

28 U.S.C. § 1254(1) .......................................................................... 3

Regulations

27 C.F.R. § 478.11 ........................................................................... 15

Other Authorities

Centers for Disease Control and Prevention,

Cannabis Facts and Stats (Mar. 7, 2025)................................... 19

Elliott Davis, Jr., et al., Where Is Weed Legal? A Guide to

Marijuana Legalization,

U.S. News & World Report (June 30, 2025)............................... 19

ANDRE EDWARDS SANCHEZ, PETITIONER,

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

Petitioner Andre Edwards Sanchez respectfully petitions for a

writ of certiorari to review the judgment of the United States Court

of Appeals for the Fifth Circuit.

INTRODUCTION

Section 922(g)(3)—which prohibits an “unlawful user” of any

controlled substance from possessing firearms—suffers from two

fatal constitutional flaws. Both warrant this Court’s review.

First, the statute violates the fundamental right to keep and

bear arms enshrined in the Second Amendment. The government

has failed to establish a historical tradition of disarming any drug

user, much less someone using marijuana, a substance used by

millions of Americans. This Court has already granted certiorari to

review the constitutionality of § 922(g)(3) in United States v.

Hemani, No. 24-1234. This case would make an ideal companion

case to Hemani because it raises Second Amendment challenges not

presented

there:

whether

§ 922(g)(3)

violates

the

Second

Amendment facially or, at the very least, as applied to someone who

was under the influence of marijuana at the time of possession.

Second, § 922(g)(3) is void for vagueness under the Due Process

Clause. The statute never defines what it means to be an “unlawful

user” of a controlled substance. The courts of appeals have long

recognized that this defect leaves the statute vulnerable to a

vagueness challenge absent judicially imposed interpretive glosses.

But the interpretive glosses that courts have added to try to salvage

the statute—which require that drug use be regular, take place over

an extended period, and happen close in time to possessing a

firearm—simply add nebulous requirements to an already unclear

statute. This case proves the point. The government’s meager

evidence that Sanchez regularly used marijuana—a handful of uses

on unspecified dates over the course of at least four years—

highlights just how vague both § 922(g)(3)’s plain text and the courts

of appeals’ “regularity” gloss actually are.

The Court should grant certiorari to review either question or

both questions. At the very least, the Court should hold the petition

pending resolution of Hemani.

OPINION BELOW

The Fifth Circuit’s opinion is not reported but is available at

2025 WL 1672342 and is reproduced at App. 1a–6a. The Fifth

Circuit’s order denying rehearing en banc, App. 7a, is unpublished.

JURISDICTION

The Fifth Circuit entered its judgment on June 13, 2025, and

denied rehearing en banc on August 5, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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.”

The Fifth Amendment provides: “No person shall … be

deprived of life, liberty, or property, without due process of law ….”

Section 922(g)(3) of Title 18 of the United States Code provides:

“It shall be unlawful for any person … who is an unlawful user of

… any controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802)) … to … possess in or

affecting commerce, any firearm or ammunition.”

STATEMENT

Legal background.

1. The Second Amendment protects “the right of the people to

keep and bear Arms.” U.S. Const. amend. II. In District of Columbia

v. Heller, this Court held that there is “no doubt … that the Second

Amendment confer[s] an individual right to keep and bear arms.”

554 U.S. 570, 595 (2008). And in NYSRPA v. Bruen, the Court

announced a framework for analyzing Second Amendment

challenges “centered on constitutional text and history.” 597 U.S. 1,

22 (2022). Under that approach, courts must ask whether the

“Second Amendment’s plain text covers an individual’s conduct.” Id.

at 17. If so, “the Constitution presumptively protects that conduct.”

Id. The burden then shifts to the government to justify its

regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Id. at 24. “Only then may

a court conclude that the individual’s conduct falls outside the

Second Amendment’s unqualified command.” Id. (cleaned up).

Bruen—and the Court’s later decision in United States v.

