Bruen Does Not Abrogate Hollis: Fifth Circuit Reaffirms § 922(o)’s Machinegun Ban and Upholds Second-Degree-Murder Cross-Reference Under Plain-Error Review

1. Introduction

United States v. Wilson arises from a street-level gun transaction that escalated into homicide. Jamaion Wilson, after discovering he had been sold a fake firearm, returned to confront the seller (D.J.) and shot him repeatedly using a handgun equipped with a “Glock switch”—a machinegun conversion device—paired with an extended magazine. Wilson later admitted the shooting and pleaded guilty to unlawful possession of a machinegun under 18 U.S.C. § 922(o).

Two issues drove the appeal:

• Second Amendment: Whether § 922(o)’s ban on machinegun possession violates the Second Amendment, particularly after N.Y. State Rifle & Pistol Ass'n v. Bruen.
• Sentencing / Guidelines: Whether the district court misapplied the Sentencing Guidelines cross-reference by treating the resulting death as most analogous to second-degree murder (U.S.S.G. § 2A1.2) rather than voluntary manslaughter.

The Fifth Circuit affirmed. The majority held that its prior decision in Hollis v. Lynch remains binding and forecloses Wilson’s Second Amendment claim, and it found no plain error in the district court’s selection of the second-degree murder cross-reference.

2. Summary of the Opinion

A. Conviction

The court rejected Wilson’s Second Amendment challenge because Hollis v. Lynch held that machineguns “do not receive Second Amendment protection,” and the “rule of orderliness” prevents a panel from overruling prior panel precedent absent an intervening Supreme Court decision or en banc overruling. The court further held that Bruen did not “unequivocally” abrogate Hollis, because Hollis rested on Heller’s “dangerous and unusual” / “common use” framework that Bruen reaffirmed.

B. Sentence

Applying plain-error review, the court held the district court did not plainly err in selecting the Guidelines cross-reference to second-degree murder. Although the PSR included language suggestive of “crime of passion,” the district court expressly selected second-degree murder, and the specific facts (retrieving a 31-round magazine, confronting D.J., firing multiple rounds until he fell) supported a finding of “malice aforethought.”

3. Analysis

3.1. Precedents Cited

i. Binding-Precedent Mechanics: the “rule of orderliness”

The majority’s Second Amendment holding is as much about intra-circuit precedent as it is about firearms doctrine. The court invoked:

• Acosta v. Hensel Phelps Construction Co. for the proposition that one Fifth Circuit panel cannot overturn another.
• Stewart v. Entergy Corp. and United States v. Alcantar to define the narrow exception: only an intervening Supreme Court decision (or en banc action) permits departure.
• Martin v. Medtronic, Inc. and Gjetani v. Barr to underscore the demanding standard—abrogation must be “unequivocally directed” by controlling Supreme Court precedent.

This set of citations frames Wilson’s appeal as a threshold problem: unless Bruen unmistakably displaced Hollis v. Lynch, the panel is institutionally bound to affirm.

ii. The Machinegun Ban and Second Amendment Coverage

The decisive precedent is Hollis v. Lynch. The panel recounted Hollis as extracting three guiding principles from District of Columbia v. Heller:

• Second Amendment protection extends to weapons “in common use at the time,” and “dangerous and unusual” weapons are outside that class.
• Heller treated “M-16s” as “dangerous and unusual.”
• Technological change in ordinary military weapons does not alter the constitutional interpretation of the right.

The court emphasized that even if some of Heller’s discussion is dicta, Hollis v. Lynch treated it as highly weighty (“recent and detailed” Supreme Court dicta), citing Gearlds v. Entergy Servs., Inc.. It also stressed that Hollis conducted an “independent inquiry” into whether machineguns are “in common use,” concluding they are not.

iii. Bruen’s Effect on Pre-Bruen Case Law

Wilson’s principal legal move was to argue that N.Y. State Rifle & Pistol Ass'n v. Bruen abrogated Hollis. The majority rejected this argument by aligning Hollis with the portion of Second Amendment analysis Bruen preserved:

• The court relied on Bruen’s reaffirmation that the “historical tradition of prohibiting the carrying of dangerous and unusual weapons” supports protecting weapons “in common use at the time.”
• It used United States v. Diaz to draw the post-Bruen line: cases depending on “means-end scrutiny” are obsolete; cases that resolved the issue at “step one” (scope/coverage) can remain valid if not in direct conflict with Bruen.

