Petition for Writ of Certiorari — Jamaion Wilson, Petitioner v. United States
Supreme Court briefJul 29, 2026
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No. _________
IN THE SUPREME COURT OF THE UNITED STATES
JAMAION WILSON,
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
APPENDIX
JASON HAWKINS
Federal Public Defender
Northern District of Texas
TX State Bar No. 00759763
525 Griffin Street, Suite 629
Dallas, TX 75202
(214) 767-2746
/s/ Loui Itoh
LOUI ITOH **
Assistant Federal Public Defender
Northern District of Texas
D.C. Bar No. 1018988
819 Taylor Street, Room 9A10
Fort Worth, Texas 76102
(817) 978-2753
INDEX TO APPENDICES
Appendix A Opinion of Fifth Circuit, United States v. Wilson,
164 F.4th 380 (5th Cir. 2026)
Appendix B Opinion of Fifth Circuit Denying Rehearing En Banc,
United States v. Wilson, 174 F.4th 474 (5th Cir. 2026)
Appendix C Judgment and Sentence of the United States District Court
for the Northern District of Texas, entered July 15, 2024.
United States v. Wilson, Dist. Court No. 4:24-CR-00027-P
APPENDIX A
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United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
FILED
No. 24-10633
____________
January 12, 2026
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jamaion Wilson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:24-CR-27-1
______________________________
Before Wiener, Willett, and Ho, Circuit Judges.
Don R. Willett, Circuit Judge:
After being duped into buying a fake firearm, Jamaion Wilson
retaliated—shooting the seller dead with a handgun modified to fire like a
machinegun. Wilson later confessed and pleaded guilty to unlawful
possession of a machinegun under 18 U.S.C. § 922(o). At sentencing, the
district court applied the Sentencing Guidelines cross-reference to seconddegree murder, concluding that offense most closely reflected Wilson’s
conduct.
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On appeal, Wilson raises two challenges: (1) that his conviction
violates the Second Amendment, and (2) that the district court misapplied
the cross-reference in calculating his Guidelines range. We reject both
arguments and AFFIRM.
I
On May 9, 2023, Wilson and two friends met D.J. in a Valero gas
station parking lot to purchase a firearm for $300. 1 As they left, they
discovered the firearm was fake. Angered, Wilson drew a Palmetto State
Armory Dagger pistol outfitted with a Glock switch—a device that converts
a semiautomatic handgun into a fully automatic weapon—and retrieved an
extended magazine capable of holding 31 rounds from his vehicle. The three
men then walked to the rear of the station to confront D.J. After a brief
exchange, Wilson fired multiple rounds, striking D.J. repeatedly until he fell.
Wilson and his friends then robbed D.J. of cash and a gun before fleeing.
Investigators arrived soon after and found D.J. lying in the parking lot
in a pool of blood. They transported him to a nearby hospital, where he was
later pronounced dead. Officers interviewed a witness to the shooting and
secured surveillance footage of the incident. They then located Wilson, who
admitted firing the shots but claimed he acted in self-defense. Wilson also
confirmed that the firearm he used was equipped with a “machinegun
conversion device” and described it as a “tactical Glock.”
Wilson was charged with unlawful possession of a machinegun, in
violation of 18 U.S.C. § 922(o). He moved to dismiss the indictment, arguing
_____________________
1
These facts are taken from the Presentence Investigation Report, which was
adopted by the district court with three clarifications requested by Wilson.
2
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that § 922(o) violates the Second Amendment, but the district court denied
the motion. Wilson then pleaded guilty without a written plea agreement.
Wilson’s Presentence Investigation Report (PSR) identified
U.S.S.G. § 2K2.1 as the applicable Guideline. Because the offense resulted
in a death, the PSR applied the cross-reference to § 2A1, which governs
homicide. The PSR determined that § 2A1.2—second-degree murder—was
the most analogous offense. Applying that cross-reference, and incorporating
other adjustments, the PSR calculated an offense level of 35. Combined with
Wilson’s criminal history, this produced a Guidelines range of 188–235
months’ imprisonment. But because § 922(o) carries a statutory maximum
of 10 years—below the Guidelines range—the PSR recommended a 120month sentence.
Wilson objected, arguing that the second-degree murder crossreference failed to account for his self-defense claim. The district court
overruled Wilson’s objection, adopted the PSR’s findings, and imposed a
120-month sentence.
II
We review preserved constitutional challenges de novo 2 and
unpreserved sentencing objections for plain error. 3 To establish plain error,
a defendant must show “(1) error, (2) that is plain, and (3) that affects
substantial rights.” 4 If the defendant makes that showing, we may exercise
our discretion “to notice a forfeited error but only if (4) the error seriously
_____________________
2
United States v. Diaz, 116 F.4th 458, 462 (5th Cir. 2024).
3
United States v. Martinez-Rodriguez, 821 F.3d 659, 662 (5th Cir. 2016).
4
Id. (citation omitted).
3
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affects the fairness, integrity, or public reputation of judicial proceedings.” 5
“Meeting all four prongs is difficult, ‘as it should be.’” 6
III
Wilson presses two arguments on appeal. First, he argues that his
conviction is unconstitutional because § 922(o) violates the Second
Amendment. Second, he contends that the district court erred by applying
the Guidelines cross-reference to second-degree murder instead of voluntary
manslaughter, which produced a higher Guidelines range. We take each
argument in turn.
A
We begin with Wilson’s Second Amendment challenge.
Section 922(o) makes it unlawful—with exceptions not relevant
here—“for any person to transfer or possess a machinegun.” Wilson
contends that this ban violates the Second Amendment’s guarantee of an
individual right to keep and bear arms. 7
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5
Id. at 663.
6
Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States v.
Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).
7
Wilson claims to bring both a facial and as-applied constitutional challenge. But
his arguments collapse into one. His as-applied challenge alleges that § 922(o) is
unconstitutional “as applied to the possession of machineguns.” But machinegun
possession is all the statute prohibits. Indeed, Wilson’s arguments focus exclusively on
whether the government may facially ban machineguns; he never suggests that the statute
is only unconstitutional as applied to his specific conduct. See United States v. Morgan, 147
F.4th 522, 526 (5th Cir. 2025) (“An as-applied challenge asks whether a law—though
constitutional in some circumstances—is nonetheless unconstitutional as applied to a
defendant’s activity.” (cleaned up)).
4
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This is not an issue of first impression for us. In Hollis v. Lynch, we
rejected a constitutional challenge to § 922(o) and held that machineguns
“do not receive Second Amendment protection.” 8 And under our rule of
orderliness, “one panel of our court may not overturn another panel’s
decision.” 9 Because Wilson offers no reason to depart from that rule, Hollis
remains binding precedent.
1
We begin with an overview of Hollis. Eight years after the Supreme
Court decided District of Columbia v. Heller, 10 the panel in Hollis was asked
to apply that landmark decision to § 922(o)’s ban on machinegun possession.
Hollis distilled three guiding principles from Heller. First, the Second
Amendment protects only weapons that are “in common use at the time,”
and “[i]f a weapon is dangerous and unusual, it is not in common use.” 11
Second, the Court “took it as a given that M–16s are dangerous and unusual
weapons and not protected by the Second Amendment.” 12 And third, even
though today’s ordinary military weapons far outpace those typically kept at
home for defense, that “cannot change our interpretation of the right.” 13
Guided by these principles, Hollis concluded that machineguns are
not in “common use” and thus fall outside the Second Amendment. It
emphasized that “both the Heller majority and dissent identified the M–16 to
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up).
8
827 F.3d 436, 451 (5th Cir. 2016).
9
Acosta v. Hensel Phelps Construction Co., 909 F.3d 723, 742 (5th Cir. 2018) (cleaned
10
554 U.S. 570 (2008).
11
Hollis, 827 F.3d at 446 (citing Heller, 554 U.S. at 627).
12
Id.
13
Id. (citing Heller, 554 U.S. at 627–28).
5
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be a dangerous and unusual weapon.” 14 Although recognizing that these
passages from Heller were dicta, Hollis observed that “we are generally
bound by Supreme Court dicta, especially when it is ‘recent and detailed.’” 15
Still, because this was ultimately dicta, Hollis undertook an “independent
inquiry” into whether machineguns are in fact “in common use”—that is,
whether they are dangerous and unusual. 16
Hollis had little difficulty concluding that “machineguns are
dangerous weapons.” 17 On unusualness, it noted the “wide variety in
methodological approaches” other courts use to distinguish “common from
uncommon.” 18 Yet under any approach, the result was the same: “it does not
matter which set of numbers we adopt . . . [n]one of them allow a conclusion
that a machinegun is a usual weapon.” 19 Hollis pointed to the raw number of
pre-1986 civilian-owned machineguns—175,977—as far below what other
circuits had deemed sufficient to “show[] common use.” 20 It distinguished
that number from the 200,000 stun guns two Justices had deemed enough to
render stun guns “common,” noting that while stun guns were lawful in 45
states, machineguns were totally banned in 34 states and heavily restricted in
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14
Id. at 447.
