Felon Disarmament and Attempted-Murder Sentencing Under § 922(g)(1): Commentary on United States v. Scott (2d Cir. 2025)

Felon Disarmament and Attempted-Murder Sentencing Under § 922(g)(1):
Commentary on United States v. Scott (2d Cir. 2025)

I. Introduction

The Second Circuit’s summary order in United States v. Scott, No. 22‑2705‑cr (2d Cir. Dec. 10, 2025), though formally non‑precedential, is an important application of two significant strands of contemporary federal criminal law:

  • the constitutionality of the federal felon‑in‑possession statute, 18 U.S.C. § 922(g)(1), after the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and
  • the aggressive use of the Sentencing Guidelines’ cross‑reference mechanism to treat a felon‑in‑possession case as an “attempted murder” for sentencing purposes.

The defendant, William Scott, a previously convicted felon, was found guilty by a jury of a single count of possessing ammunition after a prior felony conviction, in violation of § 922(g)(1). The underlying conduct, however, was far more serious than mere possession: Scott brandished a firearm during a street dispute, fired multiple shots while chasing a fleeing individual, and wounded him in the leg twice.

At sentencing, the district court (Judge Analisa Torres, S.D.N.Y.) applied the Guidelines’ cross‑reference provisions and concluded that Scott’s conduct amounted to attempted second‑degree murder, assigning a base offense level of 27 under U.S.S.G. § 2A2.1(a). The court then imposed a sentence of 120 months’ imprisonment, the statutory maximum, followed by three years of supervised release.

On appeal, Scott advanced two primary arguments:

  1. Second Amendment challenge: He argued that § 922(g)(1) is unconstitutional under the Second Amendment in light of Bruen, contending that permanently disarming felons is inconsistent with the Nation’s historical tradition of firearm regulation.
  2. Sentencing challenge: He asserted that the district court committed procedural error by applying the Guideline for attempted murder instead of the lower Guideline for attempted manslaughter, arguing that he acted in the “heat of passion” and was provoked by the victim and his associates.

The Second Circuit (Judges Jacobs, Bianco, and Nathan) rejected both arguments and affirmed the judgment. The panel’s order offers a revealing snapshot of how the court:

  • implements its recent precedential decision in Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025), which held that § 922(g)(1) remains constitutional after Bruen, and
  • approaches fact‑intensive sentencing disputes involving intent to kill, heat‑of‑passion claims, and the need (or not) for a Fatico hearing.

II. Summary of the Opinion

The court’s disposition is straightforward:

  • Second Amendment claim: The panel held that Scott’s constitutional challenge to § 922(g)(1) is “squarely foreclosed” by Zherka v. Bondi, which reaffirmed the Second Circuit’s pre‑Bruen decision in United States v. Bogle that § 922(g)(1) is a valid restriction on the Second Amendment rights of convicted felons. Under Zherka, Congress has legislative authority, consistent with the Second Amendment, to disarm categories of persons presumed to be dangerous, including all felons. The court held that Scott’s claim fails, whether framed as a facial or an as‑applied challenge.
  • Guidelines / sentencing claim: The panel rejected Scott’s argument that he should have been sentenced under the attempted manslaughter Guideline rather than the attempted murder Guideline. Applying U.S.S.G. §§ 2K2.1, 2X1.1, and 2A2.1, the panel held that the district court did not clearly err in finding that Scott acted with specific intent to kill, and thus properly treated the conduct as attempted murder. The court further held:
    • Scott’s “heat of passion” theory was unsupported by the record, including video evidence showing no physical altercation or weapons before Scott began shooting, and
    • even if he initially felt threatened, his decision to pursue the fleeing victim and continue firing undermined any claim of manslaughter or self‑defense.
  • No need for a Fatico hearing: The court held that the district judge did not abuse her discretion in declining to hold an evidentiary (Fatico) hearing concerning Scott’s mental state at the time of the shooting, because:
    • the judge had presided over a four‑day trial and was familiar with the facts,
    • Scott did not object to the factual portions of the Presentence Report (PSR), and
    • he had an opportunity to submit written materials (including interview notes about the victim’s mental state) in his sentencing memorandum.

