Petition for Writ of Certiorari — Frankie Centeno, Petitioner v. United States

No. 25-_____

_________________________________________________________________

_________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________________

FRANKIE CENTENO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DARRELL FIELDS

Counsel of Record

FEDERAL DEFENDERS OF NEW YORK, INC.

APPEALS BUREAU

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No. (212) 417-8742

Email: darrell_fields@fd.org

Attorney for Petitioner

Frankie Centeno

Questions Presented

1. Whether 18 U.S.C. § 922(g)(1) is unconstitutional on its

face or as applied to Petitioner because, consistent with the

Second Amendment, the federal government may not permanently disarm

a citizen based exclusively on a prior felony conviction.

2. Under Esteras v. United States, 145 S. Ct. 2031 (2025),

should Petitioner’s prison sentence for violating a condition of

supervised release be vacated because the district court relied on

18 U.S.C. § 3553(a)(2)(A).

i

Table of Contents

Page

TO THE HONORABLE, THE CHIEF JUSTICE OF THE

UNITED STATES AND THE ASSOCIATE JUSTICES

OF THE UNITED STATES SUPREME COURT. . . . . . . . . . . . . . . 1

Opinion and Order Below . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . 1

Relevant Constitutional and Statutory Provisions. . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

A.

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

1. The Bruen, Second Amendment, issue . . . . . . . . 1

2. The Esteras issue. . . . . . . . . . . . . . . . . 3

B.

Petitioner’s instant conviction under

Section 922(g)(1) . . . . . . . . . . . . . . . . . . 5

C.

The violation of supervised release (“VOSR”)

resulting from the arrest for the § 922(g)(1)

offense . . . . . . . . . . . . . . . . . . . . . . . 6

D.

The joint sentencing (on June 8, 2023) for the

922(g)(1) conviction and for the VOSR . . . . . . . . 6

E.

Petitioner’s appeal to the Second Circuit Court

of Appeals. . . . . . . . . . . . . . . . . . . . . . 7

Reasons for Granting the Writ . . . . . . . . . . . . . . . . . 9

I.

The Court should grant certiorari to address

the constitutionality of 18 U.S.C. § 922(g)(1). . . . 9

A.

The circuits are divided over the important

and recurrent question of § 922(g)(1)’s

constitutionality. . . . . . . . . . . . . . . . 9

B.

The case presents the opportunity to address

the issue. . . . . . . . . . . . . . . . . . .

ii

12

C.

The Circuit’s Zherka decision is wrong . . . .

12

This Court’s decision in Esteras requires that

the revocation of Petitioner’s supervised

release, and the imposition of an above

Guidelines sentence of 24 months in prison, be

vacated . . . . . . . . . . . . . . . . . . . . . .

15

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . .

17

II.

iii

Table of Authorities

Cases

Pages

District of Columbia v. Heller,

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

13

Esteras v. United States,

145 S. Ct. 2031 (2025). . . . . . . . . . . . . 4, 5, 8, 15, 16

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019). . . . . . . . . . . . . . . .

14

New York State Rifle and Pistol Association,

Incorporated v. Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . 2, 13, 14

Range v. Att’y Gen. United States,

124 F.4th 218 (3d Cir. 2024). . . . . . . . . 2, 10, 12, 13, 15

United States v. Betancourt,

139 F.4th 480 (5th Cir. 2025) . . . . . . . . . . . . . . . . 3

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) . . . . . . . . . . . . . . 3, 10

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) . . . . . . . . . . . . . . 2, 11

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025). . . . . . . . . . . . . . 2, 11

United States v. Hoyle,

148 F.4th 396 (6th Cir. 2025) . . . . . . . . . . . . .

15, 16

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) . . . . . . . . . . . . . . 2, 11

United States v. Jackson,

85 F.4th 468 (8th Cir. 2023). . . . . . . . . . . . . . . .

14

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024). . . . . . . . . . . . . . 2, 11

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . 2, 10, 12

iv

United States v. Williams,

113 F.4th 637 (2024). . . . . . . . . . . . . . . . . . . 3, 11

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025) . . . . . . . . . . . . . 2, 11

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) . . . . . . . . . . . . .