15
Id. at 448 (citing Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013)).
16
Id.
17
Id.
18
Id.at 449 (quotation omitted).
19
Id.
20
Id. (noting that the Second Circuit found 50 million large-capacity magazines
sufficient for a showing of common use, and that the Fourth Circuit found the same for 8
million AR- and AK-platform semi-automatic rifles).
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the rest. 21 Hollis also declined to perform a percentage analysis because the
record contained no such data, though it observed “the percentages would
be quite low.” 22 Thus, “irrespective of the metric used,” the numbers failed
to establish that machineguns are usual. 23
Declaring that “[m]achineguns are dangerous and unusual and
therefore not in common use,” Hollis concluded they fall outside the Second
Amendment. 24
2
Wilson asks us to set aside our rule of orderliness and ignore Hollis’s
unmistakable holding because “175,000 is no longer a reasonable estimate of
the number of machineguns in the country.” He argues that, according to
reports from the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF), there are roughly 740,000 registered machineguns, and when
illegally owned machineguns are included, they “now likely number in the
millions.” That argument fails on several fronts.
Most straightforwardly, Wilson’s numbers have no bearing on
Hollis’s precedential force. Our caselaw is clear: the rule of orderliness
applies unless a previous decision “is overruled, expressly or implicitly, by
either the United States Supreme Court or by the Fifth Circuit sitting en
banc.” 25 Wilson cites no authority—neither in his briefs nor when directly
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21
Id. at 449–50 (discussing Caetano v. Massachusetts, 577 U.S. 411, 419–20 (2016)
(Alito, J., concurring)).
22
Id. at 450.
23
Id.
24
Id. at 451.
25
Stewart v. Entergy Corp., 35 F.4th 930, 935 (5th Cir. 2022); see also United States
v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (“Under our rule of orderliness, only an
7
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questioned during oral argument—suggesting that we may disregard a panel
decision based solely on evolving facts. If Wilson believes Hollis is factually
outdated, his recourse is to seek en banc review. 26
But even if we could revisit Hollis, Wilson’s “updated” statistics are
misleading at best. Recently published ATF data show that the 740,000
figure includes machineguns registered to state and local government entities
as well as to licensed dealers selling exclusively to government agencies. 27
Those firearms are not in the hands of private citizens for the core lawful
purpose of self-defense; 28 they are possessed by the government—not
“possessed at home”—and are used primarily for law-enforcement
purposes—not personal “self-defense.” 29 Firearms held by police and
military entities are irrelevant to the “common use” inquiry.
Fortunately, ATF data provides a more telling figure: about 234,718
machineguns “registered . . . [and] transferable to a private individual or
between private individuals.” 30 That number is far below Wilson’s claimed
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intervening change in the law (such as by a Supreme Court case) permits a subsequent
panel to decline to follow a prior Fifth Circuit precedent.” (emphasis added) (citation
omitted)).
26
Gjetani v. Barr, 968 F.3d 393, 397 n.2 (5th Cir. 2020) (“And of course, only our
en banc court can overrule the decision of a prior panel unless such overruling is
unequivocally directed by controlling Supreme Court precedent.” (cleaned up)).
27
See ATF.gov, Data & Statistics, Machineguns Registered in the National Firearms
Registration and Transfer Record, https://www.atf.gov/resource-center/data-statistics.
28
Hollis, 827 F.3d at 447 (“The Second Amendment protects the class of weapons
that enable ‘citizens to use them for the core lawful purpose of self-defense . . . .’” (quoting
Heller, 554 U.S. at 630)).
29
Id. (internal quotations and citation omitted).
30
See ATF.gov, Data & Statistics, Machineguns Registered in the National Firearms
Registration and Transfer Record, https://www.atf.gov/resource-center/data-statistics.
Indeed, even this number may be too high. The ATF notes that “these machineguns may
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740,000 and roughly matches the 175,000 figure cited in Hollis. So even on
Wilson’s own terms, there are no “new facts” warranting departure from
Hollis.
Finally, even if Wilson’s number were accurate, those figures would
hardly alter Hollis’s outcome. Hollis understood Heller to identify
machineguns as “the quintessential example” of unprotected arms and to
treat “M-16s are dangerous and unusual weapons.” 31 And while recognizing
this as dicta, Hollis emphasized that “we are generally bound by Supreme
Court dicta, especially when it is ‘recent and detailed.’” 32 Thus, even apart
from its independent inquiry into common use, Hollis had already anchored
its holding in binding Supreme Court guidance.
In short, Wilson’s “updated” statistics give us no license to disturb
Hollis’s unambiguous holding: machineguns are not protected by the Second
Amendment.
3
A second argument for ignoring Hollis rests on the claim that it was
abrogated by New York State Rifle & Pistol Association, Inc. v. Bruen. 33 Unlike
a change in facts, an intervening Supreme Court decision may permit one
panel to depart from another—but only where “such overruling is
unequivocally directed by controlling Supreme Court precedent.” 34 As
already discussed, Hollis held that machineguns are not covered by the
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no longer function, or they may be actually possessed by government entities, licensed
entities, or individuals outside of the United States.” Id. (citations omitted).
31
Hollis, 827 F.3d at 445–56.
32
Id. at 448 (citing Gearlds, 709 F.3d at 452).
33
597 U.S. 1 (2022).
34
Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001) (quotation omitted).
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Second Amendment because they are dangerous and unusual, and therefore
not in common use. 35 Nothing in Bruen “unequivocally” overrules that core
holding.
On the contrary, Bruen reinforces the portion of Heller on which Hollis
relied. In Hollis, the court cited dicta from Heller for the proposition that the
Second Amendment does not protect dangerous and unusual weapons. 36
And in Bruen, the Supreme Court reiterated that portion of Heller, observing
that it is “fairly supported by the historical tradition of prohibiting the
carrying of dangerous and unusual weapons that the Second Amendment
protects the possession and use of weapons that are in common use at the
time.” 37 Far from abrogating Hollis, Bruen confirmed its major premise—
that prohibitions on dangerous and unusual weapons are consistent with our
historical tradition of firearm regulation. And because Bruen said nothing
about the scope of that tradition, it did not displace Hollis’s minor premise—
that § 922(o) is consistent with that historical tradition.
To be sure, Bruen modified the framework for analyzing Second
Amendment challenges. Prior to Bruen, we employed a two-step inquiry: 38
first, whether a law impinged upon a right protected by the Second
Amendment; and second, if so, whether the law survived “means-end
scrutiny.” 39 Bruen eliminated that second step but retained the first as
“broadly consistent with Heller, which demands a test rooted in the Second
_____________________
35
Hollis, 827 F.3d at 451.
36
Id. at 446 (citing Heller, 554 U.S. at 627).
37
Bruen, 597 U.S. at 21 (internal quotation marks omitted) (quoting Heller,
554 U.S. at 627).
38
See id. at 18; Diaz, 116 F.4th at 463.
39
Diaz, 116 F.4th at 463.
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Amendment’s text, as informed by history.” 40 Thus, while cases decided
under the second step were categorically abrogated by Bruen, that does not
mean that Bruen swept the entire slate clean. Rather, if a case decided under
the first step does not conflict with Bruen in a more concrete way, we cannot
say that it was unequivocally rejected by Bruen.
That conclusion is also consistent with our decision in United States v.
Diaz. 41 True, Diaz stated that our circuit’s pre-Bruen precedent was obsolete
under the “new historical paradigm for analyzing Second Amendment
claims.” 42 But Diaz swept away only those cases that relied on means-end
scrutiny. Indeed, when the government tried to salvage certain precedents by
labeling them step-one cases, Diaz rejected the attempt—not because Bruen
had wiped clean the entire universe of Second Amendment caselaw, but
because those specific precedents were “based on the means-ends scrutiny
that Bruen renounced.” 43
Not so with Hollis. Hollis was decided exclusively at step one—the
step Bruen found “broadly consistent with Heller.” 44 Relying directly on
Heller’s historical analysis, Hollis explained “that a law that regulates a class
of weapons that are not in common use will be upheld at step one.” 45 Hollis
never invoked—let alone relied upon—the now-discarded means-end
scrutiny. It rested on Heller’s “dangerous and unusual weapons” language,
_____________________
40
Bruen, 597 U.S. at 19, 24.
