Compatibility and Proximity Control: Third Circuit Reaffirms LCM Capability Under § 2K2.1(a)(3), Applies Perez’s Close‑Proximity Presumption, and Rejects Probationer’s Second Amendment Challenge

Introduction

In United States v. Jerome Edmond, No. 24-2837 (3d Cir. Sept. 10, 2025) (not precedential), the Third Circuit affirmed a 100‑month sentence imposed after a guilty plea to drug trafficking and felon‑in‑possession charges. The court rejected four challenges: (1) to the base offense level under USSG § 2K2.1(a)(3) for a semiautomatic firearm capable of accepting a large‑capacity magazine (LCM); (2) to the four‑level enhancement under USSG § 2K2.1(b)(6)(B) for possessing a firearm “in connection with” another felony (drug trafficking); (3) to the calculation of criminal‑history points, including for juvenile adjudications; and (4) to the constitutionality of 18 U.S.C. § 922(g)(1) as applied to a probationer.

Although the disposition is non‑precedential, it consolidates several important Third Circuit sentencing and Second Amendment strands: it applies the rebuttable presumption recognized in United States v. Perez for the “in connection with” enhancement when firearms are found near drugs or paraphernalia, clarifies that compatibility and proximity evidence suffices to show LCM capability under § 2K2.1(a)(3), treats juvenile adjudications as separate where there is an intervening arrest, and, in line with recent circuit authority, holds that probationers lack a Second Amendment right to possess firearms, foreclosing an as‑applied challenge to § 922(g)(1).

Summary of the Opinion

Base offense level under § 2K2.1(a)(3): No plain error in finding that the Glock pistol was a semiautomatic firearm “capable of accepting a large capacity magazine.” The firearms and four high‑capacity magazines were found in Edmond’s residence, and three magazines matched the Glock’s caliber—sufficient proof of capability by a preponderance of the evidence.
Four‑level “in connection with” enhancement under § 2K2.1(b)(6)(B): No clear error. Under Perez, Application Note 14(B) creates a rebuttable presumption in drug‑trafficking cases when a firearm is in close proximity to drugs or related paraphernalia. The gun was in a backpack with a digital scale, which qualifies as paraphernalia.
Criminal history: No error in treating two juvenile adjudications as separate under § 4A1.2(a)(2) due to an intervening arrest. As to the length of juvenile confinement under § 4A1.2(d)(2), even if one or both offenses should have scored only one point (rather than two) because the pronounced sentence was not “at least sixty days,” the reduction would not have changed Edmond’s criminal history category (12 points to 10 points, both Category V). Any error was therefore harmless.
Second Amendment challenge: As applied to a probationer, § 922(g)(1) is constitutional. Citing United States v. Moore and United States v. Quailes, the court held a person on probation has no Second Amendment right to possess a firearm.

Analysis

Precedents Cited and Their Role

United States v. Kirschner, 995 F.3d 327 (3d Cir. 2021): Confirms that factual findings relevant to Guidelines calculations are reviewed for clear error. This frames the deferential posture toward the district court’s fact‑bound sentencing determinations.
United States v. Couch, 291 F.3d 251 (3d Cir. 2002): Establishes plain‑error review for unpreserved objections. Edmond failed to preserve the § 2K2.1(a)(3) challenge, raising the bar to relief.
United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc): Holds that facts supporting Guidelines enhancements must be proved by a preponderance of the evidence. The government met this standard for LCM capability and the “in connection with” nexus.
United States v. Perez, 5 F.4th 390 (3d Cir. 2021): Interprets Application Note 14(B) to § 2K2.1(b)(6)(B) as creating a rebuttable presumption that a firearm found in close proximity to drugs or paraphernalia is possessed “in connection with” drug trafficking. This is the linchpin for the four‑level enhancement here.
United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc): Cited for recognizing digital scales as drug distribution paraphernalia in the context used here. Nasir’s broader significance on guideline commentary deference also lurks in the background; but Perez remains controlling on Note 14(B).
United States v. Isaac, 655 F.3d 148 (3d Cir. 2011): Provides the harmless‑error rule for Guidelines errors—if the same advisory range applies, the error is harmless. The court invoked this to dispatch the juvenile‑history points argument.
United States v. Drozdowski, 313 F.3d 819 (3d Cir. 2002): Confirms clear‑error review for factual findings related to sentencing and constitutional claims’ predicates.
United States v. Moore, 111 F.4th 266 (3d Cir. 2024): Holds that individuals on probation lack a Second Amendment right to possess firearms, defeating as‑applied challenges to § 922(g)(1).
United States v. Quailes, 126 F.4th 215 (3d Cir. 2025): Extends Moore, holding § 922(g)(1) is constitutional as applied to convicts on parole or probation. This forecloses Edmond’s as‑applied Bruen challenge.