Rahimi, 602 U.S. 680 (2024)—explain that “the appropriate analysis

involves considering whether the challenged regulation is consistent

with the principles that underpin our regulatory tradition.” Rahimi,

602 U.S. at 692. “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. (quoting Bruen, 597 U.S.

at 29). The law need not be a “historical twin,” but analogical

reasoning is also not a “regulatory blank check.” Bruen, 597 U.S. at

30. “How” and “why” the regulations burden the right to bear arms

are central to this inquiry. Id. at 29; Rahimi, 602 U.S. at 692. These

considerations ask whether the modern and historical regulations

impose a “comparable burden” (the how) and “whether that burden

is comparably justified” (the why). Bruen, 597 U.S. at 29. “Even

when a law regulates arms-bearing for a permissible reason, … it

may not be compatible with the right if it does so to an extent beyond

what was done at the founding.” Rahimi, 602 U.S. at 692.

2. The Fifth Amendment provides that “[n]o person shall … be

deprived of life, liberty, or property, without due process of law.”

U.S. Const. amend. V. This Court has repeatedly recognized that

“the Government violates this guarantee by taking away

someone’s life, liberty, or property under a criminal law so vague

that it fails to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary enforcement.”

Johnson v. United States, 576 U.S. 591, 595 (2015). “The

prohibition of vagueness in criminal statutes ‘is a well-recognized

requirement, consonant alike with ordinary notions of fair play

and the settled rules of law,’ and a statute that flouts it ‘violates

the first essential of due process.’” Id. (quoting Connally v. Gen.

Const. Co., 269 U.S. 385, 391 (1926)). Apart from due process

concerns, “[v]ague laws also undermine the Constitution’s

separation of powers” by “threaten[ing] to hand responsibility for

defining crimes to relatively unaccountable police, prosecutors,

and judges.” United States v. Davis, 588 U.S. 445, 451 (2019).

Applying the vagueness doctrine, this Court has held that

criminal laws must “give ordinary people fair warning about what

the law demands of them” and avoid leaving them with “no sure

way to know what consequences will attach to their conduct.” Id.

at 448. “When Congress passes a vague law, the role of courts

under our Constitution is not to fashion a new, clearer law to take

its place, but to treat the law as a nullity and invite Congress to

try again.” Id. In short, “a vague law is no law at all.” Id. at 447.

Proceedings below.

1. When officers with the Waco Police Department arrested

Andre Edwards Sanchez in April 2021, he had a gun. C.A. ROA

297. He was also under the influence of marijuana. App. 2a n.1.

The government charged Sanchez with one count of possession of

a firearm by an unlawful user of a controlled substance, in

violation of 18 U.S.C. § 922(g)(3). C.A. ROA 10.

2. Sanchez moved to dismiss the indictment on two grounds.

C.A. ROA 79–100. First, he argued that § 922(g)(3) violates the

Second Amendment—both facially and as applied to him—under

the two-step framework set out by this Court in Bruen. Id. at 79–

100. Sanchez argued that the government could not show that the

statute aligns with the Nation’s historical tradition of firearm

regulation. Id. at 82–88. Second, Sanchez argued that § 922(g)(3)

violates the Due Process Clause because it is unconstitutionally

vague. Id. at 88–100. Sanchez asserted that the statute does not

provide adequate notice of what acts are prohibited because it does

not define what it means to be an “unlawful user” of a controlled

substance. Id. at 89–94.

In response, the government claimed that drug users are not

included in “the people” protected by the Second Amendment (C.A.

ROA 115–19) and argued that § 922(g)(3) aligned with a

“longstanding tradition of categorically restricting the gun rights of

groups viewed by legislatures as dangerous or unvirtuous” (id. at

119–27). The government also argued that § 922(g)(3) was not

unconstitutionally vague as applied to Sanchez. Id. at 127–28. As

evidence that Sanchez was a regular drug user, the government

pointed to a statement by Sanchez’s grandmother that he had been

using Xanax recently and three undated videos posted to social

media showing him either using drugs or referring to drugs. Id. at

112, 127–28.