41
116 F.4th 458.
42
Id. at 465.
43
Id.
44
Bruen, 597 U.S. at 19.
45
Hollis, 827 F.3d at 447; see also id. at 451 (“[W]e uphold Section 922(o) at step
one of our framework.”).
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which Bruen reaffirmed. Therefore, overruling Hollis is not “unequivocally
directed” by Bruen. 46
The Sixth Circuit agrees. Facing a similar challenge, that court
recently reaffirmed its precedent upholding § 922(o) under Heller, 47 holding
that Bruen “did nothing to displace those aspects of Heller on which [its
precedent] relied.” 48 So too here: Bruen leaves Hollis intact.
*
*
*
In sum, Hollis continues to bind us. And because Hollis controls,
Wilson’s Second Amendment challenge to his § 922(o) conviction must fail.
B
Wilson next argues that the district court applied the wrong crossreference in calculating his Guidelines offense level. Wilson concedes that he
did not preserve this objection, so plain-error review applies. 49 And under
that standard, Wilson’s challenge fails because he cannot show plain error.
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46
Martin, 254 F.3d at 577 (quotation omitted).
47
United States v. Bridges, --- 150 F.4th ---, 2025 WL 2250109, at *4517, 522 (6th
Cir. Aug. 7, 2025).
48
Id.
49
Wilson cites United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991), for the
proposition that “[c]loser scrutiny” of his unpreserved challenge is warranted because he
objected to the cross-reference on related grounds—namely, that it failed to account for his
self-defense claim. But Lopez ultimately applied the plain-error standard because the
defendant “had ample opportunity to raise this matter below,” “was at that time aware of
all information the district court considered relevant to his sentence,” “was also fully
apprised of how the district court intended to apply the relevant guidelines to that
information,” and made “no attempt to excuse his failure to call this matter to the district
court’s attention.” Id. at 50–51 (citation omitted). The same conditions are present here.
Moreover, Wilson doesn’t explain how his self-defense would have done anything to “alert
the district court to the error of which he . . . complains on appeal.” United States v. Brooks,
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The Guidelines section for unlawful machinegun possession directs
that if the defendant used the firearm in connection with another offense in
which “death resulted,” the district court should apply “the most analogous
offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the
resulting offense level is greater than that [for the instant offense].” 50 In
doing so, district courts must “determine what federal homicide offense was
most analogous to the conduct” of the defendant. 51
Under federal law, murder “is the unlawful killing of a human being
with malice aforethought.” 52 A murder involving certain statutorily defined
elements is considered first-degree murder, while “[a]ny other murder is
murder in the second degree.” 53 Voluntary manslaughter, by contrast, is the
“unlawful killing of a human being without malice” but “[u]pon a sudden
quarrel or heat of passion.” 54 The difference between second-degree murder
and voluntary manslaughter therefore “turns on whether the defendant
committed the killing with ‘malice’ or with a reduced level of culpability.” 55
And malice aforethought “encompasses three distinct mental states: (1)
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33 F.4th 734, 739 (5th Cir. 2022) (cleaned up). Ordinary plain-error review is therefore the
correct standard.
50
U.S.S.G. § 2K2.1(c)(1)(B).
51
United States v. Hicks, 389 F.3d 514, 530 (5th Cir. 2004).
52
18 U.S.C. § 1111(a).
53
Id.
54
18 U.S.C. § 1112(a).
55
Hicks, 389 F.3d at 530 (citing United States v. Browner, 889 F.2d 549, 551–52 (5th
Cir. 1989)).
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intent to kill; (2) intent to do serious bodily injury; and (3) extreme
recklessness and wanton disregard for human life (‘depraved heart’).” 56
The facts of this case, as described in the PSR and adopted by the
district court, support a finding that Wilson acted with malice. After
discovering that D.J. had sold him a fake firearm, Wilson drew his own
handgun equipped with a machinegun conversion device, retrieved a 31round magazine from his vehicle, walked to the back of the gas-station
parking lot, confronted D.J., pointed the firearm directly at him, and fired
multiple shots until D.J. fell. We have previously found similar facts sufficient
to support a finding of second-degree murder. 57
Indeed, Wilson does not meaningfully dispute that these facts align
with second-degree murder. Instead, he seizes on a single sentence in the
PSR: “When determining the applicable guideline for the cross reference,
the details of D.J.’s murder indicates a ‘crime of passion’ in which the
defendant acted against D.J. because of a sudden strong impulse such as
anger with minimal planning and within a short period of time.” Wilson
highlights the phrases “crime of passion” and “sudden strong impulse,”
noting their similarity to the statutory language “heat of passion” and
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56
Id. (quoting Lara v. United States Parole Comm’n, 990 F.2d 839, 841 (5th Cir.
1993)).
57
See id. at 531 (finding second-degree murder when defendant intentionally fired
his gun at a police cruiser, which he likely knew to be occupied); United States v. White, No.
23-10194, 2024 WL 4987350, at *5 (5th Cir. Dec. 5, 2024) (finding that “pointing a gun at
someone and firing it shows a specific intent to kill”) (unpublished), cert. denied, 145 S. Ct.
1910 (2025); cf. United States v. Bell, No. 23-50168, 2023 WL 7549508, at *1 (5th Cir. Nov.
13, 2023) (unpublished) (finding no error when the district court applied the crossreference for attempted first-degree murder when the defendant, after getting in a physical
altercation with his ex-girlfriend, “returned to the residence and began shooting a handgun
in her general direction”); Frascarelli v. U.S. Parole Comm’n, 857 F.3d 701, 708 (5th Cir.
2017) (finding malice, in part, because the defendant walked down and up a flight of stairs
to obtain a hammer, which showed “that the heat of passion had time to ‘cool’”).
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“sudden quarrel” in the voluntary-manslaughter statute. 58 He then argues
that because the district court adopted the PSR’s findings—including this
sentence—it “effectively found” that Wilson committed voluntary
manslaughter and thus erred in applying the second-degree murder crossreference.
Contrary to Wilson’s claim that the district court “effectively found”
voluntary manslaughter, the court expressly and unambiguously determined
that the most analogous offense was second-degree murder. This is therefore
not a case where the court found voluntary manslaughter but mistakenly
applied the second-degree murder cross-reference—a scenario that could
well amount to plain error. The real question here is whether the district
court’s conclusion that Wilson’s conduct was most analogous to seconddegree murder was unreasonable given its factual findings that D.J.’s killing
involved a “crime of passion” and “sudden strong impulse.”
It was not. True, those phrases evoke voluntary manslaughter. But
they do not tell the whole story. Wilson overlooks that the district court
adopted the PSR in its entirety, not just one sentence. And as explained
above, the specific details of Wilson’s conduct—arming himself with a
machinegun-conversion device, retrieving a high-capacity magazine,
confronting D.J., and firing multiple rounds—easily support second-degree
murder. At most, the PSR is ambiguous: its general description evokes
voluntary manslaughter, but its specifics point to second-degree murder.
When the facts cut both ways, we cannot say the district court plainly erred
in concluding that second-degree murder was the more analogous offense. 59
_____________________
58
18 U.S.C. § 1112(a).
59
Cf. United States v. Hebert, 813 F.3d 551, 560 (5th Cir. 2015) (“[U]nder clear
error review, even ‘[w]here there are two permissible views of the evidence, the
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Nor has Wilson cited any authority to the contrary. 60 Accordingly, the
district court did not commit a “clear or obvious” error in applying the
second-degree murder cross-reference. 61
Because Wilson has not shown plain error, we need not address the
remaining prongs of plain-error review. 62
IV
In conclusion, both of Wilson’s arguments fail. The district court did
not err in rejecting Wilson’s Second Amendment challenge to § 922(o) or in
its application of the second-degree murder cross-reference.
Accordingly, we AFFIRM the district court’s judgment.
_____________________
factfinder’s choice between them cannot be clearly erroneous.’” (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 574 (1985)).
60
United States v. McGavitt, 28 F.4th 571, 577 (5th Cir. 2022) (“In this circuit, a
lack of binding authority is often dispositive in the plain error context.” (quotation marks
and citation omitted)); see also United States v. Lainez Garcia, No. 22-40455, 2023 WL
2733473, at *2 (5th Cir. Mar. 31, 2023) (unpublished) (“And without on-point, binding
precedent, the defendant normally cannot show that an error was plain.” (citation
omitted)).
61
Puckett, 556 U.S. at 135.
62
United States v. Russell, 136 F.4th 606, 609 n.4 (5th Cir. 2025).