2, 8, 11

Statutes

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 922(g)(1) . . . . . . . . . . . . . . . . . . .

6, 9

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3553(a)(2)(A) . . . . . . . . . . . . . . 4, 5, 8, 16

18 U.S.C. § 3583(e) . . . . . . . . . . . . . . . . . .

1, 8, 16

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

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . 1

Rules

Fed.R.Crim.P. 12(b) . . . . . . . . . . . . . . . . . . . . . . 6

Other Authorities

Joseph G.S. Greenlee, The Historical Justification for

Prohibiting Dangerous Persons from Possessing Arms,

20 Wyo. L. Rev. 249, 283 (2020) . . . . . . . . . . . . . . .

13

C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?,

32 Harv. J.L. & Pub. Pol’y 695, 708 (2009). . . . . . . . . .

14

v

TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES AND THE

ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT:

Opinion and Order Below

The

Second

Circuit’s

summary

order

is

reprinted

in

the

Appendix to the Petition (“Pet.App.”) appended at Pet.App.1a-4a and

available at 2025 WL 1806227. The Second Circuit’s order denying

rehearing and rehearing en banc appears at Pet.App.5a.

Jurisdictional Statement

The Second Circuit issued its decision and entered judgment on

July 1, 2025. The Second Circuit’s order denying rehearing and

rehearing en banc was issued on September 17, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1). The Second Circuit had

jurisdiction

under

28

U.S.C.

§

1291.

The

district

court

had

jurisdiction under 18 U.S.C. § 3231.

Relevant Constitutional and Statutory Provisions

The Second Amendment is reproduced at Pet.App.6a. 18 U.S.C. §

922(g) is reproduced at Pet.App.7a. In addition, 18 U.S.C. §

3583(e) is reproduced at Pet.App.8a. And 18 U.S.C. § 3553(a) is

reproduced at Pet.App.9a.

STATEMENT OF THE CASE

A.

Introduction

1. The Bruen, Second Amendment, issue

This

case

presents

an

important

constitutional

question

subject to an entrenched circuit split: Whether, consistent with

1

the Second Amendment, the federal government may permanently disarm

a

United

States

citizen

based

exclusively

on

a

prior

felony

conviction?

This split developed in the wake of the Court’s decision in

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S.

1 (2022).

After Bruen, and this Court’s subsequent decision in

United States v. Rahimi, 602 U.S. 680 (2024), the Third Circuit

holds that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to

individuals with certain prior felony convictions. See Range v.

Att’y Gen. United States, 124 F.4th 218, 222 (3d Cir. 2024) (en

banc).

But other federal circuits hold the opposite. The Second

Circuit has ruled that § 922(g)(1) is constitutional as applied to

every person who has a prior felony conviction of any kind. See

Zherka v. Bondi, 140 F.4th 68, 95 (2d Cir. 2025). The Second

Circuit

refused

to

permit

any

“case-by-case,

‘as

applied’

exceptions” to § 922(g)(1)’s prohibitions. Id. at 95-96.

Zherka aligns the Second Circuit with the Fourth, Eighth,

Ninth, Tenth, and Eleventh Circuits. See United States v. Hunt, 123

F.4th 697, 703-04 (4th Cir. 2024); United States v. Jackson, 110

F.4th 1120, 1125 (8th Cir. 2024); United States v. Duarte, 137

F.4th 743, 748 (9th Cir. 2025); Vincent v. Bondi, 127 F.4th 1263,

1266 (10th Cir. 2025); United States v. Dubois, 139 F.4th 887, 893

(11th Cir. 2025).