Legal Reasoning by Issue

1) Base Offense Level under USSG § 2K2.1(a)(3)

Issue and standard: Edmond argued the Glock was not shown to be “capable of accepting a large capacity magazine” because there was insufficient proof that the specific magazines could be used with that specific firearm. The challenge was unpreserved; thus the panel reviewed for plain error, a highly deferential standard requiring an error that is clear or obvious, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Reasoning: The record showed that agents recovered two firearms and four high‑capacity magazines from Edmond’s residence, and three of the magazines matched the Glock’s caliber. That satisfies the preponderance standard that the firearm was capable of accepting a large‑capacity magazine. The court did not require proof that a particular magazine was inserted into the gun or that the magazine was originally manufactured for the exact Glock model; rather, proximity and caliber compatibility sufficed.

Takeaway: In the Third Circuit, capability under § 2K2.1(a)(3) may be established through circumstantial evidence—especially the co‑location of high‑capacity magazines with the firearm and caliber compatibility. This is a practical, evidence‑of‑compatibility approach, not a strict identity‑of‑make‑and‑model test.

2) Four‑Level Enhancement under USSG § 2K2.1(b)(6)(B)

Issue and standard: Edmond contested the “in connection with” enhancement, claiming insufficient nexus between the guns and drug trafficking. The panel reviewed the factual finding for clear error.

Reasoning: Under Perez, Application Note 14(B) creates a rebuttable presumption that the enhancement applies when a firearm is found in close proximity to drugs or related paraphernalia in a drug‑trafficking case. The government only needed to show the predicate facts by a preponderance of the evidence. Here, the gun was found in a backpack alongside a digital scale—classic drug distribution paraphernalia. That proximity triggers the Perez presumption, which Edmond did not rebut.

Takeaway: The Perez presumption remains operative post‑Nasir for § 2K2.1(b)(6)(B). Close physical proximity to a scale alone can suffice in a trafficking case, absent persuasive rebuttal evidence that the proximity was incidental or unrelated to trafficking.

3) Criminal History Calculations (USSG § 4A1.2)

Separate offenses: The Guidelines treat prior sentences as separate if there was an intervening arrest. The district court found such an intervening arrest between Edmond’s two juvenile offenses, so counting them separately was not error.

Juvenile confinement length: Under § 4A1.2(d)(2)(A), a “juvenile sentence to confinement of at least sixty days” earns two points, if the release occurred within five years of the instant offense; under § 4A1.2(d)(2)(B), a lesser confinement earns one point. Edmond argued the pronounced sentence for each juvenile adjudication was not “at least sixty days,” even though the PSR showed actual placement from January 25 to September 18, 2017. The panel assumed arguendo that one or both adjudications might warrant only one point but concluded any error was harmless, because reducing two points would drop Edmond from 12 to 10 points—both within Criminal History Category V under the Sentencing Table.

Takeaway: Even meritorious scoring disputes will not warrant relief if the advisory range would remain unchanged. Litigants must connect the alleged error to a different Guidelines range or to a meaningful effect on the ultimate sentence.

4) As‑Applied Challenge to 18 U.S.C. § 922(g)(1)

Issue: Edmond argued § 922(g)(1) was unconstitutional as applied to him under the Second Amendment. The dispositive fact was that he was on probation at the time of the offense (a point he acknowledged).

Reasoning: Citing Moore and Quailes, the panel held that probationers have no Second Amendment right to possess firearms. That conclusion resolves the as‑applied challenge at the threshold: if no right attaches, the Bruen historical‑tradition analysis is unnecessary. The district court’s predicate factual finding (probation status) is reviewed for clear error; the constitutional holding follows circuit precedent.

Context: While the Third Circuit has recognized the possibility of successful as‑applied challenges to § 922(g)(1) in limited circumstances involving non‑supervised, non‑violent offenders, those decisions do not aid individuals under active criminal justice supervision. For probationers and parolees, Moore and Quailes control.