16
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Don R. Willett, Circuit Judge, concurring:
The Constitution’s enduring genius lies less in its promises than in its
design. As Justice Scalia once reminded a Senate committee, even the most
oppressive regimes profess liberty, but only a government of divided powers
can give life to parchment guarantees. 1 That design—the Constitution’s
Madisonian architecture of separated powers, divided sovereignty, and
enumerated authority—was shrewdly crafted to restrain government even as
it empowers it. And each generation must decide whether to honor those
structural limits as boundaries to uphold—or to treat them as obstacles to
outwit.
The Framers understood those limits not as impediments to progress
but as the architecture of freedom itself—liberty’s scaffolding, built to
confine power within its rightful bounds. That insight remains the lifeblood
of our constitutional order, the reason ours endures as the oldest written
national constitution on earth. And nowhere is fidelity to that design more
vital than in the criminal sphere, where the consequences of unbounded
power are most acute, and where federal authority must both begin and end
with enumerated power.
Congress’s power to define and punish crimes—like all federal
authority—must therefore rest on a specific constitutional grant. Not every
act that may be rightly condemned may also be federally criminalized. The
statute before us, 18 U.S.C. § 922(o), brings that principle into sharp relief.
It embodies the perennial tension between legitimate national aims and the
_____________________
1
Considering the Role of Judges Under the Constitution of the United States: Hearing
Before the S. Comm. on the Judiciary, 112th Cong. 6 (2011) (statement of Hon. Antonin
Scalia, Assoc. Just., Sup. Ct. of the U.S.) (“[I]f you think that the Bill of Rights is what sets
us apart, you are crazy. Every banana republic has a bill of rights. Every president for life
has a bill of rights.”).
17
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Constitution’s structural restraints, and it requires us to ask whether, in the
name of public safety, Congress has remained within its enumerated
bounds—or pressed beyond them.
I. Constitutional Restraints on Federal Criminal Law
Two hundred and fifty years ago, the Continental Congress approved
the great charter of American independence. It proclaimed that “certain
unalienable Rights” flow from the “Creator,” and that government’s
purpose is “to secure these rights.” 2 A decade later, in 1787 and 1788, “We
the People” ratified the great charter of American union, establishing a
system of government anchored by four interlocking mechanisms designed
to secure those rights: representative government, separation of powers,
federalism, and—eventually—a Bill of Rights. 3
These foundational pillars undergird three bedrock principles of
federal criminal law. First, representative government and separation of
powers together dictate that only Congress—not the Executive and not the
_____________________
2
The Declaration of Independence para. 2 (U.S. 1776).
3
See Frederick Douglass, The Life and Times of Frederick
Douglass 333 (John Lobb ed., 1882) (describing “the elective franchise as the one great
power by which all civil rights are obtained, enjoyed, and maintained under our form of
government”); Dep’t of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 75 (2015) (Thomas,
J., concurring in the judgment) (“At the center of the Framers’ dedication to the
separation of powers was individual liberty.” (citation omitted)); Gregory v. Ashcroft,
501 U.S. 452, 459 (1991) (“In the tension between federal and state power lies the promise
of liberty.”); United States v. Guest, 383 U.S. 745, 771 (1966) (Harlan, J., concurring in
part and dissenting in part) (noting that the Bill of Rights was “designed to protect personal
liberties”); cf. United States v. Rahimi, 602 U.S. 680, 777 (2024) (Thomas, J., dissenting)
(“The Framers and ratifying public understood that the right to keep and bear arms was
essential to the preservation of liberty.” (cleaned up)).
18
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Judiciary—may define conduct as criminal. 4 Second, federalism requires that
every federal criminal statute “rest on one of Congress’s ‘few and defined’
powers.” 5 And third, the Bill of Rights forbids any federal law—including a
criminal statute—from transgressing protected individual rights. 6
II. The Machinegun Ban & The Commerce Power
Jamaion Wilson challenges 18 U.S.C. § 922(o)—the federal
machinegun ban—under only the last of these principles. As the majority
explains, that challenge is foreclosed by our decision in Hollis v. Lynch. 7 I
write separately to express concern that § 922(o) may also be inconsistent
with the second tenet of federal criminal law: the Constitution’s principle of
enumerated powers.
That principle—no less than the explicit prohibitions in the Bill of
Rights—is essential to the preservation of liberty. 8 “Congress has no power
_____________________
4
See, e.g., Bousley v. United States, 523 U.S. 614, 620–21 (1998) (“[I]t is only
Congress, and not the courts, which can make conduct criminal.” (citations omitted));
United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) (holding that federal courts lack
common-law criminal jurisdiction); see also United States v. Pheasant, 157 F.4th 1119, 1120
(9th Cir. 2025) (Bumatay, J., dissenting from the denial of rehearing en banc) (“[T]o
satisfy the non-delegation doctrine that our separation of powers demands, Congress
must—at a minimum—define both the actus reus and the penalty for any criminal
offense.”).
5
United States v. Bonner, 159 F.4th 338, 340 (5th Cir. 2025) (Willett, J.,
concurring) (quoting The Federalist No. 45, at 292 (James Madison) (Clinton
Rossiter ed., 1961)).
6
See id. (“Like all congressional enactments, federal criminal statutes
must . . . respect the many constitutional provisions that secure individual rights against
government intrusion.”).
7
827 F.3d 436 (5th Cir. 2016); see supra, at 5.
8
See, e.g., Gregory, 501 U.S. at 459; Bond v. United States, 564 U.S. 211, 222 (2011)
(“[F]ederalism protects the liberty of the individual from arbitrary power.”); Reynolds v.
Sims, 377 U.S. 533, 625 (1964) (Harlan, J., dissenting) (“The Constitution is an
19
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to enact a comprehensive criminal code,” 9 and thus § 922(o), like every
other federal statute, “must be based on one or more of [Congress’s] powers
enumerated in the Constitution.” 10
Because the commerce power has been interpreted so expansively, the
natural first place to look is the Interstate Commerce Clause 11—perhaps in
concert with the Necessary and Proper Clause. 12 The power “[t]o regulate
Commerce . . . among the several States,” 13 the Supreme Court has
explained, is not—contrary to what one might expect—“confined to the
regulation of commerce among the states.” 14 But neither is it boundless. The
Court has “identified three general categories of regulation in which
Congress is authorized to engage under its commerce power. First, Congress
can regulate the channels of interstate commerce. Second, Congress has
authority to regulate and protect the instrumentalities of interstate commerce,
_____________________
instrument of government, fundamental to which is the premise that in a diffusion of
governmental authority lies the greatest promise that this Nation will realize liberty for all
its citizens.”); Ex parte Siebold, 100 U.S. (10 Otto) 371, 394 (1879) (“State rights and the
rights of the United States should be equally respected. Both are essential to the
preservation of our liberties . . . .”).
9
Bonner, 159 F.4th at 340 (Willett, J., concurring).
10
United States v. Morrison, 529 U.S. 598, 607 (2000).
11
U.S. Const. art. I, § 8, cl. 3 (“The Congress shall have Power . . . [t]o regulate
Commerce . . . among the several States . . . .”).
12
Id. art. I, § 8, cl. 18 (“The Congress shall have Power . . . [t]o make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
powers . . . .”).
13
Id. art. I, § 8, cl. 3.
14
United States v. Darby, 312 U.S. 100, 118 (1941).
20
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and persons or things in interstate commerce. Third, Congress has the power
to regulate activities that substantially affect interstate commerce.” 15
“Mere possession of a firearm fits uneasily within any of these
categories.” 16 Nor does the fact that the firearm happens to be a machinegun
make a regulation of simple possession any more compatible with them. 17
Section 922(o), in fact, has been described as “a clone” 18 and “the closest
extant relative” 19 of the provision invalidated in United States v. Lopez. 20
“Both are criminal statutes that regulate the purely intrastate possession of
firearms.” 21 Both “lack a jurisdictional element, that is, they do not require
federal prosecutors to prove that the firearms were possessed in or affecting
interstate commerce.” 22 And in enacting both laws, “Congress made no
findings regarding the link between the intrastate activity regulated by these
laws and interstate commerce.” 23
_____________________
15
Gonzales v. Raich, 545 U.S. 1, 16–17 (2005) (emphasis added) (internal citations
omitted).
16
Bonner, 159 F.4th at 341 (Willett, J., concurring).
17
See United States v. Kirk, 105 F.3d 997, 1010–16 (5th Cir. 1997) (separate opinion
of Jones, J.); United States v. Rybar, 103 F.3d 273, 287–94 (3d Cir. 1996) (Alito, J.,
dissenting).
