United States v. Kendall Alston

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2025
• Docket: 23-30035
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-30035

Plaintiff-Appellee, D.C. No. 2:22-cr-00066-LK-1

v. MEMORANDUM* KENDALL ALSTON,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding

Argued and Submitted July 10, 2024 Submission Vacated July 19, 2024 Resubmitted June 16, 2025

Filed June 16, 2025 Seattle, Washington

Before: McKEOWN, CLIFTON, and BRESS, Circuit Judges.

Kendall Alston appeals from his convictions for possession of a firearm as a

felon, 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of a drug-

trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. U.S.C. § 1291. Submission of this case was vacated on July 19, 2024, pending

resolution of the en banc proceedings in United States v. Duarte, 2025 WL

1352411 (9th Cir. May 9, 2025). We affirm.

Alston’s argument that the district court erred by failing to instruct the jury

on the meaning of “in furtherance of” is foreclosed by circuit precedent. United

States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007). The updates to Ninth Circuit

Model Instruction 14.23 do not affect that conclusion, as model instructions “are

not authoritative legal pronouncements.” United States v. Tuan Ngoc Luong, 965

F.3d 973, 983 (9th Cir. 2020).

Alston’s challenge to § 922(g)(1) is likewise unavailing. He concedes that

United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir. 2010), precludes his

argument, contending only that Vongxay was abrogated by New York State Rifle &

Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). We recently held in Duarte

that the U.S. Supreme Court’s decisions in Bruen and United States v. Rahimi, 602

U.S. 680 (2024), “support Vongxay’s holding that § 922(g)(1) constitutionally

prohibits the possession of firearms by felons.” Duarte, 2025 WL 1352411 at *5.

And we upheld § 922(g)(1)’s constitutionality under the Second Amendment as

applied to non-violent felons. Id. at *3, *6, *14. Accordingly, Alston’s Second

Amendment challenge fails under Duarte.

AFFIRMED.