With these conclusions, the panel affirmed Scott’s 120‑month sentence in full.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Second Amendment and Felon Disarmament

  • New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)

    Bruen fundamentally reshaped Second Amendment doctrine by rejecting the two‑step, means‑ends scrutiny that many lower courts had been using. The Supreme Court adopted a “text‑and‑history” test: once the plain text of the Second Amendment covers an individual’s conduct, the government must justify a firearm regulation by showing it is consistent with the Nation’s historical tradition of firearm regulation.

    Defendants convicted under § 922(g)(1) have invoked Bruen to argue that the felon‑in‑possession ban is not historically grounded. Scott’s appeal is one such effort.

  • United States v. Bogle, 717 F.3d 281 (2d Cir. 2013)

    In Bogle, decided pre‑Bruen, the Second Circuit held that § 922(g)(1) “is a constitutional restriction on the Second Amendment rights of convicted felons.” That decision reflected the then‑dominant approach allowing legislatures to disarm felons as a “longstanding” and therefore presumptively lawful regulation.

  • Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025)

    Zherka is the crucial post‑Bruen precedent. There, the Second Circuit revisited the constitutionality of § 922(g)(1) under Bruen’s historical‑tradition framework, and nonetheless reaffirmed Bogle. The Scott panel quotes several key propositions from Zherka:

    • Section 922(g)(1) “is a constitutional restriction on the Second Amendment rights of convicted felons” and survives Bruen. (Zherka, 140 F.4th at 74–75.)
    • Our “historical tradition of firearm regulation” shows that Congress has “legislative power, consistent with the Second Amendment, to disarm categories of persons presumed to be dangerous.” (Id. at 90.)
    • Congress has the “authority to disarm all felons” (emphasis in the order), not just violent felons. (Id. at 74 n.8.)
    • A felony conviction is “reasonably regarded as an indication that such a person lacks the character [or] temperament necessary to be entrusted with a weapon.” (Id. at 94.)

    Thus, in Zherka, the Second Circuit concluded that the historical record supports a categorical rule disarming felons, aligning § 922(g)(1) with the type of historically grounded regulation Bruen permits.

  • United States v. Le, 902 F.3d 104 (2d Cir. 2018)

    Cited for the standard of review, Le reiterates that issues raised for the first time on appeal are reviewed only for plain error. Under that standard, a defendant must show:

    1. an error,
    2. that is clear or obvious under current law,
    3. that affects substantial rights (usually meaning it affected the outcome), and
    4. that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

    In Scott, the panel notes that the Second Amendment argument was raised for the first time on appeal and thus subject to plain error review, but because Zherka clearly forecloses the claim, there is no error at all, much less plain error.

2. Sentencing and Guidelines Cases

  • United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc)

    Cavera provides the framework for reviewing the procedural reasonableness of sentences. A district court commits procedural error if, among other things, it makes a mistake in its Guidelines calculation. Scott relies on this doctrine, arguing that the district court misapplied the Guideline by using attempted murder instead of attempted manslaughter.

  • United States v. Yilmaz, 910 F.3d 686 (2d Cir. 2018)

    Yilmaz reiterates that appellate review of sentencing is for abuse of discretion, which subsumes:

    • De novo review of legal questions (interpretation of the Guidelines), and
    • Clear error review of factual findings (such as intent or what actually occurred).

  • United States v. Norman, 776 F.3d 67 (2d Cir. 2015)

    Norman emphasizes two key sentencing principles:

    • At sentencing, factual findings need only be supported by a preponderance of the evidence, not proof beyond a reasonable doubt.
    • Where there are two permissible views of the evidence, the sentencing court’s choice between them “cannot be clearly erroneous.” This underscores the highly deferential standard for reviewing fact‑intensive sentencing decisions.