18
Kirk, 105 F.3d at 1010 (separate opinion of Jones, J.).
19
Rybar, 103 F.3d at 287 (Alito, J., dissenting).
20
514 U.S. 549 (1995).
21
Rybar, 103 F.3d at 287 (Alito, J., dissenting).
22
Id.; see also Kirk, 105 F.3d at 1013 (separate opinion of Jones, J.) (“In
comparison to § 922(o), which lacks any reference to interstate commerce, Congress
specifically tied other regulations enacted concurrently with § 922(o) to interstate
commerce.”); United States v. Branch, 91 F.3d 699, 711 (5th Cir. 1996) (“There is no
requirement that the machinegun have been in interstate commerce.”).
23
Rybar, 103 F.3d at 287 (Alito, J., dissenting).
21
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Knutson’s Expansive Logic & The States’ Role
Nevertheless, nearly thirty years ago, we upheld § 922(o) in United
States v. Knutson. 24 In a brief per curiam opinion, we concluded that § 922(o)
validly regulated activities with a substantial effect on interstate commerce. 25
The Knutson court pointed to “the federal government’s longstanding
record of regulating machineguns,” which it believed reflected a “historic
federal interest in the regulation of machine guns.” 26
Knutson’s logic, however, has no limiting principle. The two prior
regulations on which it relied—a tax on machineguns and a licensing regime
for federal firearms dealers 27—cannot bear the constitutional weight placed
upon them. Under modern doctrine, Congress’s taxing power is not subject
to pretext review, allowing it to regulate indirectly on virtually any subject. 28
_____________________
24
113 F.3d 27 (1997) (per curiam).
25
Id. at 30–31.
26
Id. (quoting United States v. Kenney, 91 F.3d 884, 890–91 (7th Cir. 1996)). The
Knutson court also suggested that “[i]t is obvious ‘to the naked eye’ that the transfer and
possession of machineguns has a substantial effect on interstate commerce.” Id. at 30. Yet
the court deemed it unnecessary to “delve into” such “considerations,” relying instead on
the “extensive legislative histories that accompanied each prior incarnation of what has
been a durable line of federal machinegun regulations.” Id.
But it is difficult to see how a substantial commercial effect from mere possession
of a machinegun is “obvious to the naked eye”—unless one means to aggregate the effects
of all such possession nationwide. As I have previously explained, however, aggregation is
misplaced in this context because firearm possession is not an economic activity. Bonner,
159 F.4th at 342 (Willett, J., concurring).
27
See Knutson, 113 F.3d at 30–31.
28
See Sonzinsky v. United States, 300 U.S. 506, 513–14 (1937) (“[I]t has long been
established that an Act of Congress which on its face purports to be an exercise of the taxing
power is not any the less so because the tax . . . tends to restrict or suppress the thing taxed.
Inquiry into the hidden motives which may move Congress to exercise a power
constitutionally conferred upon it is beyond the competency of the courts.” (internal
citations omitted)).
22
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And courts routinely uphold regulations of those engaged in interstate
commerce even when the rule also sweeps in intra-state economic activity. 29
Taken together, these premises mean that, under Knutson’s reasoning, there
is no subject beyond Congress’ reach—so long as it proceeds step by step:
first taxing, then licensing, then prohibiting outright. But far from viewing
this sort of incremental, frog-boiling expansion of federal power as legitimate,
the Founding generation saw it as the more insidious threat—a quiet, gradual
erosion of liberty rather than a sudden seizure of it. 30
Even if Congress lacks the power to criminalize machinegun
possession, it does not follow that no one possesses that authority. The
Constitution draws that line clearly: while “[t]he powers delegated . . . to the
federal government are few and defined,” those “remain[ing] in the State
governments are numerous and indefinite.” 31 Indeed, thirty-four states have
exercised those “numerous and indefinite” 32 powers to prohibit machinegun
_____________________
29
See Darby, 312 US. at 121 (collecting cases).
30
See, e.g., Federal Farmer, Letter X (Jan. 7, 1788), reprinted in 2 The Complete
Anti-Federalist 281, 285 (Herbert J. Storing ed., 1981) (“It is not supposed that
congress will act the tyrant immediately, and in the face of the day light. It is not supposed
congress will adopt important measures, without plausible pretences, especially those
which may tend to alarm or produce opposition. . . . [P]robably, they will be wise enough
never to alarm, but gradually prepare the minds of the people for one specious change after
another, till the final object shall be obtained.”); Brutus, Essay XV (Mar. 20, 1788),
reprinted in 2 The Complete Anti-Federalist, supra, at 441 (expressing concern
that the Judiciary “will be able to extend the limits of the general government gradually,
and by insensible degrees”); see also Centinel, Letter VIII (Dec. 27, 1787), reprinted in
2 The Complete Anti-Federalist, supra, at 177 (describing “attack[ing] the
citadel of liberty by sap, and gradually undermin[ing] its outworks” as “the refined policy
of successful despots”); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952)
(Jackson, J., concurring) (noting the “[v]ast accretions of federal power, eroded from
that reserved by the States”).
31
The Federalist No. 45, supra, at 292.
32
Id.
23
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possession. 33 Of course, such regulations must still comport with the Second
Amendment. 34 But as the majority notes, Hollis remains good law—holding
that a ban on machinegun possession is consistent with the Second
Amendment. 35 Under Hollis, then, the states remain free to enforce their own
machinegun bans, even if Congress may not.
IV.
A Call for Reconsideration—But Not in This Case
Shortly after Lopez—but before Knutson—we granted en banc review
to consider whether § 922(o) is a valid exercise of Congress’s commerce
power. But we divided evenly, leaving the question unresolved. 36
In an appropriate case, I would be open to revisiting Knutson en banc.
But because Wilson did not raise an enumerated-powers challenge, this is not
that case. For now, I simply note my doubts about Knutson’s reasoning and
result.
_____________________
33
Hollis, 827 F.3d at 450.
34
See McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (plurality opinion)
(holding that the right to bear arms applies to the states via the Fourteenth Amendment).
35
Supra, at 5.
36
See Kirk, 105 F.3d 998 (per curiam).
24
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James C. Ho, Circuit Judge, dubitante:
The same Second Amendment issue that the panel majority decides
today was previously argued before our court in an earlier case before a
different panel. See Sealed Appellee v. Sealed Juvenile, No. 24-60348 (argued
Apr. 28, 2025). And when that happens—when the same legal issue is
presented to two different panels of our court—we typically defer to the first
panel as a matter of court practice, if not common sense.
Here, however, the Sealed Appellee panel did precisely the opposite.
On December 3, 2025, that panel placed their (earlier) case in abeyance,
pending decision in our (later) case.
I don’t intend to question or criticize that abeyance decision. But it is
unexpected. And I don’t wish to delay this case further. With Sealed Appellee
now in abeyance, this case becomes the oldest pending appeal on our criminal
docket.
To avoid further delay, I am content to simply await a petition for
rehearing en banc. After all, the panel majority acknowledges that the Second
Amendment issue presented here can ultimately be resolved by having our
en banc court revisit Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016). And
there’s good reason for concern that our precedent misapplies the
“dangerous and unusual” test. See, e.g., N.Y. State Rifle & Pistol Ass’n v.
Bruen, 597 U.S. 1, 47 (2022) (noting that weapons which were once
“dangerous and unusual” can cease to be so). I also share the federalism
concerns expressed by the concurring opinion, as I noted in United States v.
Seekins, 52 F.4th 988, 988 (5th Cir. 2022) (Ho, J., dissenting from the denial
of rehearing en banc).
25
APPENDIX B
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United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
FILED
No. 24-10633
_____________
April 30, 2026
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jamaion Wilson,
Defendant—Appellant.
________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:24-CR-27-1
________________________________
ON PETITION FOR REHEARING EN BANC
Before Wiener, Willett, and Ho, Circuit Judges.
Per Curiam:
Treating the petition for rehearing en banc as a petition for panel
rehearing (5th Cir. R. 40 I.O.P.), the petition for panel rehearing is
DENIED. The petition for rehearing en banc is DENIED because, at the
request of one of its members, the court was polled, and a majority did not
vote in favor of rehearing (Fed. R. App. P. 40 and 5th Cir. R. 40).
In the en banc poll, seven judges voted in favor of rehearing: Judges
Jones, Smith, Graves, Ho, Duncan, Engelhardt, and
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Oldham. Ten voted against rehearing: Chief Judge Elrod, and
Judges Stewart, Richman, Southwick, Haynes, Higginson,
Willett, Wilson, Douglas, and Ramirez.