The district court denied Sanchez’s motion to dismiss. C.A. ROA

176–83. The court held that § 922(g)(3) is consistent with the

Nation’s historical tradition of firearm regulation but cited no

analogous statutes. Id. 181–82. The court also held that the statute

was not unconstitutionally vague because an ordinary person would

understand that Sanchez’s conduct—including being “in use of a

controlled substance at the time he was found in possession of a

firearm”—fell within the statute’s text. Id. at 182–83.

3. Sanchez appealed, and the Fifth Circuit affirmed. App. 1a–

6a.

First, the court held that Sanchez’s Second Amendment

challenge was foreclosed by circuit precedent. App. 3a. In United

States v. Connelly, 117 F.4th 269 (5th Cir. 2024), the court held that

§ 922(g)(3)

“is

facially

constitutional

under

the

Second

Amendment” because “‘our history and tradition of firearms

regulation show that there are indeed some sets of circumstances

where § 922(g)(3) would be valid, such as banning presently

intoxicated persons from carrying weapons.’” Id. at 3a–4a (quoting

Connelly, 117 F.4th at 282). Although the court noted that these

statements in Connelly “were not necessary to reach its ultimate

ruling,” the court still considered them “binding precedent.” Id. at

4a & n.2.

Second, the court held that § 922(g)(3) is not unconstitutionally

vague. App. 4a–6a. The court cited the fact that Sanchez was under

the influence of marijuana when he possessed the gun, a prior

juvenile adjudication for possession of marijuana four years

earlier, and social media posts in which he appeared intoxicated.

Id. at 5a–6a. “Taken together,” the court explained, “these facts

support a reasonable inference that Sanchez’s drug use was

regular and occurred in sufficient temporal proximity to his

possession of a firearm.” Id. at 6a.

4. The Fifth Circuit denied Sanchez’s petition for rehearing en

banc. App. 7a.

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari to consider

Sanchez’s facial and as-applied Second Amendment

challenges alongside Hemani.

This Court has granted certiorari in United States v. Hemani,

No. 24-1234, another case presenting a Second Amendment

challenge to § 922(g)(3). There, the question presented is whether

§ 922(g)(3) “violates the Second Amendment as applied to

respondent,” who was “not presently under an impairing influence”

when he was arrested or possessed a gun. Pet. for Writ of Cert. i, 6–

7, United States v. Hemani, No. 24-1234 (U.S. June 2, 2025) (cleaned

up). This is an ideal companion case because Sanchez admitted that

he was under the influence of marijuana when he possessed a

firearm. See App. 2a n.1. So this case presents a distinct—although

equally important—as-applied challenge from the one the Court will

consider in Hemani. Answered together, those challenges would

clarify the scope of § 922(g)(3) as applied to millions of Americans.

And this case also presents a facial challenge not at issue in Hemani.

Considering this case alongside Hemani makes sense for

another reason. Both here and in Hemani, the Fifth Circuit held

that it was bound by its Second Amendment analysis in United

States v. Connelly, 117 F.4th 269 (5th Cir. 2024). See App. 2a;

United States v. Hemani, 2025 WL 354982, at *1 (5th Cir. Jan. 31,

2025). Connelly decided that “banning presently intoxicated

persons from carrying weapons” is consistent with the Second

Amendment—so § 922(g)(3) is facially constitutional—but held

that history did not support disarming someone when there was

“no evidence that she was intoxicated at the time she was

arrested.” 117 F.4th at 282. The latter holding—which the Fifth

Circuit got right—will be reviewed in Hemani. The earlier

holding—which is badly flawed—is at issue here.