  • United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004)

    Cited for the proposition that sentencing findings may be based on circumstantial evidence and reasonable inferences. In Scott, the panel relies on circumstantial evidence such as Scott’s pursuit of the fleeing victim and multiple shots fired to infer specific intent to kill.

  • Guideline provisions and statute:

    • U.S.S.G. § 2K2.1 — the primary Guideline for unlawful possession of firearms or ammunition. Under § 2K2.1(c)(1), if the defendant used or possessed the ammunition “in connection with the commission or attempted commission of another offense,” the court must apply § 2X1.1 if that yields a higher offense level.
    • U.S.S.G. § 2X1.1 — covers attempts and conspiracies. Section 2X1.1(c)(1) directs courts to apply another Guideline section if an attempt is “expressly covered” there.
    • U.S.S.G. § 2A2.1 — covers attempted murder. It provides:
      • Base offense level 33 if the object of the offense would have constituted first‑degree murder, and
      • Base offense level 27 otherwise (i.e., attempted second‑degree murder).
      Application Note 1 incorporates the statutory definition of “murder” in 18 U.S.C. § 1111.
    • 18 U.S.C. § 1111(a) — defines murder as “the unlawful killing of a human being with malice aforethought.” First‑degree murder includes premeditated killings; other murders fall into second degree.

  • United States v. Mumuni Saleh, 946 F.3d 97 (2d Cir. 2019); United States v. Kwong, 14 F.3d 189 (2d Cir. 1994)

    These cases stand for the principle that attempted murder requires specific intent to kill. It is not enough that death was a foreseeable consequence of risky behavior; the defendant must have intended to end the victim’s life.

  • United States v. Atehortua, 69 F.3d 679 (2d Cir. 1995)

    In Atehortua, the Second Circuit upheld a district court’s finding of intent to kill where the defendant repeatedly fired a gun at federal agents from close range. The Scott panel cites this decision as an analogy: repeated, direct gunfire at a specific person supports an inference of specific intent to kill.

  • United States v. Velazquez, 246 F.3d 204 (2d Cir. 2001)

    Velazquez is cited for the “heat of passion” doctrine: under certain circumstances, a person who is adequately provoked may act without the malice required for murder. This can reduce what would otherwise be murder to manslaughter. Scott invoked this doctrine to argue that his conduct was attempted manslaughter rather than attempted murder.

  • Tripathy v. McKoy, 103 F.4th 106 (2d Cir. 2024)

    Tripathy stands for the familiar rule that issues raised only in a cursory way, without developed argumentation, are deemed forfeited. The Scott panel uses Tripathy to hold that Scott forfeited any self‑defense argument by only mentioning it in passing and not developing it in his brief.

  • United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012)

    Broxmeyer holds that a district court is not required to hold an evidentiary (Fatico) hearing at sentencing so long as the defendant is given some opportunity to rebut the government’s allegations. The court cites Broxmeyer in rejecting Scott’s argument that the failure to hold a Fatico hearing on his mental state was an abuse of discretion.

B. The Court’s Legal Reasoning

1. Constitutionality of § 922(g)(1) After Bruen

Scott argued that § 922(g)(1) — which forbids felons from possessing firearms or ammunition — is inconsistent with the Second Amendment as interpreted by Bruen, and thus unconstitutional. His claim was made for the first time on appeal, triggering plain error review under Le.

The Second Circuit’s response is brief but decisive:

  • The court describes the challenge as “squarely foreclosed” by Zherka v. Bondi.
  • It notes that Zherka reaffirmed Bogle’s conclusion that § 922(g)(1) is constitutional and survives Bruen.
  • It highlights Zherka’s central reasoning: historical tradition supports Congress’s power to disarm categories of persons presumed to be dangerous, and Congress has authority to disarm all felons because a felony conviction signals that the person may lack the character and temperament necessary to be entrusted with a weapon.