2

Meanwhile, the Fifth and Sixth Circuits take a different

approach. Per the Sixth Circuit, “most applications of § 922(g)(1)

are constitutional,” but the statute is susceptible to as-applied

challenges by people whose “entire criminal record” shows that they

are not “dangerous.” United States v. Williams, 113 F.4th 637,

657-58 (2024). Similarly, the Fifth Circuit allows for as-applied

constitutional challenges. See United States v. Betancourt, 139

F.4th 480, 484 (5th Cir. 2025); United States v. Diaz, 116 F.4th

458, 471 (5th Cir. 2024).

The Court should, therefore, grant Mr. Centeno’s certiorari

petition.

Alternatively,

disposition

of

several

the

Court

other

should

petitions

hold

it

raising

pending

the

same

constitutional question. For example, the certiorari petitions in

Vincent v. Bondi, No. 24-1135, Zherka v. Bondi, No. 25-269, and

Duarte v. United States, No. 25-425, as well as many others, were

all distributed for conference on December 12, 2025. Should the

Court grant certiorari in any of those cases, or any other pending

case presenting a Second Amendment challenge to Section 922(g)(1),

it should hold Mr. Centeno’s petition pending the Court’s decision.

2.

The Esteras issue

The district court sentenced Frankie Centeno for both the

instant substantive offense (of violating § 922(g)(1)) and the

resulting violation of his supervised release violation (imposed

for a prior offense) in a single sentencing proceeding.

3

While Centeno’s appeal was pending, this Court decided Esteras

v. United States, 145 S. Ct. 2031 (2025), which held that that a

district court revoking supervised release cannot consider the

factors of 18 U.S.C. § 3553(a)(2)(A) because that provision is

addressed to “the retributive purposes of sentencing” on the

underlying crime of conviction. Id. at 2039-41.1 And retribution is

not an appropriate consideration in the context of supervised

release, which “is not a punishment in lieu of incarceration” for

the original offense, but is addressed to goals of rehabilitation

and providing “postconfinement assistance.” Id. at 2041.

During the pre-Esteras sentencing in this case, the district

court made no distinction between the 3553(a) factors it applied in

fashioning the sentences for the § 922(g) offense and for the

violation of supervised release. The record, therefore, does not

demonstrate that the district court applied the § 3553(a)(2)(A)

factors only in sentencing on the substantive offense, but not on

the

supervised-release

violation.

And

pre-Esteras,

it

was

permissible, under Second Circuit law, for courts to consider §

3553(a)(2)(A) factors in determining whehter to revoke sentences

for

supervised

release

and

fashioning

1

the

sentence

for

a

The provision addresses “the need for the sentence imposed

... to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense.” §

3553(a)(2)(A).

4

violation.2 In light of Esteras, therefore, this Court should GVR:

grant the petition, vacate Centeno’s revocation sentence, and

remand for further proceedings.

B.

Petitioner’s instant conviction under Section 922(g)(1)

Petitioner Frankie Centeno “has always lived in neighborhood

where violence is common due to limited economic circumstances.” At

age 18, in June 2001, when he was unarmed, and in the Bronx, New

York, a stranger with whom he had argued, fired a gun at him,

striking

Centeno

in

the

shoulder,

but

killing

"an

innocent

woman[.]” See Presentence Report ("PSR") at ¶69. The next year, in

July 2002, when Centeno was age 19, he was the victim of an

attempted robbery and was shot in the lower back. PSR at ¶70. He

underwent rehabilitation “for nearly one year” “to relearn [how] to

walk” and still “walks with a limp.” Id.

In the two decades since these shootings, Centeno was arrested

for possessing a firearm on five occasions (including the instant

offense). But two of the firearms were found in a residence, and it

has never been alleged that he discharged any firearm or harmed

anyone. PSR at ¶¶ 40, 44, 46. He also had prior convictions for

possessing

a

controlled

substance

and

for

possessing

stolen

property.

On March 27, 2022, Centeno was arrested for the instant

2

Esteras, id. at 2038 n.1 (noting that the Second Circuit

had “held that district courts may consider § 3553(a)(2)(A)”)

(citation omitted).

