Constitutional Scope of § 922(g)(1) for Burglary Convicts & Sentencing Enhancement via Attempted First-Degree Murder Cross-Reference

Introduction

United States v. Lopez, 24-50182 (5th Cir. June 6, 2025), addresses two core issues: the constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment (and, in preservation, the Commerce Clause) and the correct application of the Sentencing Guidelines cross-reference to attempted first-degree murder. The appellant, Zachary Lopez, was convicted in the Western District of Texas for being a felon in possession of firearms after surveillance footage showed him firing at a vehicle. He challenged § 922(g)(1) on both facial and as-applied Second Amendment grounds post-Bruen, sought to preserve a Commerce Clause argument, and disputed the Probation Office’s cross-reference from § 2K2.1 to § 2A2.1(a)(1) for attempted first-degree murder. The Fifth Circuit, in a per curiam opinion, affirmed both the statute’s constitutionality and the sentencing enhancement.

Summary of the Judgment

The court held that § 922(g)(1)—which bars possession of firearms by individuals with felony convictions—does not violate the Second Amendment as applied to Lopez, a convicted burglar, nor in a facial challenge; it is consistent with Bruen’s test and settled Fifth Circuit precedent.
The court rejected Lopez’s preserved Commerce Clause argument as foreclosed by existing Fifth Circuit caselaw (Alcantar, Perryman).
On sentencing, the court found no clear error in the district court’s factual finding that Lopez intended to kill when he fired into a departing vehicle, thereby warranting the cross-reference to § 2A2.1(a)(1) (attempted first-degree murder). The resulting Guidelines range and 156-month term were affirmed.

Analysis

Precedents Cited

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Established the two-step framework for Second Amendment challenges—(1) text and (2) historical tradition analysis.
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024): Rejected as-applied and facial Second Amendment challenges to § 922(g)(1) for theft-related offenses; held that historical tradition supports disarming those with felony convictions.
United States v. Schnur, 132 F.4th 863 (5th Cir. 2025): Confirmed Diaz’s bar on as-applied challenges for burglary convictions under § 922(g)(1).
United States v. Contreras, 125 F.4th 725 (5th Cir. 2025): Reinforced that facial challenges to § 922(g)(1) are foreclosed by Diaz.
United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) & Perryman, 965 F.3d 424 (5th Cir. 2020): Held § 922(g)(1) valid under the Commerce Clause despite minimal nexus requirements.
United States Sentencing Guidelines § 2K2.1 & § 2A2.1(a)(1): Cross-reference mechanism for elevating sentencing when conduct constitutes attempted first-degree murder under 18 U.S.C. § 1111.
United States v. Hernandez, No. 24-50197, 2025 WL 1233130 (5th Cir. Apr. 29, 2025): Inferred specific intent to kill from aiming and firing at a person or vehicle.

Legal Reasoning

Under Bruen’s two-step test, the Fifth Circuit first confirmed that Lopez’s conduct—possession of firearms as a felon—falls within the Second Amendment’s plain text exclusion (“the people who are felons”). The burden then shifts to the government to show a historical tradition of disarming convicted felons. The panel relied heavily on Diaz and Schnur to conclude that burglary convictions, like other theft-related felonies, fit within the Nation’s longstanding tradition of firearm regulation dating back to early colonial and state statutes.

For the Commerce Clause challenge, the court observed that § 922(g)(1) applies only to firearms that have moved in or affected interstate commerce—a minimal nexus historically upheld since Wickard v. Filburn era jurisprudence. Alcantar and Perryman left no room for re-litigation of that principle.

On sentencing, the court applied de novo review to the district court’s interpretation of the Guidelines and clear-error review to its factual findings. It concluded that (1) Lopez’s firing at a fleeing vehicle after a heated verbal altercation sufficed to infer “specific intent to kill,” and (2) the district court reasonably adopted the Presentence Report’s cross-reference to attempted first-degree murder under § 2A2.1(a)(1). The record video and officer testimony provided a “plausible” basis for that inference, foreclosing any clear-error finding.

Impact

United States v. Lopez reaffirms and extends key Fifth Circuit holdings in three significant ways:

Second Amendment Jurisprudence Post-Bruen
It cements the principle that § 922(g)(1) is categorically constitutional when applied to burglary and other theft-related felons, significantly narrowing the path for as-applied and facial challenges under Bruen within this circuit.
Commerce Clause Stability
By reaffirming Alcantar and Perryman, the court signals that challenges to the minimal interstate-nexus requirement of § 922(g)(1) will continue to fail absent Supreme Court or en banc intervention.
Sentencing Guideline Cross-References
The decision illustrates the judiciary’s deference to district courts in inferring specific intent from circumstantial evidence—here, aimed gunfire at a vehicle—thereby validating the cross-reference to attempted first-degree murder and likely influencing guideline applications in similar shooting contexts.

Complex Concepts Simplified

Bruen Two-Step Test: First check if the text of the Second Amendment covers the conduct. If yes, the government must show that such regulation is part of America’s historical tradition of gun control.
Facial vs. As-Applied Challenge: A facial challenge claims a law is always unconstitutional; an as-applied challenge claims it is unconstitutional in a particular context. Facial challenges are harder to win because the challenger must show no valid application exists.
Commerce Clause Nexus: To regulate firearm possession, Congress needs only show the weapon has traveled in or affected interstate commerce at some point—a minimal but constitutionally sufficient link.
Guidelines Cross-Reference: Under U.S.S.G. § 2K2.1(c)(1)(A), if a defendant’s firearm offense involved conduct analogous to a more serious offense (here, attempted first-degree murder under § 2A2.1(a)(1)), the court “cross-references” to the higher offense’s guideline range.
Clear-Error Standard: Appellate courts will uphold a district court’s factual findings unless the record leaves them “with the definite and firm conviction that a mistake has been made.”

Conclusion

United States v. Lopez stands as a comprehensive reaffirmation of the Fifth Circuit’s approach to modern Second Amendment and sentencing issues. It confirms that § 922(g)(1) withstands both facial and as-applied Second Amendment scrutiny for burglary convictions, that its minimal interstate-commerce nexus is beyond reproach, and that sentencing courts may infer specific intent to kill from aimed gunfire—thereby justifying the attempted murder cross-reference. Practitioners should view Lopez as controlling authority against renewed challenges to the breadth of § 922(g)(1) and as guidance on the application of § 2K2.1’s cross-reference when defendants fire at persons or vehicles.