Importantly, the panel adds that it is “unclear” whether Scott intended a facial or as‑applied challenge, but concludes that “the result would be the same in either case under Zherka.” This is significant for two reasons:

  1. Facial challenges: A facial challenge argues that § 922(g)(1) is unconstitutional in all or nearly all of its applications. Under Zherka, such a challenge fails in the Second Circuit because the court has already held the statute consistent with historical tradition as applied to the class of felons generally.
  2. As‑applied challenges: Some defendants have argued that, even if § 922(g)(1) may be constitutional as to violent felons, its application to them as non‑violent or long‑rehabilitated felons is unconstitutional. The Scott panel’s statement suggests that, at least on the existing record, Zherka also forecloses an as‑applied challenge by a felon whose criminal history falls within the core category of persons Congress has chosen to disarm.

Given that Zherka is now binding Second Circuit precedent, the panel has no room to maneuver: there is no “error,” let alone plain error, in applying § 922(g)(1) to Scott. As a result, the constitutional claim is disposed of almost summarily.

2. The Guideline Cross‑Reference to Attempted Murder

The more intricate portion of the opinion concerns sentencing. Scott’s offense of conviction is § 922(g)(1), but the Guidelines instruct courts to consider how the ammunition or firearm was actually used.

The steps are as follows:

  1. Start with § 2K2.1 (unlawful possession of ammunition). Under § 2K2.1(c)(1), if the defendant used or possessed the ammunition “in connection with the commission or attempted commission of another offense,” the court must determine whether cross‑referencing produces a higher offense level.
  2. Apply § 2X1.1 if there was an “attempt.” Section 2X1.1(c)(1) then directs the court to use any Guideline that expressly covers the particular attempt.
  3. Use § 2A2.1 for attempted murder. Attempted murder is expressly covered by § 2A2.1, which sets:
    • Base offense level 33 for attempted first‑degree murder (premeditated, among other possibilities), and
    • Base offense level 27 for attempted second‑degree murder.

The district court concluded that Scott’s conduct amounted to attempted second‑degree murder and applied the base offense level 27. Scott did not argue that the shooting constituted first‑degree murder, so the question on appeal was whether it was properly treated as attempted second‑degree murder or instead as attempted manslaughter, which would carry a lower offense level.

The Second Circuit, applying de novo review to the legal framework and clear error review to the fact‑finding, agreed with the district court’s characterization. Several aspects of the court’s reasoning are notable:

  • Specific intent to kill: Citing Mumuni Saleh and Kwong, the court reiterates that attempted murder requires a specific intent to kill. It then recites the uncontroverted evidence from sentencing:

    • Scott pulled out a gun and began shooting at the victim outside a deli.
    • When the victim tried to escape by running away, Scott pursued him down the street.
    • During this pursuit, Scott fired at least two additional shots at the victim.
    • The victim was shot in the leg twice.

    This pattern of behavior — initiating gunfire, actively chasing a fleeing victim, and continuing to shoot — supports the inference that Scott intended to kill. It is functionally indistinguishable, in terms of intent, from the conduct in Atehortua, where repeated firing at federal agents justified an attempted‑murder enhancement.

  • Standard of proof and evidentiary basis: Under Norman, the government needed only to prove this intent by a preponderance of the evidence. The court further emphasizes, citing Gaskin, that sentencing judges may rely on circumstantial evidence and reasonable inferences, and here the district court had video evidence, trial testimony, and an uncontested PSR description.

  • Deference to the district court’s view of the evidence: The panel reiterates the Norman principle that when the record supports two permissible views, the district court’s choice is virtually unassailable on clear error review. Even if one could imagine a less culpable interpretation of Scott’s motives, the record comfortably supports a finding of intent to kill.