5

offense, and he was charged, under 18 U.S.C. § 922(g)(1), in a

one-count indictment, with

possessing a firearm, after being

convicted of an offense punishable by imprisonment for a term

exceeding one year.

Centeno

moved

to

dismiss

the

§

922(g)(1)

charge,

under

Fed.R.Crim.P. 12(b), arguing that § 922(g)(1) violated his Second

Amendment rights, based on this Court’s decision in Bruen.

The district court denied Centeno's motion. He then pleaded

guilty (in February 2023), without a plea agreement. He admitted

that he had possessed a firearm (on March 27, 2022), in the Bronx,

and that he had previously been convicted of an offense for which

he had actually served a prison term of more than one year.

C.

The violation of supervised release (“VOSR”) resulting

from the arrest for the § 922(g)(1) offense

In March 2022, Centeno was on supervised release, from a 2018

conviction, also for possessing a firearm. His new arrest in 2022

for

possessing of a firearm and a small quantity of drugs,

resulted in the Probation Department filing a Violation Report with

the district court, alleging that he had violated conditions of

supervised release.

D.

The joint sentencing (on June 8, 2023) for the 922(g)(1)

conviction and for the VOSR

On June 8, 2023, the district court held a joint sentencing

hearing covering both the substantive § 922(g)(1) charge and the

VOSR.

Centeno

admitted

to

violating

6

conditions

of

supervised

release (that had been imposed in 2018) by possessing a handgun and

a small quantity of cocaine.

The court then imposed sentence, without specifying whether

different sentencing factors applied to the § 922(g) sentence and

the revocation sentence. Its entire discussion of its reasons for

imposing the two prison sentences covers only three relatively

short paragraphs, in which it states that Centeno had a record “of

constant violations of the law of the most serious kind” and that

his “last” felon-in-possession offense (back in 2018) was a serious

offense because a “silencer” had been attached to that firearm. The

court also noted that Centeno had been “given an extraordinarily

lenient sentence” on the prior firearms offense. It also cited the

need for “individual deterrence” and “general deterrence.”

The district court imposed a 51-month Guidelines sentence on

the § 922(g)(1) conviction.3 It varied upward on the VOSR (from the

Guidelines

range

of

8

to

14

months)

and

imposed

a

maximum

(consecutive) prison sentence of 24 months, making the total prison

sentence 75 months.

E.

Petitioner’s

Appeals

appeal

to

the

Second

Circuit

Court of

The Second Circuit noted that, because Centeno “raised his

constitutional challenge below, we review de novo a district

court’s determination that the application of a law does not

3

The applicable United States Sentencing Guidelines range

was 41 to 51 months’ imprisonment.

7

violate the Second Amendment.” Pet.App.2a. The Circuit, however,

rejected Centeno’s argument based on its post-Bruen decision in

Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025). It stated that

“Centeno’s argument is foreclosed by our Court’s recent decision in

Zherka v. Bondi[.]” Pet.App.2a.

The Circuit also affirmed the VOSR sentence. Centeno had

argued, among other things, that the district court improperly

focused

on

"retribution"

(because

he

had

been

insufficiently

punished for the underlying 2018 offense) in imposing a maximum 24month

prison sentence for the VOSR.

He argued that 18 U.S.C. §

3583(e), which lists the provisions of § 3553 that apply in

revocation proceedings, excludes § 3553(a)(2)(A), which requires a

court to consider the goal of retribution: i.e., the need for a

sentence “to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense.”

The Circuit noted this Court’s decision in Esteras and its

“holding that a district court may not consider retribution vis-avis the defendant’s underlying criminal offense when imposing a

revocation sentence.” Pet.App.3a. But it affirmed nonetheless,

stating that the district court imposed the prison term, not as

retribution for the prior conviction, but “for the breach of trust

‘reflected in the ‘extraordinarily lenient sentence’ imposed in

connection with [that] prior conviction.” Id.