This is the opinion’s most important doctrinal clarification: it treats Hollis v. Lynch as a “step one” decision that Bruen did not repudiate—indeed, Bruen repeated the premise Hollis used.

The panel further noted parallel reasoning in another circuit, citing United States v. Bridges (Sixth Circuit) as reaffirming § 922(o) post-Bruen because Bruen did not displace relevant aspects of Heller.

iv. Sentencing Cross-Reference and Homicide Analogies

The sentencing portion is built on the Guidelines cross-reference and federal homicide definitions:

• United States v. Hicks supplies the core method: determine which federal homicide offense is “most analogous” to the defendant’s conduct when death results.
• United States v. Browner and Lara v. United States Parole Comm'n are used (through Hicks) to define “malice aforethought,” including “depraved heart” recklessness.
• For evidentiary comparators supporting malice, the court cited United States v. White, United States v. Bell, and Frascarelli v. U.S. Parole Comm'n.

On standards of review, the court relied on United States v. Martinez-Rodriguez for plain-error structure, Puckett v. United States for the demanding nature of the test, and United States v. Diaz for de novo review of preserved constitutional challenges. It also referenced United States v. Lopez and United States v. Brooks to reject the defendant’s attempt to soften plain-error review by arguing “related” objections below.

Finally, the court emphasized the “no on-point authority” principle in plain-error review using United States v. McGavitt and United States v. Lainez Garcia, and it cited United States v. Russell to stop the analysis once no plain error is shown.

v. Separate Writings: Commerce Clause Doubts and En Banc Signals

Although not part of the holding, the concurring and dubitante opinions significantly shape how the bar may read the case’s future trajectory:

• Judge Willett’s concurrence questions § 922(o) on enumerated-powers grounds, invoking structural and Commerce Clause cases including United States v. Morrison, Gonzales v. Raich, United States v. Darby, and United States v. Lopez. He calls out Fifth Circuit precedent United States v. Knutson as potentially lacking a limiting principle and references critiques in United States v. Kirk and United States v. Rybar.
• Judge Ho, dubitante, signals openness to en banc reconsideration of Hollis v. Lynch, citing Bruen’s observation that weapons once “dangerous and unusual” can “cease to be so,” and notes his earlier federalism concerns in United States v. Seekins.

3.2. Legal Reasoning

A. Second Amendment: A two-level constraint—precedent first, doctrine second

The panel’s reasoning proceeds in layers:

1. Institutional constraint (rule of orderliness): Hollis v. Lynch directly held that machineguns are outside the Second Amendment, so the panel must follow it absent unequivocal Supreme Court abrogation or en banc overruling.
2. Why Bruen does not abrogate Hollis: The panel read Bruen as removing means-end scrutiny (step two), not erasing the “dangerous and unusual/common use” inquiry (step one). Because Hollis “never invoked” means-end scrutiny and relied on the “dangerous and unusual” principle Bruen reaffirmed, Bruen does not “unequivocally” overrule Hollis.

B. “Updated facts” and the common-use inquiry

Wilson attempted to re-open the “common use” analysis by citing increased machinegun numbers. The majority rejected the attempt on both procedural and substantive grounds:

• Procedural: even if numbers have changed, a panel cannot disregard binding precedent because of evolving facts; the en banc court is the proper forum.
• Substantive: the “740,000” figure includes government and dealer inventories; the opinion reasoned those are irrelevant to the self-defense-centric “common use” inquiry. The court highlighted a smaller ATF figure (machineguns “transferable to a private individual”)—closer to the numbers in Hollis v. Lynch—undercutting Wilson’s premise that the factual landscape had materially shifted.

Notably, the panel’s discussion narrows what counts as relevant “common use” evidence: it prioritizes arms held by private citizens for lawful self-defense purposes, not arms held by government entities.

