Date: Aug 28, 2026

Forfeiture on Reconsideration: The Fifth Circuit Limits § 922(g)(1) As-Applied Review to the Timely-Made Record and a Simple-Possession Predicate

1. Introduction

United States v. Luna (5th Cir. Aug. 25, 2026) arises from a federal indictment charging Raymond Andrew Luna with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Luna’s only predicate felony was a conviction for possession of a controlled substance (simple possession).

After Luna moved to dismiss on Second Amendment grounds, the district court held that § 922(g)(1) was unconstitutional as applied to him and dismissed the indictment. The Government sought reconsideration and, for the first time, proffered records from Luna’s predicate conviction (including a police report) to argue that Luna was not merely a possessor but a drug trafficker—a category the Fifth Circuit has described as “violent felonies like drug trafficking.” The district court refused to consider the late-submitted materials and denied reconsideration.

The appeal thus presented intertwined issues:

Procedural: Can the Government, on appeal, rely on underlying-conduct evidence that the district court refused to consider—especially when the Government fails to brief the correct standard (abuse of discretion) and fails to argue error in the refusal?
Substantive Second Amendment: If only simple possession is established as the predicate, does Fifth Circuit precedent permit applying § 922(g)(1)?
Historical-analogue arguments: Do Founding-era tobacco laws provide a new analogue authorizing disarmament of “participants in illicit marketplaces”?
Scope of inquiry: May the Government justify § 922(g)(1) by pointing to other circumstances (e.g., Luna being under indictment for firearm possession), rather than the predicate felony?

2. Summary of the Opinion

The Fifth Circuit affirmed the dismissal. The majority held:

Because the district court refused to consider the Government’s newly submitted predicate-conviction materials on reconsideration, appellate review of that refusal is for abuse of discretion under Templet v. HydroChem Inc. and United States v. Jarman. The Government, however, forfeited any argument that the district court abused its discretion by failing to brief it in its opening brief, under Smith v. Sch. Bd. of Concordia Par..
The court declined to take judicial notice of the late documents, emphasizing that appellate review is ordinarily limited to what was properly before the district court at the time of decision. It relied on Craig v. Bisignano and Palasota v. Haggar Clothing Co..
With the underlying-conduct evidence procedurally unavailable, the predicate is only simple possession, which cannot support disarmament under § 922(g)(1) in this circuit, per United States v. Hembree.
The Government’s “Founding-era tobacco laws” analogue was rejected because the court had already rejected the same argument in United States v. Banuelos.
The Government could not justify disarmament by pointing to Luna’s being under indictment at the time of the alleged § 922(g)(1) violation; Fifth Circuit precedent confines the inquiry to whether the predicate felony supports disarmament, citing United States v. Diaz, United States v. Contreras, and United States v. Mitchell. The court noted that a different statute, 18 U.S.C. § 922(n), addresses indicted persons, and that United States v. Quiroz upheld § 922(n), but Luna was not charged under it.

Judge Willett concurred, focusing on an important ongoing doctrinal confusion: whether courts may consider facts underlying a qualifying conviction. He argued the apparent conflict in Fifth Circuit cases can be reconciled through a two-step framework (gatekeeping by conviction; then permissible consideration of conduct underlying that conviction), and he pointed to pending en banc review in United States v. Squire as an opportunity to bring order.

3. Analysis

3.1. Precedents Cited

A. Standards of review, reconsideration practice, and appellate forfeiture

Templet v. HydroChem Inc. — The opinion uses Templet to identify the governing standard of review for a denial of reconsideration: when the district court refuses to consider materials attached to the reconsideration motion that were not previously provided, appellate review is for abuse of discretion. This mattered because the Government’s entire “Luna is a trafficker” theory depended on late-submitted records the district court refused.
United States v. Jarman — Cited for the general proposition that denial of a motion to reconsider is reviewed for abuse of discretion. It reinforces Templet’s framework in the criminal context.
Smith v. Sch. Bd. of Concordia Par. — The procedural linchpin of the majority’s disposition. The Government did not, in its opening brief, argue that the district court abused its discretion by refusing the documents. Under Smith, a party forfeits inadequately briefed arguments. The majority treats this as dispositive: without a preserved challenge to the refusal, the appellate court cannot reach the underlying materials.

B. Record limitations and judicial notice on appeal

Craig v. Bisignano — The opinion quotes Craig for the principle that the appellate court ordinarily should not take judicial notice of documents available before the district court’s decision but not tendered. Craig blocks an “end-run” around the record by labeling the documents “judicially noticeable.”
Palasota v. Haggar Clothing Co. — Reinforces that appellate consideration is limited to information properly before the district court at the time of its decision. Together with Craig, Palasota supplies the court’s doctrinal reason to refuse the Government’s request for de novo-style consideration of extra-record proof.
United States v. Clark — The Government invoked Clark to argue the court “may look at the record amassed by the district court and the parties.” The panel distinguished Clark because the Government there timely asserted the “new fact” in response to a motion to dismiss, unlike here where the Government neither timely presented the evidence nor even mentioned the trafficking facts at the relevant time.