8

Reasons for Granting the Writ.

I.

The Court should grant certiorari to

constitutionality of 18 U.S.C. § 922(g)(1)

The

Second

Circuit’s

Zherka

decision

address the

entrenched

an

acknowledged circuit split. Most Circuits have confronted asapplied challenges to Section 922(g)(1). But they splinter on the

application of as-applied challenges. Seven circuits have adopted

a categorical rule barring as-applied challenges to all Section

922(g)(1)

prosecutions,

effectively

granting

legislators

unreviewable discretion to disqualify categories of people from

possessing firearms. Three circuits have rejected that approach,

requiring that the circuits justify even categorical bans. And even

among the different camps, internal divisions exist.

The

schism

warrants

this

Court’s

consideration

and

the

granting of this petition. In the alternative, this Court should

hold this petition pending the disposition of the many other

petitions presenting the question of 922(g)(1)’s constitutionality,

including Vincent, Zherka, and Duarte.

A.

The

The circuits are divided over the important

and recurrent question of § 922(g)(1)’s

constitutionality.

circuits

are

intractably

divided

over

the

constitutionality of § 922(g)(1) and over whether individuals may

bring as-applied constitutional challenges to § 922(g)(1).

Sitting en banc, the Third Circuit applied this Court’s

9

decisions in Bruen and Rahimi to hold that § 922(g)(1) cannot

constitutionally bar the right to possess a firearm to certain

people with nonviolent criminal records. See Range v. Att’y Gen.

United States, 124 F.4th 218 (3d Cir. 2024) (en banc). According to

the

Third

Circuit,

“Bruen

abrogated

our

Second

Amendment

jurisprudence,” such that courts “no longer conduct means-end

scrutiny”; individuals convicted of felonies “remain[] among ‘the

people’” protected by the Second Amendment; and “the Government has

not shown that the principles underlying the Nation’s historical

tradition

of

firearms

regulation

support

depriving”

certain

nonviolent felons of the “Second Amendment right to possess a

firearm.” Id. at 222, 232. In Range, the Third Circuit specifically

held that a person with a prior conviction for felony food stamp

fraud could not be constitutionally prevented from obtaining a

firearm. See id. at 223.

Like the Third Circuit, the Fifth and Sixth Circuits have

recognized that defendants can mount as-applied challenges to §

922(g)(1). In United States v. Diaz, the Fifth Circuit held that

Bruen and Rahimi abrogated the circuit’s prior precedent deeming §

922(g)(1) constitutional. 116 F.4th 458, 465 (5th Cir. 2024). Diaz

rejected the defendant’s challenge to § 922(g)(1), but did not

foreclose

“future

different

predicate

as-applied

challenges

convictions,”

by

emphasizing

defendants

that

with

“[s]imply

classifying a crime as a felony does not meet the level of

10

historical rigor required by Bruen and its progeny.” Id. at 469-70

& n.4.

The Sixth Circuit similarly holds that “Bruen requires a

history-and-tradition analysis” different from that previously

employed by courts and that, under this analysis, there may be

as-applied Second Amendment challenges to § 922(g)(1). United

States v. Williams, 113 F.4th 637, 657-58 (2024). The circuit

opined

that

“most

applications

of

§

922(g)(1)”

will

be

constitutional, but that “individuals could demonstrate that their

particular possession of a weapon posed no danger to peace.” Id. at

657.

Indeed,

without

the

opportunity

for

such

as-applied

challenges, the Sixth Circuit found that § 922(g)(1) “would abridge

non-dangerous felons’ Second Amendment rights.” Id. at 661.