3. Rejection of the “Heat of Passion” / Attempted Manslaughter Theory

Scott attempted to reduce his culpability by arguing that he acted in the “heat of passion” due to provocation: he asserted that the victim and others directed intense hostility toward him and physically menaced him, prompting a confrontation. Under the doctrine recognized in Velazquez, adequate provocation can negate the “malice aforethought” element of murder, reducing the offense to manslaughter.

The court’s response proceeds in two steps:

  1. No sufficient provocation in the first place:

    The panel notes that video evidence “showed that there was neither a physical altercation nor any display of weapons before Scott began shooting.” In other words, whatever verbal hostility or posturing occurred, it did not reach the level of legally adequate provocation traditionally required for heat‑of‑passion mitigation (which typically involves more direct, sudden, and significant provocation).

  2. Opportunity to cool off / duty to withdraw:

    Even assuming “arguendo” (for the sake of argument) that Scott initially felt threatened, the panel stresses that once Scott fired the initial shot and the victim and companions fled, Scott had the opportunity to leave. Instead, he chose to pursue the victim and fire at least two more shots. That decision to chase and continue shooting at a retreating person is difficult to reconcile with a “heat of passion” defense and is inconsistent with any claim of necessity or self‑defense. It exemplifies deliberate, purposeful action — the kind of conduct indicative of specific intent to kill.

The court thus concludes that the district court did not clearly err in treating the conduct as attempted murder rather than attempted manslaughter. The “heat of passion” theory fails as a matter of both fact (the video evidence) and logic (pursuit and repeated shots at a fleeing victim).

4. Forfeited Self‑Defense Argument

Scott made a “passing reference” to self‑defense in his brief. The court, invoking Tripathy, holds that this undeveloped assertion is forfeited — appellate briefs must present arguments with sufficient development and analysis to permit meaningful review.

The panel nonetheless adds, “in any event,” that a self‑defense argument would fail for essentially the same reasons as the heat‑of‑passion theory:

  • Scott suggested that the victim or someone with him had a gun at the outset of the incident.
  • But the video showed that the victim’s brother only retrieved a gun from a car after Scott had already shot at the victim multiple times and fled.
  • Thus, any claimed need for defensive force did not justify Scott’s initial decision to shoot, chase, and continue firing. His conduct looks more like an aggressor’s, not a defender’s.

5. No Abuse of Discretion in Denying a Fatico Hearing

Finally, Scott contended that the district court should have held a Fatico hearing — an evidentiary hearing at sentencing — to resolve disputes about his mental state (e.g., whether he acted under provocation).

The Second Circuit rejected this argument, relying on Broxmeyer and long‑standing practice:

  • There is no absolute right to a Fatico hearing. A sentencing court need not hold such a hearing if the defendant has an opportunity to contest the government’s version of the facts in some other way.
  • Here, the district judge:
    • had presided over Scott’s four‑day trial and was already “intimately familiar” with the facts;
    • relied on a PSR to which Scott did not object on factual grounds; and
    • accepted and considered a defense sentencing memorandum containing interview notes about the victim’s mental state.

Under these circumstances, the denial of a separate evidentiary hearing was well within the district court’s discretion. The appellate panel underscores that some opportunity to respond is enough; a full evidentiary proceeding is not required whenever a defendant disagrees with the inferences the court draws from the record.

C. Impact and Practical Consequences

1. Second Amendment Challenges to § 922(g)(1) in the Second Circuit

Although Scott is a summary order and expressly “does not have precedential effect” under the Second Circuit’s rules, it is an important data point in the post‑Bruen landscape. It confirms that, after Zherka:

  • Facial Second Amendment challenges to § 922(g)(1) are effectively foreclosed in the Second Circuit. The court regards § 922(g)(1) as a categorical, historically justifiable restriction on the rights of felons.
  • As‑applied challenges by felons are also unlikely to succeed, at least where the defendant’s felony status places him squarely within the class Congress chose to disarm and there is no extraordinary factual basis to distinguish the case.
  • Lower courts and litigants can expect routine § 922(g)(1) prosecutions and convictions to survive Second Amendment scrutiny without extended historical analysis; Zherka has already performed that work for the Circuit.

