Eleventh Circuit Reaffirms that § 922(g)(1) Remains Constitutional After Bruen and Rahimi and Treats Closing-Argument Inferences as Non-Plain Error

1. Introduction

In United States v. Anthony Mackey (11th Cir. Apr. 24, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed Anthony Tyrone Mackey’s conviction for being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(8).

The case arose from a vehicle search in which officers found a pistol in a backpack and a shotgun in the back seat of a car Mackey was driving. On appeal, Mackey raised two sets of issues:

  • Trial fairness / prosecutorial argument: he argued the government improperly argued facts not in evidence during closing and rebuttal (that he owned the backpack containing the pistol, and that the shotgun was “heavy”), and that the district court plainly erred by denying a new trial.
  • Constitutionality of § 922(g)(1): he challenged the statute under the Commerce Clause and the Second Amendment, relying on United States v. Rahimi, 602 U.S. 680 (2024) and N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022).

The panel’s opinion is principally a reaffirmation of existing Eleventh Circuit doctrine: (i) unobjected-to closing-argument claims face stringent plain-error review, and (ii) under the prior-panel-precedent rule, Second Amendment and Commerce Clause challenges to § 922(g)(1) remain foreclosed in this Circuit.

2. Summary of the Opinion

  • Improper remarks / Rule 33: Because Mackey did not object at trial, the court reviewed for plain error and found none. The prosecutor’s statements were treated as permissible inferences from trial evidence, and any potential prejudice was mitigated by jury instructions that lawyers’ statements are not evidence, including the court’s response to jury questions directing reliance on the evidence.
  • Commerce Clause: The panel held the challenge was foreclosed by Eleventh Circuit precedent holding § 922(g) constitutional and requiring only a “minimal nexus” to interstate commerce.
  • Second Amendment: The panel held the challenge was foreclosed by United States v. Rozier and reaffirmed post-Bruen and post-Rahimi decisions—especially United States v. Dubois (“Dubois II”) and United States v. Hicks.

3. Analysis

3.1. Precedents Cited

A. New trial / plain error / prosecutorial argument

  • United States v. Pulido and United States v. Vicaria: The panel used these cases to frame the district court’s discretion under Federal Rule of Criminal Procedure 33 and the breadth of the “interest of justice” standard, while emphasizing that Rule 33 does not relax preservation requirements on appeal.
  • United States v. Bobal, United States v. Smith, and United States v. Schultz: These decisions supplied the plain-error framework and the requirement that an error be “plain” by being contrary to explicit statutory text or controlling precedent.
  • United States v. Wilson: The panel applied Wilson’s two-element prosecutorial-misconduct test (impropriety + prejudice) and Wilson’s emphasis on reviewing remarks in the context of the whole trial and in light of curative instructions.
  • United States v. Lopez: Provided the four-factor prejudice assessment (misleading tendency, extent, deliberateness, and strength of proof).
  • United States v. Reeves and United States v. Rivera: These cases supported the distinction between arguing facts not in evidence (impermissible) and urging reasonable inferences from evidence (permissible). The panel relied on this line to characterize the “heavy shotgun” and “backpack ownership” comments as inferences tied to exhibits and testimony.
  • United States v. Azmat: Supplied the boundary that closing argument becomes improper when calculated to mislead or inflame passions; the panel implicitly found no such calculation.
  • United States v. Jacoby, United States v. Gallardo, and United States v. Newsome: These cases underpinned the panel’s reliance on curative instructions (statements of counsel are not evidence), the presumption juries follow them, and the idea that sufficient independent evidence can render any arguable error harmless.

B. Constitutional challenges / binding precedent in the Eleventh Circuit

  • United States v. Dubois (“Dubois II”), United States v. White, United States v. Kaley, United States v. Lightsey, and United States v. Gillis: These cases define and enforce the Eleventh Circuit’s prior-panel-precedent rule—a later panel may not depart from an earlier panel unless the Supreme Court (or the Eleventh Circuit en banc) is “clearly on point” and “demolish[es] and eviscerate[s]” the earlier decision’s foundations. The panel used this doctrine to treat Mackey’s constitutional arguments as categorically foreclosed.