The Fifth Circuit’s conclusion that there is a tradition of

banning presently intoxicated persons from carrying weapons is not

only wrong, but also irreconcilable with that court’s own historical

analysis. In Connelly, the court examined the government’s

proposed historical analogues and concluded that there was “no

Founding-era law or practice of disarming ordinary citizens for

drunkenness.” 117 F.4th at 280. And even though the court

acknowledged that three Reconstruction-era laws and a 20thcentury law barring citizens from carrying guns while drunk may

“come closer to supporting § 922(g)(3),” it explained that “[o]ffering

three laws passed scores of years post-Ratification (and a fourth

passed nearly half a century beyond that) misses the mark by a wide

margin.” Id. at 281. After rejecting the government’s historical

evidence, however, the court never explained what historical laws

supported its conclusion that § 922(g)(3) is valid as applied to

presently intoxicated individuals.

Indeed, that issue was not even presented in Connelly because

the defendant there was not intoxicated. 117 F.4th at 282. So, as the

court acknowledged below, Connelly’s conclusion about intoxicated

individuals was “not necessary to reach its ultimate ruling.” App. 4

n.2. In other words, the Fifth Circuit in Connelly did exactly what

this Court has repeatedly cautioned against doing when deciding

facial challenges to a statute: it “anticipate[d] a question of

constitutional law in advance of the necessity of deciding it” and

“formulate[d] a rule of constitutional law broader than is required

by the precise facts to which it is to be applied.” Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008)

(cleaned up).

Because the Court will already be reviewing the Fifth Circuit’s

decision in Connelly and grappling with the historical justifications

for § 922(g)(3), granting plenary review in this case and

consolidating it with Hemani would allow the Court to provide more

fulsome guidance to lower courts about the constitutionally

permissible scope of § 922(g)(3)—if it is constitutional at all—and

avoid piecemeal litigation. And plenary review is especially

appropriate

because

the

Fifth

Circuit’s

decision

directly

contravenes this Court’s precedent about anticipating questions of

constitutional law. In the alternative, the Court should hold this

petition pending its decision in Hemani.

II.

The Court should grant certiorari to determine

whether § 922(g)(3) is unconstitutionally vague.

Section 922(g)(3) is unconstitutionally vague because “it fails

to give ordinary people fair notice of the conduct it punishes” and

is “so standardless that it invites arbitrary enforcement.” Johnson

v. United States, 576 U.S. 591, 595 (2015). Although the statute

prohibits firearm possession by an “unlawful user” of any

controlled substance, it does not define what it means to be an

unlawful user. Unlike its statutory neighbors in § 922(g), each of

which includes a specific triggering event that makes it clear

exactly when the prohibition on gun possession begins, § 922(g)(3)

provides no hint at when a person becomes—or ceases to be—an

“unlawful user” who is prohibited from possessing firearms.

Courts of appeals have long acknowledged that “the exact reach

of the statute is not easy to define.” United States v. Jackson, 280

F.3d 403, 406 (4th Cir. 2002). But the patchwork of judicial glosses

that the courts of appeals have adopted to try to salvage § 922(g)(3)

are themselves vague and provide no notice whether someone is an

“unlawful user.” This case proves the point. Like other courts of

appeals, the Fifth Circuit requires the government to show

“regularity of drug use.” App. 5a (quoting United States v. Patterson,

431 F.3d 832, 839 (5th Cir. 2005)). But the court below relied on only

a handful of occasions of marijuana use scattered over four years to

determine that Sanchez’s “drug use was regular.” App. 5a. The

statute and the interpretive glosses are hopelessly vague, and this

Court’s intervention is needed to ensure that § 922(g)(3)’s arbitrary

standard does not continue to subject individuals like Sanchez to

criminal liability without fair notice.

The courts of appeals’ interpretive glosses on

§ 922(g)(3) only add ambiguity to an already

vague statute.

Because § 922(g)(3) does not define what it means to be an

“unlawful user,” “courts generally agree the law runs the risk of

being unconstitutionally vague” without judicially created limiting

constructions. United States v. Turnbull, 349 F.3d 558, 561 (8th Cir.

