United States v. Reese

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 13, 2025
• Docket: 24-1069
• Status: Unpublished

Opinion

Appellate Case: 24-1069 Document: 46-1 Date Filed: 05/13/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 13, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 24-1069 & 24-1070 (D.C. Nos. 1:19-CR-00144-RM-1 & ANDREW RAPHAEL REESE, 1:23-CR-00111-RM-1) (D. Colo.) Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Defendant, Andrew Reese, pleaded guilty to possession of a firearm and

ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). In relevant part,

§ 922(g)(1) makes it unlawful for a convicted felon to “possess in or affecting

commerce, any firearm.” Defendant also admitted to violating the terms of his

supervised release by possessing a firearm and by failing to participate in substance

abuse testing. In these consolidated appeals, Defendant challenges his § 922(g)(1)

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1069 Document: 46-1 Date Filed: 05/13/2025 Page: 2

conviction (No. 24-1070) and his revocation sentence (No. 24-1069) by arguing

§ 922(g)(1) is unconstitutional under the Second Amendment and the Commerce

Clause. He appeals for preservation purposes only, conceding our precedents foreclose

his arguments. We exercise jurisdiction under 28 U.S.C. § 1291 and review

Defendant’s appeal de novo. See United States v. Dorris, 236 F.3d 582, 584 (10th Cir.

2000) (explaining we review challenges to the constitutionality of a statute de novo).

Defendant first argues we must vacate his § 922(g) conviction because it

violates the Second Amendment, citing New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) and United States v. Rahimi, 602 U.S. 680 (2024). Defendant raises

both a facial and as-applied challenge. We agree with Defendant that our precedents

foreclose his argument. In United States v. McCane, we held § 922(g)(1) does not violate

the Second Amendment. 573 F.3d 1037, 1047 (10th Cir. 2009). In addition, McCane

“upheld the constitutionality of § 922(g)(1) without drawing constitutional distinctions

based on the type of felony involved.” Vincent v. Bondi, 127 F.4th 1263, 1266 (10th Cir.

2025). McCane remains binding after Bruen and Rahimi, so Defendant’s Second

Amendment challenge fails. See id.

Defendant also argues § 922(g) violates the Commerce Clause, citing United

States v. Lopez, 514 U.S. 549 (1995). Our precedents yet again foreclose Defendant’s

argument. We have affirmed the constitutionality of § 922(g) under the Commerce

Clause on numerous occasions. See, e.g., United States v. Bolton, 68 F.3d 396, 400 (10th

Cir. 1995) (“Section 922(g)'s requirement that the firearm have been, at some time, in

interstate commerce is sufficient to establish its constitutionality under the Commerce

2 Appellate Case: 24-1069 Document: 46-1 Date Filed: 05/13/2025 Page: 3

Clause”); Dorris, 236 F.3d at 584–86 (rejecting a challenge to § 922(g)(1) based not only

on Lopez but also United States v. Morrison, 529 U.S. 598 (2000) and Jones v. United

States, 529 U.S. 848 (2000)); United States v. Urbano, 563 F.3d 1150, 1154 (10th Cir.

2009) (reiterating, “if a firearm has traveled across state lines, the minimal nexus with

interstate commerce is met and the statute can be constitutionally applied”).

***

Bound by precedent, we affirm Defendant’s § 922(g) conviction and his

revocation sentence.

Entered for the Court

Bobby R. Baldock Circuit Judge