C. Commerce Clause precedents for § 922(g)

  • United States v. Longoria (abrogated on other grounds by Erlinger v. United States): Cited for the Eleventh Circuit’s clear holding that § 922(g) is constitutional under the Commerce Clause. The abrogation note mattered only to show that Longoria’s Commerce Clause holding remains intact.
  • United States v. Wright: Provided the “minimal nexus” rule: proof that the firearm was manufactured out of state and therefore traveled in interstate commerce is enough.
  • United States v. McAllister: Addressed post-Lopez challenges and upheld § 922(g)(1) because the statute’s interstate-commerce element satisfies the minimal nexus requirement.
  • United States v. Scott and United States v. Morrison: Scott held Morrison did not abrogate McAllister because § 922(g)(1)’s express interstate-commerce connection “immunizes” it from the type of deficiency Morrison identified (a law lacking a sufficient commerce tie).

D. Second Amendment precedents for felon-in-possession bans

  • District of Columbia v. Heller: Central to the panel’s reasoning because Heller described felon-possession bans as “presumptively lawful” and framed the right as belonging to Americans but “not unlimited.”
  • United States v. Rozier: The controlling Eleventh Circuit precedent upholding § 922(g)(1) even when the felon claims self-defense and home possession. Rozier treated Heller’s “presumptively lawful” language as authoritative and concluded felons may be excluded “under any and all circumstances.”
  • N.Y. State Rifle & Pistol Ass'n v. Bruen: Established the “text-and-history” approach for Second Amendment challenges, but the panel relied on Eleventh Circuit precedent holding Bruen did not abrogate Rozier because Bruen repeatedly described the right as belonging to “law-abiding” citizens and as faithful to Heller.
  • United States v. Dubois, 94 F.4th 1284, 1291-93 (11th Cir. 2024) ("Dubois I"), Dubois v. United States., and United States v. Dubois (“Dubois II”): Dubois I held Rozier foreclosed a § 922(g) Second Amendment challenge; the Supreme Court vacated and remanded in light of Rahimi; Dubois II reinstated the earlier reasoning and reaffirmed Rozier, holding Rahimi did not abrogate it.
  • United States v. Rahimi: Upheld § 922(g)(8) and reiterated Heller’s “presumptively lawful” description of felon bans, which Dubois II read as reinforcing, not weakening, Rozier. Rahimi also rejected “responsible” as a stand-alone vague test for disarmament; the panel treated this as not undermining Rozier’s binding force.
  • United States v. Hicks: A recent Eleventh Circuit decision explicitly stating Rozier and Dubois II continue to foreclose Second Amendment challenges to § 922(g)(1).

3.2. Legal Reasoning

A. Closing argument and the absence of a contemporaneous objection

The opinion’s trial-error discussion turns on two linked propositions: (1) failure to object at trial triggers plain-error review, and (2) closing argument may include reasonable inferences from admitted evidence.

Applying United States v. Reeves and United States v. Rivera, the panel treated the prosecutor’s “heavy” shotgun remark as an inference from photographs and testimony about visibility in the back seat, offered to support a knowledge inference. Likewise, it treated backpack ownership as inferable from the car owner’s testimony (no backpack when the car was lent; owner disclaimed ownership) combined with officer testimony (Mackey was the only occupant and other belongings were in the back seat with the backpack).

Even assuming arguable impropriety, the panel relied on United States v. Jacoby and related curative-instruction precedent: the jury was told lawyers’ statements are not evidence, and when the jury asked about the shotgun’s weight and backpack ownership, the court directed the jury back to the record. Under United States v. Gallardo and United States v. Newsome, the panel concluded Mackey had not shown incurable prejudice or a reasonable probability of a different outcome.

B. Commerce Clause challenge—categorically foreclosed

The panel’s Commerce Clause discussion is brief because the issue is settled in the Circuit: § 922(g) contains an interstate-commerce element and is constitutional so long as the government proves the “minimal nexus” described in United States v. Wright. The opinion cites United States v. Longoria, United States v. McAllister, and United States v. Scott to show that neither Lopez-type nor United States v. Morrison-type limits undo § 922(g)(1) in this Circuit.