Impact

LCM capability proof: Prosecutors in the Third Circuit can establish § 2K2.1(a)(3) capability with circumstantial evidence like co‑location and caliber compatibility. Defense challenges focused on make‑and‑model exactness will face headwinds, especially on plain‑error review.
“In connection with” enhancement: Perez’s close‑proximity presumption remains potent. The presence of a firearm near drug paraphernalia (e.g., scales) will typically suffice unless the defendant offers compelling contrary proof. Expect district courts to continue applying § 2K2.1(b)(6)(B) in routine drug‑and‑gun scenarios.
Juvenile history scoring: The “intervening arrest” rule in § 4A1.2(a)(2) can separate juvenile adjudications. Disputes over whether a juvenile sentence was “to confinement of at least sixty days” must address the pronounced sentence and, critically, demonstrate how any correction would change the criminal history category, or else the error will be deemed harmless.
Second Amendment and supervised offenders: Moore and Quailes effectively foreclose as‑applied § 922(g)(1) challenges by probationers and parolees in the Third Circuit. Post‑Bruen litigation space remains primarily for non‑supervised individuals with atypical prior records; supervised offenders cannot claim a present right to possess firearms.
Standards of review matter: Unpreserved objections face the exacting plain‑error standard; preserved, fact‑bound sentencing disputes get clear‑error review. The choice of standard often decides the case.

Complex Concepts Simplified

Semiautomatic firearm capable of accepting a large‑capacity magazine (LCM): Under the Guidelines, a “large capacity magazine” typically means a magazine that can hold more than 15 rounds. “Capable of accepting” focuses on the firearm’s ability to use such a magazine. Proof may include co‑located magazines of the same caliber and evidence of compatibility; the government need not show a magazine was actually inserted during the offense.
Preponderance of the evidence: The standard used at sentencing for factual determinations. It means “more likely than not,” a lower threshold than “beyond a reasonable doubt.”
Rebuttable presumption (Perez/Note 14(B)): When a firearm is found close to drugs or distribution paraphernalia in a trafficking case, the law presumes it was possessed “in connection with” the trafficking. The defendant can rebut with contrary evidence, but absent such evidence, the enhancement applies.
Intervening arrest (§ 4A1.2(a)(2)): Prior sentences are counted separately if the defendant was arrested for the first offense before committing the second. This rule often increases criminal‑history points by preventing “grouping” of closely timed offenses.
Juvenile “sentence to confinement of at least sixty days” (§ 4A1.2(d)(2)): Scoring turns on the pronounced sentence, not merely time served, though records of placement can be relevant. Two points apply if the confinement sentence is at least 60 days and the release is within five years of the instant offense; otherwise, it may be one point.
Plain error vs. clear error:
- Plain error: Applies to unpreserved arguments; requires an error that is clear or obvious, affected substantial rights, and seriously undermines the fairness or integrity of proceedings.
- Clear error: Defers to the district court; reversal only if the appellate court is left with a definite and firm conviction that a mistake has been made.
Harmless error (Isaac): A mistake in calculating the Guidelines is harmless if it does not change the applicable advisory range. Without a range change or demonstrable effect on the sentence, relief is unlikely.
As‑applied constitutional challenge to § 922(g)(1): A claim that the statute is unconstitutional as applied to the specific defendant. In the Third Circuit, individuals on probation or parole cannot succeed because, per Moore and Quailes, they do not possess a Second Amendment right to firearm possession while under supervision.

Conclusion

The Third Circuit’s affirmance in United States v. Edmond underscores several durable principles in federal sentencing and Second Amendment jurisprudence. For firearms offenses, proximity and compatibility evidence can establish LCM capability under § 2K2.1(a)(3), and the Perez presumption robustly supports the “in connection with” enhancement when guns are found near drugs or paraphernalia. Criminal history calculations will turn on the intervening‑arrest rule and the pronounced length of juvenile confinement, with harmless‑error doctrine limiting relief where the advisory range is unaffected. On the constitutional front, Moore and Quailes leave no room for probationers to mount successful as‑applied challenges to § 922(g)(1).

Though non‑precedential, Edmond offers a concise roadmap for litigants: preserve objections to avoid plain‑error hurdles; marshal concrete evidence to rebut proximity‑based presumptions; ensure criminal‑history challenges change the Guidelines range; and recognize that supervised offenders lack a cognizable Second Amendment right to possess firearms. The opinion thus harmonizes existing Third Circuit authority and provides practical guidance for future sentencing and Second Amendment litigation within the circuit.