2
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Don R. Willett, Circuit Judge, joined by Elrod, Chief Judge, and
Duncan, Circuit Judge, respecting the denial of rehearing en banc:
By enumerating both powers and rights, the Framers embraced “a
belt-and-suspenders Constitution.” 1 They denied Congress the “power to
enact a comprehensive criminal code.” 2 And, for added security, they
hardcoded some liberties—including the “right of the people to keep and
bear Arms” 3—into the Constitution itself. 4 The design was straightforward:
if the enumerated-powers belt slipped, the enumerated-rights suspenders
would still hold. 5
Often, they have. 6 But not here. Jamaion Wilson was convicted under
18 U.S.C. § 922(o), and two of our precedents leave little work for either
safeguard to do. In United States v. Knutson, we let the enumerated-powers
belt slip, holding that Congress may ban the mere possession of a machinegun
pursuant to its commerce power. 7 And in Hollis v. Lynch, we cast aside the
Second Amendment suspenders too, holding that machineguns are not just
1
United States v. Hembree, 165 F.4th 909, 919 (5th Cir. 2026) (Willett, J.,
concurring).
2
United States v. Bonner, 159 F.4th 338, 340 (5th Cir. 2025) (Willett, J.,
concurring); see United States v. Morrison, 529 US. 598, 607 (2000) (“Every law enacted by
Congress must be based on one or more of its powers enumerated in the Constitution.”);
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821) (“It is clear, that Congress cannot
punish felonies generally . . . .”).
3
U.S. Const. amend. II.
4
See generally id. amend. I–VIII. Cf. id. amend. IX (prohibiting “constru[ing]”
“[t]he enumeration in the Constitution, of certain rights . . . to deny or disparage others
retained by the people”); id. amend. X (“reserv[ing]” certain “powers not delegated” “to
the people”).
5
Hembree, 165 F.4th at 920 (Willett, J., concurring).
6
See id.
7
113 F.3d 27, 30–31 (5th Cir. 1997) (per curiam).
3
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“dangerous” but also “unusual” 8—and thus may be prohibited under our
“historical tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.’” 9
Both holdings are dubious. As I explained in my panel concurrence,
“[m]ere possession of a firearm fits uneasily” within the Supreme Court’s
three recognized categories of commerce regulation, and “the fact that the
firearm happens to be a machinegun” does not “make a regulation of simple
possession any more compatible” with the Commerce Clause. 10 Likewise,
although the Supreme Court has offered only “minimal guidance” for
determining whether a weapon is dangerous and unusual, 11 it is hard to see
how the millions of machineguns registered with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives 12 make them, in any ordinary sense,
unusual. 13
8
827 F.3d 436, 448–51 (5th Cir. 2016).
9
District of Columbia v. Heller, 554 U.S. 570, 627 (2008) (citation omitted); see
Hollis, 827 F.3d at 451.
10
United States v. Wilson, 164 F.4th 380, 392 (5th Cir. 2026) (Willett, J.,
concurring); see Gonzales v. Raich, 545 U.S. 1, 16–17 (2005) (recognizing that the Supreme
Court’s modern Commerce Clause cases “have identified three general categories of
regulation in which Congress is authorized to engage under its commerce power”).
11
Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (statement of Thomas, J.).
12
See Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Data & Statistics, https://perma.cc/KTN4-3Y9V (last visited Apr. 20, 2026) (“As
of June 2025, the total number of machineguns in the [National Firearms Registration and
Transfer Record] is approximately 2,382,403.”).
13
Cf. Harrel, 144 S. Ct. at 2492 (statement of Thomas, J.) (observing that
AR-15s are protected by the Second Amendment because they have been “selected by
millions of Americans for self-defense and other lawful purposes”); Caetano v.
Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J., concurring in the judgment) (“The
more relevant statistic is that hundreds of thousands of Tasers and stun guns have been
sold to private citizens, who it appears may lawfully possess them in 45 states.” (cleaned
up)).
4
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Under our rule of orderliness, however, future panels—including the
panel here—remain bound by Knutson and Hollis. 14 The en banc court does
not. 15 So in an appropriate case, I would welcome en banc review to
determine whether § 922(o) exceeds constitutional limits—under the
Commerce Clause, the Second Amendment, or both.
There is, however, a countervailing danger: in faulting Congress for
exceeding its constitutional limits, we must not exceed our own. We do not
sit as a “roving commission[] assigned to pass judgment on the validity of the
Nation’s laws” 16 whenever a provocative question presents itself. We sit
instead as a “passive instrument[] of government,” charged with deciding
the case the parties actually brought. 17 And in my view, two features of this
case prevent us from passing on § 922(o)’s constitutionality without
exceeding that role.
First, Wilson never argued—either in the district court or before us—
that § 922(o) exceeds Congress’s enumerated powers. We cannot make that
argument for him. 18 To do so would take us beyond adjudicating (“call[ing]
balls and strikes”) and into advocating (taking our own “turn at bat”). 19
14
See United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991) (“[I]t is the firm rule
of this circuit that one panel may not overrule the decisions of another.”).
15
See Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs.,
Inc. v. Kauffman, 981 F.3d 347, 369 (5th Cir. 2020) (en banc) (“An opinion of a panel does
not bind the en banc court.”).
16
Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973).
17
United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020) (citation omitted).
18
See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (per curiam) (summarily reversing the
Fourth Circuit for “granting relief on a claim that [the habeas petitioner] never asserted
and that the State never had the chance to address”).
19
Id. (cleaned up).
5
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Second, although Wilson labels his claim an as-applied Second
Amendment challenge, he argues only that § 922(o) is unconstitutional “as
applied to the possession of machineguns.” But possession of machineguns
is all that § 922(o) regulates. So whatever the label, the claim is facial. 20 And
that choice “comes at a cost.” 21 Wilson can prevail only if “no set of
circumstances exists under which [§ 922(o)] would be valid.” 22 That is a
demanding standard—and here, likely a fatal one. The statutory definition of
“machinegun” sweeps in not just handheld firearms, but also weapons such
as the “massive guns mounted on military aircraft and anti-aircraft
batteries.” 23 If even one such weapon falls outside the Second Amendment’s
protection—or otherwise lies within Congress’s regulatory authority—
Wilson’s facial challenge fails.
*
*
*
The en banc court should, in an appropriate case, consider whether
§ 922(o) comports with Congress’s enumerated powers and the individual
right secured by the Second Amendment. But Wilson’s appeal is not the right
vehicle. It presents no enumerated-powers challenge at all. Nor does it
20
See Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (“A facial challenge is really just
a claim that the law or policy at issue is unconstitutional in all its applications.”); Wilson,
164 F.4th at 383 n.7 (majority op.) (explaining that Wilson did not raise a genuine
as-applied challenge).
21
Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).
22
United States v. Rahimi, 602 U.S. 680, 693 (2024) (citation omitted).
23
United States v. Bridges, 150 F.4th 517, 530 (6th Cir. 2025) (Nalbandian, J.,
concurring in part and concurring in the judgment); see 26 U.S.C. § 5845(b) (defining
“machinegun” as “any weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual reloading, by a single
function of the trigger”); 18 U.S.C. § 921(a)(24) (incorporating § 5845(b)’s definition by
reference). See also United States v. Charles, 159 F.4th 545, 547–48 (8th Cir. 2025)
(rejecting a facial challenge to § 922(o) because it covers weapons systems mounted on
warships, military helicopters, and armored military vehicles).
6
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present a genuine as-applied Second Amendment challenge. We should save
those questions for a case that properly presents them. For now, I concur in
the denial of rehearing en banc. 24
24
One of our learned colleagues suggests that, vehicle problems aside, we should
have granted rehearing en banc to “get our court’s reasoning back on track by granting
rehearing en banc to revisit errant circuit precedent.” Infra, at 10 (Ho, J., dissenting from
the denial of rehearing en banc). I agree with the premise, but not the conclusion. The en
banc court may of course revisit old circuit precedent. But the question is not whether we
have authority to reconsider Hollis. We do. The question is whether Hollis is cleanly
presented here. It is not.
Festeryga does not prove otherwise. That case had a precedent problem; this case
has a presentation problem. There, Weaver was the obstacle: it required dismissal, and once
the en banc court overruled it, relief became available. See Abraham Watkins Nichols Agosto
Aziz & Stogner v. Festeryga, 109 F.4th 810, 817 (5th Cir. 2024), on reh’g en banc, 138 F.4th
252 (5th Cir. 2025) (en banc); Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga,
155 F.4th 456, 462 (5th Cir. 2025). Here, by contrast, Hollis is not what makes Wilson’s
case a poor vehicle. Take Hollis away, and the same defects remain: Wilson raised no
enumerated-powers challenge, and his Second Amendment claim is facial in substance
rather than genuinely as-applied.