The

Second,

Fourth,

Eighth,

Ninth,

Tenth,

and

Eleventh

Circuits have all reached the opposite conclusion. According to

these

circuits,

§

922(g)(1)

is

constitutional

in

all

its

applications —— even as applied to someone who has only remote,

nonviolent prior felony convictions, and who can establish that he

is not dangerous.4 These circuits do not allow any as-applied

challenges based on the nature of someone’s prior felony, or any

4

See Zherka, 140 F.4th at 95; United States v. Hunt, 123

F.4th 697, 703-04 (4th Cir. 2024); United States v. Jackson, 110

F.4th 1120, 1125 (8th Cir. 2024); United States v. Duarte, 137

F.4th 743, 748 (9th Cir. 2025); Vincent v. Bondi, 127 F.4th 1263,

1266 (10th Cir. 2025); United States v. Dubois, 139 F.4th 887, 893

(11th Cir. 2025).

11

other circumstance.

* * *

In sum, after the decisions in Bruen and Rahimi, at least nine

circuits

have

addressed

§

922(g)(1)’s

constitutionality

in

precedential or en banc decisions, and the circuits remain divided.

Three circuits allow as-applied challenges based on the defendant’s

specific

record

categorically

and

reject

characteristics,

such

challenges.

while

This

six

split

circuits

has

proven

intractable and should be resolved by this Court.

B.

The case presents the opportunity to address

the issue.

This case is a clean opportunity to resolve this circuit

conflict. Petitioner Centeno’s only conviction, in this case, is a

violation of § 922(g)(1), for which he remains incarcerated. He

raised this constitutional claim in the district court and to the

Second Circuit. And although the circuit decided his case by

summary order, it explicitly relied on its recent (post-Rahimi and

Bruen) precedential decision in Zherka.

C.

The Circuit’s Zherka decision is wrong.

Finally, the Court should grant this petition and reverse

because the Second Circuit is wrong. For the reasons persuasively

explained by the en banc Third Circuit in Range, § 922(g)(1)

violates Petitioner’s Second Amendment rights: Petitioner is among

“the people” protected by the Second Amendment and the

government

cannot establish the necessary historical tradition of permanently

12

disarming citizens like him, based solely on prior convictions.

To start, citizens of the United States, with prior felony

convictions, like Centeno, are among “the people” protected by the

Constitution—including

the

Second

Amendment.

The

phrase

“the

people” appears several times in the Constitution, including in the

First, Fourth, Ninth, and Tenth Amendments. It “unambiguously

refers

to

all

members

of

the

political

community,

not

an

unspecified subset.” District of Columbia v. Heller, 554 U.S. 570,

579 (2008). The phrase thus includes those previously convicted of

a crime. See, e.g., Range, 124 F.4th at 226. Therefore, for §

922(g)(1)’s restrictions on these citizens’ Second Amendment rights

to be lawful, the government must provide evidence of analogous

regulations from the Founding Era to show that § 922(g)(1) comports

with our nation’s history and tradition of firearms regulation. See

Bruen, 597 U.S. at 29. Here, however, the government cannot show a

relevant Founding Era analogue as to either the “why” or the “how”

of § 922(g)(1).

As to the “why,” there is no evidence of any significant

Founding-era firearms restrictions on citizens who satisfied an

imposed criminal penalty, but were nonetheless disarmed based

exclusively on the fact that they had some prior conviction. See

Joseph G.S. Greenlee, The Historical Justification for Prohibiting

Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 283

(2020). And while the historical record suggests that dangerousness

13

sometimes supported disarmament, conviction status alone did not

connote dangerousness to the Founding generation. See id. At the

Founding, “[p]eople considered dangerous lost their arms. But being

a criminal had little to do with it.” United States v. Jackson, 85

F.4th 468, 472 (8th Cir. 2023) (Stras, J., dissenting from denial

of rehearing en banc) (surveying historical disarmament laws).

As to the “how,” the government cannot marshal Founding-era

evidence of class-wide, lifetime bans on firearms possession merely

because of conviction status. Bans based on felony convictions were

a twentieth-century invention. See C. Kevin Marshall, Why Can’t

Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708

(2009). As then-Judge Barrett explained: “The best historical

support for a legislative power to permanently dispossess all

felons

would

be

founding-era

laws

explicitly

imposing

——

or

explicitly authorizing the legislature to impose —— such a ban. But

at least thus far, scholars have not been able to identify any such

laws.” Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (Barrett,

J., dissenting).