C. Substantive § 922(g)(1) / Second Amendment precedents (post-Bruen Fifth Circuit doctrine)

United States v. Kimble — The majority references Kimble for the proposition that Congress can categorically disarm those convicted of “violent felonies like drug trafficking.” Importantly, Kimble is part of the Government’s attempted pivot: if Luna’s “possession” conviction can be reframed as trafficking via underlying facts, then disarmament could follow. Procedurally, however, that reframing fails because the evidence was excluded and the Government forfeited the abuse-of-discretion issue.
United States v. Hembree — Controls the outcome once only simple possession remains. The court treats Hembree as establishing that simple possession cannot support a § 922(g)(1) conviction. Thus, after procedural rulings strip away the trafficking narrative, the constitutional issue collapses into straightforward application of Hembree.
United States v. Banuelos — Disposes of the Government’s “Founding-era tobacco laws” analogue, rejecting it again on the same basis as Banuelos: those statutes addressed acts like “smuggling,” “forging,” or “embezzling,” not mere possession.
United States v. Diaz — Cited for the rule that, when assessing predicate offenses under § 922(g)(1), the inquiry focuses on prior convictions punishable by more than one year.
United States v. Contreras and United States v. Mitchell — Cited to emphasize that additional offenses or broader conduct do not expand the universe of what matters for § 922(g)(1): the panel confines the inquiry to whether the predicate felony supports disarmament, invoking the “rule of orderliness” as described in Mitchell.
United States v. Quiroz — Supports the observation that § 922(n) (indicted-person firearm restriction) has been upheld against a Second Amendment challenge in this circuit, highlighting that Congress addressed “under indictment” status through a different statute than § 922(g)(1).

D. Concurrence: reconciling internal Fifth Circuit tensions

Judge Willett’s concurrence catalogs the circuit’s developing and sometimes conflicting methodology for § 922(g)(1) as-applied challenges, referencing a large body of Fifth Circuit and Supreme Court authority, including: Lange v. California, Nieves v. Bartlett, New York State Rifle & Pistol Ass'n v. Bruen, and, for methodological analogy, Taylor v. United States (ACCA’s categorical approach). He also discusses intra-circuit cases such as United States v. Morgan, United States v. Simpson, United States v. Mancilla, United States v. Debrow, and the forthcoming en banc proceedings in United States v. Squire.

3.2. Legal Reasoning

A. The majority’s core holding is procedural—and it is outcome-determinative

The Government’s appellate theory depended on characterizing Luna’s predicate conviction as functionally “drug trafficking” through underlying records. The panel, however, resolves the case before reaching that merits question:

Step 1 (standard of review): Under Templet v. HydroChem Inc., refusal to consider new materials triggers abuse-of-discretion review.
Step 2 (forfeiture): Under Smith v. Sch. Bd. of Concordia Par., failure to argue abuse of discretion in the opening brief forfeits the point. This locks in the district court’s refusal to consider the new materials.
Step 3 (no appellate workarounds): The Government’s de novo/judicial-notice argument is blocked by Craig v. Bisignano and Palasota v. Haggar Clothing Co., preserving the boundary between trial-court fact development and appellate review.

The majority thereby enforces a disciplined appellate posture: if a litigant wants underlying facts considered, it must (i) timely put them in the district-court record, and (ii) properly preserve and brief any challenge to their exclusion.

B. With only “simple possession” left, Hembree controls

Once the court treats the record as limited to “the fact that [Luna] was convicted of simple possession,” the constitutional question becomes essentially foreclosed. The panel applies United States v. Hembree to hold that simple possession “cannot support a § 922(g)(1) conviction.”

Notably, the panel does not re-litigate the Second Amendment methodology in full; it applies circuit precedent through the rule of orderliness. The decision is thus a strong example of how procedural rulings about the appellate record can dictate the constitutional outcome.

C. Rejection of the “tobacco laws” analogue confirms Banuelos’s narrowing of historical comparisons

The Government attempted to distinguish Hembree by proposing a new historical analogue: Founding-era tobacco laws that allegedly punished “participants in illicit marketplaces.” The panel rejects this as previously rejected in United States v. Banuelos, emphasizing that those statutes criminalized specific commercial frauds and smuggling-related conduct, not mere possession. This reinforces a key feature of the Fifth Circuit’s Bruen-era analysis: analogues must match the type of conduct regulated, not merely share a theme of “illicitness.”