2003), vacated on other grounds, 543 U.S. 1099 (2005); see United

States v. Espinoza-Roque, 26 F.4th 32, 35 (1st Cir. 2022) (narrowing

limitations are “necessary to avoid unconstitutional vagueness in

the statutory definition” (cleaned up)); United States v. Sanders, 43

F. App’x 249, 256 (10th Cir. 2002) (acknowledging that § 922(g)(3)

would “probably” be unconstitutionally vague without a narrowing

construction).

So the courts of appeals have attempted to save § 922(g)(3) by

imposing interpretive glosses on “unlawful user” that generally

focus on “contemporaneousness and regularity.” Patterson, 431 F.3d

at 838–39 (collecting cases). Under this formulation, the

government must meet two additional requirements to establish

that an individual is an “unlawful user.” First, the person must have

engaged in drug use “proximate to or contemporaneous with the

possession of a firearm.” See, e.g., United States v. McCowan, 469

F.3d 386, 392 n.4 (5th Cir. 2006) (quoting United States v. Augustin,

376 F.3d 135, 138–39 (3rd Cir. 2004)); United States v. Purdy, 264

F.3d 809, 812 (9th Cir. 2001) (drug use must be “close in time” to

gun possession). Second, the government must show that the person

“took drugs with regularity, over an extended period of time.” See,

e.g., Purdy, 264 F.3d at 813; McCowan, 469 F.3d at 392 (describing

“a pattern of use over an extended period of time”).

Setting aside variances in how the courts define these extratextual glosses, these interpretive constructions raise more

questions than they answer. As the Fifth Circuit has explained, “the

temporal nexus is most generously described as vague” because “it

does not specify how recently an individual must ‘use’ drugs to

qualify for the prohibition.” Connelly, 117 F.4th at 282. “Stunningly,

an inference of ‘current use’ can be drawn even from ‘a conviction

for use or possession of a controlled substance within the past year.’”

Id. (quoting 27 C.F.R. § 478.11). And the regularity requirement is

no clearer. When does drug use become “regular”? Daily use?

Weekly? Monthly? And what is considered an “extended period of

time”? A week? A month? A year? Can someone who uses a

controlled substance once a month for three months buy a gun? If

not, how long after the last use does he need to wait? Can someone

who uses marijuana daily, but only for a week, legally possess a

firearm on the last day they use it? What about a week later? A

month later? Neither the statute itself nor the judicially created

interpretive glosses provide any hint of an answer to these

questions. In trying to clarify the statute, courts have only added

layers of ambiguity.

As this Court has recognized, “repeated attempts and repeated

failures to craft a principled and objective standard … confirm [a

statute’s] hopeless indeterminacy.” Johnson, 576 U.S. at 598. So too

here. And the vagueness problem is especially problematic here

because “the uncertainty induced by the statute threatens to inhibit

the exercise of constitutionally protected rights.” Colautti v.

Franklin, 439 U.S. 379, 391 (1979). Under § 922(g)(3), ordinary

people are left to guess whether their drug use is regular enough,

prolonged enough, and close enough in time to when they wish to

possess a firearm such that they can legally exercise their

fundamental right to keep and bear arms or whether they will be

subject to criminal liability. This Court should treat § 922(g)(3) “as

a nullity and invite Congress to try again.” Davis, 588 U.S. at 448.

The decision below is wrong.

The Fifth Circuit’s decision below highlights just how vague

§ 922(g)(3) and its accompanying judicial glosses are. Although

Sanchez’s marijuana use was contemporaneous with his gun

possession, the court’s conclusion that his “drug use was regular”

(App. 6a) demonstrates the “indeterminacy of precisely what that

fact is.” United States v. Williams, 553 U.S. 285, 306 (2008).