C. Second Amendment challenge—binding precedent after Bruen and Rahimi

The panel’s Second Amendment holding is an application of the prior-panel-precedent rule: United States v. Rozier controls unless the Supreme Court has clearly overruled it.

Mackey invoked N.Y. State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi, but the panel relied on United States v. Dubois (“Dubois II”) and United States v. Hicks to conclude those decisions do not abrogate Rozier. The key logic is:

  • Bruen adopted a text-and-history method but repeatedly described the protected class as “law-abiding” citizens and presented itself as faithful to Heller.
  • Rahimi upheld a different subsection (§ 922(g)(8)) and reaffirmed that felon-possession bans are “presumptively lawful,” while declining to endorse “responsible” as a freestanding disarmament criterion—an observation Dubois II read as not dislodging Rozier’s core holding.
  • Under United States v. Kaley and United States v. Lightsey, abrogation requires a Supreme Court decision “clearly on point” that “demolish[es] and eviscerate[s]” the earlier holding’s fundamental supports; the panel found that standard unmet.

3.3. Impact

A. Practical impact in the Eleventh Circuit

  • Second Amendment: The decision reinforces a now-explicit chain of Eleventh Circuit authority—United States v. Rozier → United States v. Dubois (“Dubois II”) → United States v. Hicks—holding that § 922(g)(1) challenges remain foreclosed post-Bruen and post-Rahimi. Litigants should expect panels to reject such claims unless and until the Supreme Court gives “clearer instruction” or the Eleventh Circuit sits en banc.
  • Commerce Clause: The opinion continues the longstanding “minimal nexus” approach. As-applied challenges are unlikely to succeed where the firearm’s out-of-state manufacture can be shown.
  • Trial practice: The case is a cautionary note on preservation: without a contemporaneous objection, defendants face the high bar of plain-error review. It also illustrates how courts distinguish between “facts not in evidence” and “inferences from evidence,” especially where physical exhibits (photos) and testimony support the inference.

B. Doctrinal impact beyond the Circuit

Because the opinion is “NOT FOR PUBLICATION,” it does not create new binding precedent; however, it is indicative of how the Eleventh Circuit will continue to operationalize post-Bruen and post-Rahimi Second Amendment litigation through strict adherence to internal stare decisis.

4. Complex Concepts Simplified

  • Rule 33 (“new trial in the interest of justice”): A district court may grant a new trial if justice requires, but the standard does not excuse a party’s failure to object during trial; appellate courts will still apply preservation rules.
  • Plain error: A demanding appellate standard for unpreserved issues. The defendant must show (i) an error, (ii) that is “plain” under controlling law, and (iii) that affected substantial rights; even then, the appellate court has discretion whether to correct it.
  • Curative instruction: A judge’s instruction telling jurors to disregard improper argument or to treat lawyers’ statements as non-evidence. Appellate courts generally presume juries follow these instructions.
  • “Minimal nexus” (Commerce Clause for § 922(g)(1)): The government typically satisfies the interstate-commerce element by showing the firearm was manufactured outside the state of possession—meaning it necessarily traveled in interstate commerce at some point.
  • Prior-panel-precedent rule: In the Eleventh Circuit, once a panel decides an issue, later panels are bound to follow it unless the Supreme Court (or the Eleventh Circuit sitting en banc) clearly overrules it. “Close” or “tension” with later Supreme Court reasoning is not enough.
  • “Presumptively lawful” firearm restrictions: Language from District of Columbia v. Heller, reiterated in United States v. Rahimi, indicating certain longstanding regulations—like bans on felon firearm possession—are generally assumed constitutional unless and until the Supreme Court says otherwise.

5. Conclusion

United States v. Anthony Mackey affirms a felon-in-possession conviction by (1) rejecting unpreserved claims of improper closing argument as failing plain-error scrutiny where the prosecutor’s comments were reasonable inferences and the jury received curative instructions, and (2) applying binding Eleventh Circuit precedent to hold § 922(g)(1) remains constitutional under both the Commerce Clause and the Second Amendment despite N.Y. State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi. The decision’s broader significance lies less in novel doctrine than in its clear signal that, in this Circuit, § 922(g)(1) challenges must overcome entrenched stare decisis barriers—and that trial objections remain essential to meaningful appellate review.