That is the critical distinction. Hollis may have bound the panel, but it does not
follow that Wilson’s case cleanly presents the questions needed to overrule Hollis. En banc
review should resolve questions the parties have properly presented, not abstract
disagreements with precedent. A cited precedent is not the same thing as a properly
presented question.
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James C. Ho, Circuit Judge, dissenting from the denial of rehearing en
banc:
“Our analysis of the Second Amendment must be guided by history—
not hoplophobia.” United States v. Cockerham, 162 F.4th 500, 502 (5th Cir.
2025).
I recognize that some citizens associate certain firearms with violent
crime—just as some citizens regard speech as violence. See, e.g., Oliver v.
Arnold, 19 F.4th 843, 853 (5th Cir. 2021) (Ho, J., concurring in the denial of
rehearing en banc) (“In some quarters . . . [s]peech is violence—not just
metaphorically, but ‘literally.’”) (quoting Lisa Feldman Barrett, When is
Speech Violence?, N.Y. Times (July 14, 2017)); Zach Goldberg et al.,
Americans’ Troubling Views on Speech, Harm, and Violence, Florida State
University (Nov. 2025) (59% of Americans “think some speech can be as
damaging as physical violence”).
But other citizens associate firearms with self-defense, not violence—
just as other citizens regard free speech as enlightening, not frightening. See,
e.g., John R. Lott Jr., More Guns, Less Crime: Understanding
Crime and Gun Control Laws (1998). They agree that “[v]iolent
criminals should be prosecuted, convicted, disarmed, and incarcerated.”
United States v. Kersee, 86 F.4th 1095, 1100 (5th Cir. 2023) (Ho, J.,
concurring). But they respect law-abiding citizens—and presume innocence,
not violence. Id.
And the job of a judge is not to take sides in political controversies, but
to enforce the rights guaranteed to every American by our Constitution.
Our Founders were not afraid of firearms. To the contrary, they
required all able-bodied men between the ages of 18 and 45 to obtain a
firearm. See Act of May 8, 1792, 1 Stat. 271.
8
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And they made the conscious and deliberate decision to secure the
right to keep and bear arms—not just for themselves, but for posterity, by
agreeing to ratify the Constitution, but only on the assurance that such rights
would be protected by subsequent amendment. See, e.g., Helen E. Veit,
Kenneth R. Bowling, and Charlene Bangs Bickford, Creating the Bill
of Rights: The Documentary Record from the First
Federal Congress xi, 17, 19, 22 (1991).
Consistent with these Founding principles, the Supreme Court has
made clear that we must not treat the Second Amendment as “a second-class
right.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022)
(quotations omitted). Fear isn’t supposed to change the First Amendment.
See, e.g., Dr. A v. Hochul, 142 S. Ct. 552, 558 (2021) (Gorsuch, J., dissenting
from the denial of application for injunctive relief) (“[I]t is this Court’s duty
to ‘apply the limitations of the Constitution with no fear.’”) (quoting W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943)). It shouldn’t change
the Second Amendment, either.
We all agree that the law before us, 18 U.S.C. § 922(o), is consistent
with our circuit precedent in Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016).
The question is whether Hollis is consistent with the Second Amendment
and governing Supreme Court precedent. As I’ve previously noted in this
case, “there’s good reason for concern that our precedent misapplies the
‘dangerous and unusual’ test” established by the Supreme Court. United
States v. Wilson, 164 F.4th 380, 394 (5th Cir. 2026) (Ho, J., dubitante). See
also id. (citing Bruen, 597 U.S. at 47 (weapons which were once “dangerous
and unusual” can cease to be so)).
In addition, the law at issue here raises the same federalism concerns
that I examined in United States v. Seekins, 52 F.4th 988, 988 (5th Cir. 2022)
(Ho, J., dissenting from the denial of rehearing en banc).
9
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***
Although I would have reheard this case en banc, I am grateful for the
opinion defending the denial of en banc review.
Two of our dearest
colleagues go out of their way to express avowed agreement that our circuit
precedent is indeed out of step with the Constitution and Supreme Court
precedent and needs to be revisited. Their concern is simply that this case
may not be the right vehicle to do so. (A third distinguished member of the
court joins them in their vehicle concerns, after voting for rehearing en banc.)
So nine members of the court appear to acknowledge difficulties with
our circuit precedent. The only issue is whether this case is the right vehicle.
As I’ve previously expressed in dissenting from the denial of rehearing
en banc in cases like Voice of the Experienced v. LeBlanc, 168 F.4th 339 (5th
Cir. 2026)—and that our en banc court implicitly embraced in granting
rehearing en banc in Spectrum WT v. Wendler, 157 F.4th 673 (5th Cir. 2025):
Whatever the right result in a particular case, we have the power to get our
court’s reasoning back on track by granting rehearing en banc to revisit errant
circuit precedent.
Our colleagues acknowledge that we have the authority to take this
case en banc to revisit Hollis. They express only a prudential concern that
Hollis may not be “cleanly presented” here.
Prudence can certainly be a virtue. But I don’t see any prudential
problems here. To the contrary, the issue is just as “cleanly presented” here
as it was when we granted en banc review in Abraham Watkins Nichols Agosto
Aziz & Stogner v. Festeryga, 138 F.4th 252 (5th Cir. 2025).
In Abraham Watkins, the panel was “bound” by circuit precedent.
See, e.g., id. at 254 (“Bound by Weaver . . . a panel of this court ‘reluctantly’
dismissed Festeryga’s appeal.”).
So we went en banc to revisit that
10
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precedent. See id. (“Today, we do what only this court sitting en banc can:
we correct course and ‘unweave Weaver.’”).
The exact same thing is true here. Here too the panel was “bound”
by circuit precedent. See, e.g., Wilson, 164 F.4th at 383 (“Hollis remains
binding precedent”). So we may now go en banc to revisit that precedent as
well. If the issue was cleanly presented in Abraham Watkins, then it’s
likewise cleanly presented here.
The concurrence tries to distinguish Abraham Watkins by observing
that there are additional issues presented here—namely, that Wilson failed
to present a “genuinely” as-applied claim.
But additional issues were presented in Abraham Watkins, too. Yet
that didn’t hold us back. To the contrary, we made clear how we would
handle those separate issues: “The parties raise additional issues on appeal.
But our central task was to correct the flawed Weaver precedent—a task only
this en banc court could undertake.” 138 F.4th at 263.
So we revisited our errant circuit precedent—and then returned the
case back to the original panel “to resolve the remaining issues.” Id. See also
id. at 263 (Ho, J., concurring) (praising this approach as “a basic principle of
en banc rehearing”).
We could have done the exact same thing here. We could have gone
en banc to reconsider Hollis—and then returned the case back to the original
panel to resolve the remaining issues.
At the end of the day, I don’t see how we can claim that we’re
“bound” by a particular precedent at the panel stage—but then claim that
we can’t go en banc to revisit that precedent in that very same case. If Hollis
was “binding” at the panel stage, then surely the issue is presented at the en
banc stage as well—just as it was in Abraham Watkins.
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***
The only way to revisit and reconsider our circuit precedent is
rehearing en banc. But the court declines to do so. I respectfully dissent from
the denial of rehearing en banc.
By denying rather than granting en banc review, despite our manifest
agreement that our precedent contains fatal defects on matters of
fundamental import, we are only delaying our court from getting the
Constitution right. That’s regrettable. Time will tell whether the court will
seize the opportunity to get things on a proper footing in a future case.
12
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Andrew S. Oldham, Circuit Judge, joined by Ho, Circuit Judge,
dissenting from the denial of rehearing en banc.
Our Court’s approach to the Second Amendment is historically
bankrupt.
As far as I am aware, there is no historical justification for banning
machine guns. To the contrary, repeating arms have existed since the
fifteenth century. David B. Kopel & Joseph G.S. Greenlee, The History of
Bans on Types of Arms Before 1900, 50 J. Legis. 223, 232 (2024) (“The first
known repeating firearms were ten-shot matchlock arquebuses that date to
between 1490 and 1530.”). And numerous different repeating arms existed
at the American Founding. See id. at 255–57 (collecting examples).
Meriwether Lewis famously carried one—the Girardoni air rifle—on the
Lewis and Clark Expedition. See 2–8 Meriwether Lewis & William
Clark, The Journals of the Lewis & Clark Expedition
(Gary E. Moulton & Thomas Dunlay eds., Neb. ed. 1986–1993) (2002). And
despite the prevalence of repeating arms, literally no jurisdiction banned
them: “There were no prohibitions on any particular type of arm,
ammunition, or accessory in any English colony that later became an
American state. The only restriction in the English colonies involving
specific arms was a handgun and knife carry restriction enacted in Quakerowned East New Jersey in 1686.” Kopel & Greenlee, supra, at 238.
