December 1, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. McCree, 23-30218, appeal from E.D. La.
    • Rodriguez, J. (Jones, Graves, Rodriguez, by designation) (oral argument withdrawn), Graves, J., dissenting in part; criminal, Second Amendment, sentencing
    • Affirming conviction and 70-month sentence for possession of a firearm by a felon.
    • McCree was arrested after fleeing from police and discarding a loaded Glock while carrying five rocks of crack cocaine and cash. Already a multi-felon under Louisiana law, he pleaded guilty to possessing a firearm as a felon. The district court applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), finding that the gun facilitated his drug possession, relying heavily on Jeffries and the circumstances of his flight, the quantity of crack, and the absence of personal-use paraphernalia. With the enhancement, his guideline range became 70–87 months, and he received 70 months. On appeal, McCree challenged both the enhancement and the constitutionality of § 922(g)(1), raising facial and as-applied Second Amendment arguments in light of Bruen, Collette, Diaz, and Connelly. The Fifth Circuit rejected his facial challenge as foreclosed and reached his as-applied challenge—reviewing for plain error—because intervening decisions had clarified the law.
    • The court held that McCree could not meet the plain-error standard because he had multiple violent or otherwise serious felony convictions, including aggravated battery, which Fifth Circuit precedent (Schnur) recognized as an adequate historical analogue for disarmament under Bruen. Thus, his as-applied Second Amendment claim failed. Turning to the sentencing enhancement, the court acknowledged similarities to prior cases where proximity between a gun and drugs was insufficient, but it ultimately affirmed on an alternative ground supported by the record: the amount of crack, lack of personal-use items, presence of a loaded firearm with an extended magazine, and McCree’s flight permitted a plausible finding of intent to distribute. Because a trafficking intent would automatically trigger the enhancement, the sentence was affirmed.
    • Judge Graves dissented in part. While agreeing that a facial Second Amendment challenge to 18 U.S.C. § 922(g)(1) is foreclosed by Diaz, Judge Graves contends that the majority wrongly rejects McCree’s as-applied challenge. Unlike the defendant in Schnur, whose predicate offense involved a violent aggravated battery with great bodily injury, McCree’s sole disqualifying conviction is a juvenile adjudication for aggravated battery under Louisiana law—an offense that does not require injury and whose facts are unknown. Judge Graves stresses that nothing in the PSR, factual basis, or record shows that McCree committed a violent crime, posed a danger, or has a violent criminal history. Since Schnur upheld disarmament only for offenders whose crimes clearly resembled historically violent conduct, the dissent argues there is no historical analogue supporting disarmament of someone like McCree based on an indeterminate juvenile adjudication; therefore, his as-applied challenge is not foreclosed.
    • Judge Graves also disagrees with the majority’s approval of the § 2K2.1(b)(6)(B) sentencing enhancement, concluding that the record lacks any plausible evidence that McCree’s gun possession facilitated his possession of five crack rocks. Drawing heavily on Jeffries, Henry, and Hunt, Judge Graves explains that proximity alone cannot establish facilitation for simple possession cases, and that the district court failed to identify any nexus between the firearm and the drugs beyond speculation. The crack was in a single baggie, with no paraphernalia or indicators of trafficking, and the government admitted there was no record evidence of drug distribution. McCree’s testimony that he used crack for personal coping further undercuts any inference of distribution. Because the quantity is consistent with personal use and the record shows no facilitating connection between the gun and the drugs, the dissent concludes the enhancement was clearly erroneous and respectfully dissents in part.

Unpublished decisions

  • McAdam v. Bondi, 25-60260, petition for review of BIA order
    • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
    • Denying U.K. citizen’s petition for review of BIA order denying his motion to reopen, seeking to apply for cancellation of removal.