In this sense, Scott reflects a normalization of Bruen: the Second Circuit has now integrated the Supreme Court’s historical‑tradition model into its doctrine but continues to uphold the core federal felon‑in‑possession prohibition.

2. Guideline Enhancements and Cross‑References in Felon‑in‑Possession Cases

On sentencing, Scott is a vivid illustration of how a seemingly “simple” § 922(g)(1) conviction can effectively become an attempted‑murder case at sentencing:

  • Guideline cross‑references are powerful: The application of § 2K2.1(c)(1) and § 2X1.1 can shift the offense level away from the base felon‑in‑possession calculation and toward the underlying violent conduct — in this case, attempted murder under § 2A2.1.
  • Intent to kill can be inferred from circumstantial evidence: Chasing and shooting at a fleeing victim multiple times, particularly at relatively close range, will almost always support a finding of specific intent to kill by at least a preponderance of the evidence.
  • Manslaughter and heat‑of‑passion mitigation are hard to establish: The court’s rejection of Scott’s “heat of passion” narrative shows that the threshold for reducing attempted murder to attempted manslaughter is relatively high, particularly where:
    • videos show no serious physical provocation or immediate threat before the defendant opens fire, and
    • the defendant had a clear opportunity to withdraw but instead escalated the confrontation by pursuing and continuing to shoot.

Practically, this decision will:

  • encourage prosecutors to rely on the attempted‑murder cross‑reference in similar cases where a felon uses a firearm or ammunition in a shooting;
  • remind defense counsel to vigorously contest both the factual basis and mental‑state inferences at sentencing (including through early objection to the PSR), particularly if they hope to argue for manslaughter rather than murder; and
  • reinforce the deference appellate courts give to district judges’ interpretations of video and testimonial evidence at sentencing.

3. The Role (and Limits) of Fatico Hearings Post‑Trial

Scott also underscores that:

  • District judges who have presided over full trials are often deemed sufficiently informed to resolve factual issues at sentencing without additional evidentiary hearings.
  • To obtain a Fatico hearing, defense counsel typically must identify concrete factual disputes that cannot be resolved from the existing record, rather than disagreements over the inferences drawn from undisputed facts.
  • Failure to object to the PSR’s factual narrative can significantly weaken later claims that an evidentiary hearing was required.

This approach promotes efficiency but places a premium on early, specific factual objections and on making a robust record at trial and in written sentencing submissions.

IV. Clarifying Key Legal Concepts

Several technical concepts in the opinion warrant brief clarification.

  • Plain Error Review

    When a defendant raises an issue for the first time on appeal, the court reviews only for “plain error.” The defendant must show:

    1. there was an error,
    2. the error was clear or obvious under current law,
    3. the error affected his substantial rights (usually by affecting the outcome), and
    4. the error seriously affected the fairness, integrity, or public reputation of the proceedings.

    This is a deliberately demanding standard meant to discourage sandbagging and to respect the trial court processes.

  • Facial vs. As‑Applied Constitutional Challenges

    • A facial challenge asserts that a statute is unconstitutional in all or virtually all of its applications.
    • An as‑applied challenge accepts that the statute may be valid generally but contends it is unconstitutional as applied to the particular defendant and his circumstances.

    Scott suggests that, under Zherka, § 922(g)(1) survives both types of challenges for felons generally in the Second Circuit.

  • Preponderance of the Evidence at Sentencing

    Unlike at trial, where guilt must be proven beyond a reasonable doubt, sentencing enhancements typically need only be supported by a preponderance — that is, more likely than not. This lower standard allows courts to consider a wide range of conduct, including acquitted or uncharged conduct, so long as it is reliably established in the record.