Our court’s approach to categorical bans on classes of weapons cannot
be reconciled with Supreme Court precedent. As the Supreme Court held:
“Far from banning the carrying of any class of firearms, [laws at the
Founding] merely codified the existing common-law offense of bearing arms
to terrorize the people[.]” New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1, 47 (2022). In Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016),
however, we held that certain classes of weapons—including repeating
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arms—fall entirely outside the Second Amendment’s scope. We had no
historical support for that in 2016.
While distinguished jurists have reached different conclusions about
the constitutionality of this statute, see United States v. Alsenat, No. 24-14058,
2026 WL 1078057, at *1 (11th Cir. Apr. 21, 2026), our precedent’s lack of
historical support conflicts with Bruen’s requirement that courts focus on
history and tradition. So, unless the Supreme Court changes the governing
standard, our precedent cannot justify a ban on entire classes of weapons.
Because our court refuses to reconsider Hollis, I respectfully dissent.
14
APPENDIX C
Case 4:24-cr-00027-P Document 52 Filed 07/15/24
Page 1 of 5 PageID 171
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
Fort Worth Division
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
v.
Case Number: 4:24-CR-00027-P(01)
U.S. Marshal’s No.: 89081-510
Frank Gatto, Assistant U.S. Attorney
John Stickney, Attorney for the Defendant
JAMAION WILSON
On March 20, 2024 the defendant, JAMAION WILSON, entered a plea of guilty as to Count One of the
Indictment filed on February 14, 2024. Accordingly, the defendant is adjudged guilty of such Count, which
involves the following offense:
Title & Section
18 U.S.C. §§ 922(0) and 924(a)(2)
Nature of Offense
Unlawful Machinegun Possession
Offense Ended
5/09/2023
Count
One
The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed
pursuant to Title 18, United States Code § 3553(a), taking the guidelines issued by the United States Sentencing
Commission pursuant to Title 28, United States Code § 994(a)(1), as advisory only.
The defendant shall pay immediately a special assessment of $100.00 as to Count One of the Indictment
filed on February 14, 2024.
The defendant shall notify the United States Attorney for this district within thirty days of any change of
name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this
judgment are fully paid.
Sentence imposed July 11, 2024.
____________________________________________
MARK T. PITTMAN
U.S. DISTRICT JUDGE
Signed July 15, 2024.
24-10633.88
Case 4:24-cr-00027-P Document 52 Filed 07/15/24
Page 2 of 5 PageID 172
Page 2 of 5
Judgment in a Criminal Case
Defendant: JAMAION WILSON
Case Number: 4:24-CR-00027-P(1)
IMPRISONMENT
The defendant, JAMAION WILSON, is hereby committed to the custody of the Federal Bureau of Prisons
(BOP) to be imprisoned for a term of One Hundred Twenty (120) months as to Count One of the Indictment
filed on February 14, 2024. This sentence shall run concurrently with any future sentence which may be imposed
in Case No. 1782983D in the 213th District Court, Tarrant County, Texas as this offense is related to the instant
offense. This sentence shall run consecutively with any future sentence which may be imposed in Case No.
1799382 in Tarrant County Criminal Court No. 9 as this offense is unrelated to the instant offense.
The Court recommends to the Bureau of Prisons that the defendant be incarcerated at the FMC Fort Worth
facility, or as close to the Dallas, Fort Worth, TX area as possible.
The defendant is remanded to the custody of the United States Marshal.
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be placed on supervised release for a term of Three
(3) years as to Count One of the Indictment filed on February 14, 2024.
While on supervised release, in compliance with the standard conditions of supervision adopted by the
United States Sentencing Commission, the defendant shall:
1) The defendant shall report to the probation office in the federal judicial district where he or she is
authorized to reside within 72 hours of release from imprisonment, unless the probation officer
instructs the defendant to report to a different probation office or within a different time frame;
2) After initially reporting to the probation office, the defendant will receive instructions from the
court or the probation officer about how and when to report to the probation officer, and the
defendant shall report to the probation officer as instructed;
3) The defendant shall not knowingly leave the federal judicial district where he or she is authorized
to reside without first getting permission from the court or the probation officer;
4) The defendant shall answer truthfully the questions asked by the probation officer;
5) The defendant shall live at a place approved by the probation officer. If the defendant plans to
change where he or she lives or anything about his or her living arrangements (such as the people
the defendant lives with), the defendant shall notify the probation officer at least 10 days before
the change. If notifying the probation officer at least 10 days in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of
becoming aware of a change or expected change;
6) The defendant shall allow the probation officer to visit the defendant at any time at his or her home
or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by
the conditions of the defendant's supervision that he or she observed in plain view;
24-10633.89
Case 4:24-cr-00027-P Document 52 Filed 07/15/24
Page 3 of 5 PageID 173
Judgment in a Criminal Case
Defendant: JAMAION WILSON
Case Number: 4:24-CR-00027-P(1)
Page 3 of 5
7) The defendant shall work full time (at least 30 hours per week) at a lawful type of employment,
unless the probation excuses the defendant from doing so. If the defendant does not have full-time
employment, he or she shall try to find full-time employment, unless the probation officer excuses
the defendant from doing so. If the defendant plans to change where the defendant works or
anything about his or her employment (such as the position or the job responsibilities), the
defendant shall notify the probation officer at least 10 days before the change. If notifying the
probation officer in advance is not possible due to unanticipated circumstances, the defendant shall
notify the probation officer within 72 hours of becoming aware of a change or expected change;
8) The defendant shall not communicate or interact with someone the defendant knows is engaged in
criminal activity. If the defendant knows someone has been convicted of a felony, the defendant
shall not knowingly communicate or interact with that person without first getting the permission
of the probation officer;
9) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify
the probation officer within 72 hours;
10) The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device,
or dangerous weapon (i.e., anything that was designed , or was modified for, the specific purpose
of causing bodily injury or death to another person, such as nunchakus or tasers);
11) The defendant shall not act or make an agreement with a law enforcement agency to act as a
confidential human source or informant without first getting the permission of the court;
12) If the probation officer determines that the defendant poses a risk to another person (including an
organization), the probation officer may require the defendant to notify the person about the risk
and the defendant shall comply with that instruction. The probation officer may contact the person
and confirm that the defendant has notified the person about the risk; and,
13) The defendant shall follow the instructions of the probation officer related to the conditions of
supervision.
In addition the defendant shall:
not commit another federal, state, or local crime;
not possess illegal controlled substances;
not possess a firearm, destructive device, or other dangerous weapon;
cooperate in the collection of DNA as directed by the U.S. probation officer;
submit to one drug test within 15 days of release from imprisonment and at least two periodic drug
tests thereafter, as determined by the court;
24-10633.90
Case 4:24-cr-00027-P Document 52 Filed 07/15/24
Page 4 of 5 PageID 174
Page 4 of 5
Judgment in a Criminal Case
Defendant: JAMAION WILSON
Case Number: 4:24-CR-00027-P(1)
pay the assessment imposed in accordance with 18 U.S.C. § 3013;
not communicate, or otherwise interact, with any known member of the Crips gang, without first
obtaining the permission of the probation officer; and,
participate in outpatient mental health treatment services as directed by the probation officer until
successfully discharged, which services may include prescribed medications by a licensed physician,
with the defendant contributing to the costs of services rendered (copayment) at a rate of at least $25
per month.
FINE/RESTITUTION
The Court does not order a fine or costs of incarceration because the defendant does not have the financial
resources or future earning capacity to pay a fine or costs of incarceration.
Restitution is not ordered because there is no victim other than society at large.
FORFEITURE
Pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c), it is hereby ordered that defendant’s interest in
the following property is condemned and forfeited to the United States: an olive-green colored, Palmetto State
Armory, Palmetto Dagger, 9-millimeter caliber firearm.
24-10633.91
Case 4:24-cr-00027-P Document 52 Filed 07/15/24
Page 5 of 5 PageID 175
Page 5 of 5
Judgment in a Criminal Case
Defendant: JAMAION WILSON
Case Number: 4:24-CR-00027-P(1)
RETURN
I have executed this judgment as follows:
Defendant delivered on _____________________ to ___________________________________
at ________________________________________________, with a certified copy of this judgment.
United States Marshal
BY
Deputy Marshal
24-10633.92
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.