Nor are Founding-era surety and forfeiture laws sufficiently

analogous to § 922(g)(1). Unlike § 922(g)(1), Founding era surety

laws at most temporarily deprived an owner of his arms if he was

found to pose a unique danger to others. See Bruen, 597 U.S. at

55-59. By contrast, § 922(g)(1) imposes a permanent class-wide ban,

regardless of any dangerousness finding.

14

“Founding-era laws that forfeited felons’ weapons or estates

are not sufficient analogues either. Such laws often prescribed the

forfeiture of the specific weapon used to commit a firearms-related

offense without affecting the perpetrator's right to keep and bear

arms generally.” Range, 124 F.4th at 231. Thus, the government

cannot identify a sufficient historical analogue to render §

922(g)(1) constitutional on its face, or as applied to people like

Petitioner.

II.

This Court’s decision in Esteras requires that the

revocation of Petitioner’s supervised release, and the

imposition of an above Guidelines sentence of 24 months

in prison, be vacated.

Esteras requires vacatur of Petitioner’s VOSR sentence of 24

months’s imprisonment.

At Centeno’s sentencing (in June 2023) -- as in a recent Sixth

Circuit case -- “a joint sentencing hearing ... covered both the

substantive felon-in-possession charge and the follow-on supervised

release violation[.]” See United States v. Hoyle, 148 F.4th 396,

399-400 (6th Cir. 2025). And, importantly, “the district court did

not explicitly distinguish between which, if any, factors it

applied to the § 922(g)(1) offense, which it applied to the

supervised-release violation, and which it applied to both.” Id. at

402. In other words, it did not “explicitly specify which factors

it applied to the substantive offense and which ones it applied

when sentencing for the supervised release violation[.]” Id. at

406.

15

Under these circumstances, the Sixth Circuit determined that

the record indicated that “the district court improperly relied on

retribution

and

punishment

factors

for

[the

defendant’s]

supervised-release violation sentence.” Id. at 405. Accordingly,

the

“district

supervised

court

release

must

resentence

violation,”

in

[the

defendant]

for

the

wake

Esteras,

of

his

“[r]egardless” of whether “plain-error review should apply.” Id.

As in Hoyle, the district court in this case did not “specify

which factors applied to the substantive offense and which ones it

applied when sentencing for the supervised-release violation.”

Hoyle, id. at 406. Also, as in Hoyle, the district court didn’t

state that it had applied different 3553(a) factors in fashioning

the sentence for the new crime and the sentence for the VOSR. And

before Esteras was decided, the Second Circuit (like the Sixth

Circuit in Hoyle), had “held that district courts may consider §

3553(a)(2)(A)” in sentencing for a violation of supervised release.

Esteras, 145 S. Ct. at 2038 n.1 (noting that “the Sixth Circuit,

the First, Second, and Third Circuits” comprised that group). The

Court should, therefore, grant this petition, vacate Petitioner’s

revocation sentence, and remand for the Second Circuit to direct

the district court to resentence Petitioner “for his supervised

release violation, considering only the permissible factors set

forth in § 3583(e).” See Hoyle, id. at 407.

16

Conclusion

For

the

foregoing

reasons,

the

petition

for

a

writ

of

certiorari should be granted.

Dated:

New York, New York

December 16, 2025

Respectfully submitted,

By: /s/ Darrell Fields

DARRELL FIELDS

Counsel of Record

FEDERAL DEFENDERS OF NEW YORK, INC.

APPEALS BUREAU

52 Duane Street, 10th Floor

New York, New York 10007

Tel.: (212) 417-8742

Email: darrell_fields@fd.org

Attorney for Petitioner

FRANKIE CENTENO

17