The court relied on the following facts to determine that

Sanchez’s marijuana use was “regular”:

• he was “in possession of and tested positive for marijuana at

the time he was found with the gun on April 31, 2021,” after

which he stated that a blood test would “break the ‘weed’

scales”;

• “he had one prior juvenile adjudication for possession of

marijuana in 2017”; and

• an unspecified number of “social media posts” on unspecified

dates, “including his profile picture in which he appeared to

be smoking a marijuana cigarette and videos of him with

captions indicating his drug intoxication.”

App. 6a.

“Taken together,” the court concluded, “these facts support a

reasonable inference that Sanchez’s drug use was regular.” App.

6a. But the test for vagueness is not whether certain facts can

support a reasonable inference of a statutory requirement. See

Williams, 553 U.S. at 306 (“What renders a statute vague is not

the possibility that it will sometimes be difficult to determine

whether the incriminating fact it establishes has been proved ….”).

If that were the test, none of the statutes this Court has struck

down as vague would, in fact, be vague. After all, someone could

reasonably infer that a certain rate was “unjust or unreasonable,”

United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921); that

particular conduct was “annoying,” Coates v. Cincinnati, 402 U.S.

611, 616 (1971); or that a specific area “constitute[s] the locality

where a given piece of work is being done,” Connally v. Gen. Const.

Co., 269 U.S. 385, 394 (1926). Rather, the problem with a vague

statute is “the indeterminacy of precisely what [a] fact is,”

Williams, 553 U.S. at 306, such that “men of common intelligence

must necessarily guess at its meaning and differ as to its

application,” Connally, 269 U.S. at 391.

Whether

the

government’s

evidence—Sanchez

using

marijuana on at most a handful of occasions over a period spanning

at least four years—establishes regular drug use is not a “true-orfalse determination” but requires a “subjective judgment.”

Williams, 553 U.S. at 306. So the Fifth Circuit’s conclusion that

§ 922(g)(3) is not vague as applied to Sanchez was wrong.

This is a critically important issue.

This is a critically important issue because § 922(g)(3) disarms

“unlawful user[s] of … any controlled substance,” including—like

Sanchez—marijuana. Despite being illegal under federal law,

nearly half of all states—plus D.C. and Guam—have legalized the

recreational use of marijuana. Elliott Davis, Jr., et al., Where Is

Weed Legal? A Guide to Marijuana Legalization, U.S. News &

World Report (June 30, 2025). Many more states have legalized

marijuana for medical use. And millions of Americans use

marijuana, with nearly a quarter of the population using it in 2021

alone. See Centers for Disease Control and Prevention, Cannabis

Facts and Stats, https://www.cdc.gov/cannabis/data-research/factsstats/ (Mar. 7, 2025). But because § 922(g)(3) is so open-ended and

ambiguous, those millions of Americans are left in the dark about

whether they are able to exercise their fundamental right to keep

and bear arms.

D. This case is an ideal vehicle.

This case presents an ideal vehicle for addressing whether

§ 922(g)(3) is unconstitutionally vague. There are no jurisdictional

problems, factual disputes, or preservation issues. Sanchez

thoroughly briefed his vagueness challenge both in the district

court and on appeal. The district court squarely addressed his

challenge, C.A. ROA 182–83, as did the Fifth Circuit, App. 4a–6a.

There is at least one other pending petition presenting the

same question of whether § 922(g)(3) is unconstitutionally vague.

See Pet. for Writ of Cert. i, Harris v. United States, No. 25-372 (U.S.

Sept. 26, 2025). Harris, however, is a suboptimal vehicle for

deciding this issue. The petitioner there “admitted smoking

marijuana at least several times per week around when he bought

the guns.” United States v. Harris, 144 F.4th 154, 167 (3d Cir.

2025). So although acknowledging that “[f]uture cases will require

closer calls about how often and how recently one must use a drug

to count as an ‘unlawful user,’” the Third Circuit held that the

question there was “not close.” Id. This case, by contrast, is a

borderline case—at best—given the paucity of the government’s

evidence that Sanchez regularly used marijuana. See supra 16–18.

So it presents the best vehicle for determining whether § 922(g)(3)

is unconstitutionally vague.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.