C. Sentencing: Cross-reference selection under plain-error review

Wilson’s sentencing argument hinged on a line in the PSR suggesting a “crime of passion” and “sudden strong impulse,” language reminiscent of voluntary manslaughter (18 U.S.C. § 1112(a)). But the panel’s reasoning emphasized:

• Express district court finding: the district court “expressly and unambiguously” selected second-degree murder as the most analogous offense; this was not a clerical mismatch between findings and guideline.
• Holistic record: the court adopted the PSR “in its entirety,” and the specific facts strongly supported “malice aforethought” (18 U.S.C. § 1111(a))—retrieving equipment, confronting the victim, firing multiple rounds until he fell.
• Ambiguity defeats “plainness”: even if the PSR’s general phrasing gestured toward manslaughter, the specific facts pointed toward murder; where “two permissible views” exist, the error (if any) is not “clear or obvious,” defeating plain-error review.

3.3. Impact

A. Second Amendment litigation in the Fifth Circuit

United States v. Wilson fortifies § 922(o) against Second Amendment challenges within the circuit by:

• treating Hollis v. Lynch as a surviving, post-Bruen precedent because it was decided at “step one,” and
• making clear that litigants cannot bypass the rule of orderliness with “updated statistics” arguments aimed at relitigating “common use” on appeal.

Practically, future defendants challenging § 922(o) on Second Amendment grounds will need to aim at en banc reconsideration of Hollis or Supreme Court review, not panel-level re-argument.

B. Sentencing cross-references when firearms offenses result in death

On sentencing, the decision underscores that:

• PSR “labeling” (e.g., “crime of passion”) does not control if the detailed factual narrative supports malice and a murder analogy; and
• under plain-error review, ambiguity in the record will typically defeat claims that the wrong homicide guideline was “plainly” selected.

C. Signals for future en banc review (separate opinions)

While not changing the judgment, the separate opinions raise pressure points:

• Commerce Clause / enumerated powers: Judge Willett’s concurrence invites a future challenge to § 922(o) under Congress’s commerce power and suggests openness to revisiting United States v. Knutson en banc in an “appropriate case.”
• Second Amendment doctrine: Judge Ho’s dubitante flags doctrinal concern with the “dangerous and unusual” application and anticipates a petition for rehearing en banc to revisit Hollis v. Lynch.

4. Complex Concepts Simplified

• Rule of orderliness: In the Fifth Circuit, a three-judge panel must follow earlier panel decisions. Only the Supreme Court or the Fifth Circuit “en banc” (the full court) can overrule them.
• “Dangerous and unusual” / “common use”: Under Heller (as reaffirmed in Bruen), weapons widely possessed for lawful purposes may be protected; weapons viewed as both dangerous and unusual—often exemplified by the M-16—are generally outside Second Amendment coverage.
• Step one vs. step two (pre-Bruen framework): “Step one” asks whether the Second Amendment even covers the conduct/weapon. “Step two” (means-end scrutiny) weighed governmental interests against the burden on the right. Bruen rejected step two but left the threshold “coverage” inquiry intact in history-focused form.
• Guidelines cross-reference: Some Guidelines (like U.S.S.G. § 2K2.1) instruct courts to use a different guideline if the firearm was used in another offense and death resulted. The judge picks the “most analogous” federal offense guideline (e.g., murder vs. manslaughter).
• Second-degree murder vs. voluntary manslaughter: The key divider is malice. Murder requires “malice aforethought” (intent to kill, intent to cause serious bodily harm, or extreme reckless disregard). Voluntary manslaughter is an unlawful killing “without malice,” typically in “heat of passion.”
• Plain-error review: If a defendant did not preserve an objection, the appellate court will reverse only for a clear/obvious error that affected substantial rights and seriously harms the fairness or integrity of proceedings.

5. Conclusion

United States v. Wilson is a precedent about doctrinal stability after Bruen as much as it is about machineguns. The Fifth Circuit reaffirmed that Hollis v. Lynch remains binding because it rests on the “dangerous and unusual/common use” principle that Bruen reiterated, not on means-end scrutiny that Bruen rejected. The court also clarified that litigants cannot evade circuit precedent by asserting evolving factual circumstances at the panel level.

On sentencing, the decision illustrates how, under plain-error review, a district court’s selection of a murder cross-reference will stand when the detailed facts support malice, even if some PSR phrasing sounds like manslaughter. Finally, the separate writings signal potential future en banc battles—one over the Second Amendment’s application to machineguns, and another over whether § 922(o) fits within Congress’s enumerated powers.