  • Specific Intent to Kill

    For attempted murder, it is not enough that the defendant acted recklessly or that death was a foreseeable result of his actions. The government must show that the defendant intended the victim’s death. Inferences of intent are usually drawn from conduct — for example, aiming and repeatedly firing a gun at a specific person, or, as in Scott, chasing a fleeing victim and continuing to shoot.

  • Malice Aforethought and Heat of Passion

    “Malice aforethought” is the mental element that distinguishes murder from manslaughter under 18 U.S.C. § 1111. It includes intent to kill, intent to cause serious bodily harm, or extreme recklessness showing a depraved indifference to human life.

    The heat of passion doctrine recognizes that, under extreme provocation (e.g., sudden violent attack, discovering a spouse in flagrante delicto), a person might lose self‑control. If the defendant kills in that state before cooling off, the law may treat the offense as manslaughter rather than murder, because the provocation negates the malice element. In Scott’s case, the court found the evidence insufficient to establish the kind of sudden, extreme provocation that would support heat‑of‑passion mitigation.

  • Fatico Hearing

    A Fatico hearing (named after United States v. Fatico) is an evidentiary hearing at sentencing to resolve disputed factual issues that affect the Guidelines calculation or other sentencing factors. Courts have broad discretion whether to hold such a hearing. They commonly decline to do so where:

    • the material facts are undisputed or clearly established by trial evidence, PSR, or reliable documentation, and
    • the defendant has had a meaningful opportunity to contest the facts in writing or argument.

  • Summary Order vs. Precedential Opinion

    The first page of the opinion emphasizes that “rulings by summary order do not have precedential effect” in the Second Circuit. They may be cited, but they do not create binding law for future panels in the way published opinions do. Nonetheless, summary orders are often read as practical indicators of how the court is likely to apply its precedents in similar future cases.

V. Conclusion

United States v. Scott demonstrates how the Second Circuit is handling two central issues in contemporary federal criminal law: the reach of the Second Amendment after Bruen, and the scope of sentencing enhancements in felon‑in‑possession cases involving violent conduct.

On the constitutional front, the panel treats Scott’s Second Amendment argument as foreclosed by Zherka v. Bondi, which held that § 922(g)(1) remains a constitutional restriction on felons’ possession of firearms and ammunition under the historical‑tradition framework mandated by Bruen. The court’s observation that the outcome would be the same whether the challenge is facial or as‑applied signals that, at least within the Second Circuit, felon‑disarmament challenges are effectively resolved in favor of the statute.

On sentencing, the decision confirms the potency of Guidelines cross‑references: a § 922(g)(1) conviction can be treated as attempted murder when the underlying conduct justifies that characterization. The panel illustrates how specific intent to kill can be inferred from conduct like chasing and repeatedly shooting at a fleeing victim, and it shows the difficulty of recasting such conduct as “heat of passion” or self‑defense. The opinion also underscores the limited circumstances in which a Fatico hearing is required, particularly when the trial judge has already heard extensive evidence and the defendant has not meaningfully disputed the PSR’s factual account.

While non‑precedential, Scott is doctrinally coherent and practically instructive. It cements — in application if not in formal precedent — two key propositions:

  1. In the Second Circuit, § 922(g)(1) remains constitutionally secure after Bruen as applied to felons, who are viewed as a historically disarmable class.
  2. In felon‑in‑possession cases involving shootings, courts will not hesitate to treat the conduct as attempted murder where the record supports a finding of specific intent to kill by a preponderance of the evidence, and they will afford substantial deference to the district court’s factual inferences.

For practitioners, Scott is a reminder that:

  • constitutional challenges to § 922(g)(1) face a steep uphill battle in the Second Circuit;
  • sentencing exposure in § 922(g)(1) cases can be driven far more by the manner in which the firearm or ammunition was used than by the statutory maximum itself; and
  • effective advocacy requires early, specific challenges to the factual and inferential basis for severe Guideline enhancements such as attempted murder.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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