D. The predicate-felony-only focus rejects “current indictment” as a substitute justification under § 922(g)(1)

The Government’s final argument—that Luna could be disarmed because he was under indictment at the time—fails because Fifth Circuit § 922(g)(1) doctrine focuses on whether the predicate felony supports disarmament. The majority cites United States v. Diaz, United States v. Contreras, and United States v. Mitchell for that narrowing principle.

The court’s reference to § 922(n) and United States v. Quiroz is doctrinally important: it signals that “indicted-person” restrictions are analyzed under the statute designed for that status, rather than being imported into § 922(g)(1) as an ad hoc justification.

3.3. Impact

A. Litigation conduct: prosecutors must build the predicate record early

Luna strongly incentivizes the Government to present Shepard-like conviction materials (and any other permissible predicate-conduct evidence under circuit precedent) before dismissal—because an after-the-fact attempt to supplement the record may be excluded, and any appeal must squarely brief the abuse-of-discretion issue. Practically, the opinion elevates record-development diligence to a case-dispositive factor in § 922(g)(1) Second Amendment litigation.

B. Appellate practice: forfeiture doctrine will decide constitutional cases

By enforcing Smith v. Sch. Bd. of Concordia Par. in a high-stakes constitutional context, Luna underscores that Fifth Circuit panels will treat briefing rules as non-optional, even where the Government urges de novo review. This may shape how parties structure opening briefs in Bruen-era firearm cases, devoting significant attention to standards of review and preservation.

C. Substantive Second Amendment doctrine: simple possession predicates remain non-disarming (for now)

Luna confirms the practical reach of United States v. Hembree: when the predicate is simple drug possession, § 922(g)(1) prosecutions in the Fifth Circuit are vulnerable to as-applied challenges, unless the Government can (procedurally and substantively) bring the case within a different category—such as drug trafficking—consistent with United States v. Kimble.

D. The concurrence’s “two-step” reconciliation may guide district courts pending en banc review

While not controlling, Judge Willett’s concurrence supplies a roadmap for resolving a recurring district-court question: may courts consider conduct underlying the predicate conviction? He argues the cases can be harmonized as follows:

Diaz/Kimble answer the gatekeeping question: which incidents enter the analysis (qualifying convictions, not generalized history).
Contreras/Morgan answer the scope question: once a qualifying conviction is in, the court may consider the conduct underlying it (when properly established).

The concurrence also spotlights United States v. Squire (en banc) as a likely inflection point that could unify or revise the circuit’s approach. Until then, Luna’s majority opinion signals that whatever the substantive scope might be, parties must satisfy procedural prerequisites to invoke it.

4. Complex Concepts Simplified

“As-applied” Second Amendment challenge: A claim that a statute may be constitutional in general but unconstitutional when applied to a specific person given their particular predicate conviction and circumstances. Here, the district court held § 922(g)(1) unconstitutional as applied to Luna.
Motion for reconsideration: A request that the trial court revisit a prior order. If the moving party presents evidence it could have presented earlier, district courts often refuse to consider it. That refusal is typically reviewed for abuse of discretion.
Abuse of discretion vs. de novo review: De novo means the appellate court decides the issue fresh. Abuse of discretion is deferential: the appellant must show the district court made a clear error of judgment. In Luna, the key issue (refusal to consider late materials) was abuse-of-discretion review under Templet v. HydroChem Inc..
Forfeiture for inadequate briefing: If a party does not properly develop an argument in its opening brief, the appellate court can treat the point as forfeited. Under Smith v. Sch. Bd. of Concordia Par., the brief must engage the district court’s reasoning and explain why it was wrong.
Judicial notice: A mechanism allowing courts to accept certain facts without proof because they are not reasonably disputable. Luna reiterates (via Craig v. Bisignano) that judicial notice is not a routine way to add documents to the appellate record that a party failed to present below.
Historical analogue (Bruen method): Under New York State Rifle & Pistol Ass'n v. Bruen, the Government must justify modern firearm regulations by pointing to relevantly similar historical regulations. Luna rejects the Government’s tobacco-law analogue (again) through United States v. Banuelos.
Rule of orderliness: A Fifth Circuit principle that later panels must follow earlier precedents unless overruled by the Supreme Court or the en banc court. The majority applies existing precedent (notably United States v. Hembree) rather than revisiting first principles.

5. Conclusion

United States v. Luna establishes a practical, case-shaping rule for Fifth Circuit § 922(g)(1) Second Amendment litigation: appellate courts will not consider late-submitted predicate-offense materials when the district court refused them and the Government fails to brief abuse-of-discretion error—nor will they use judicial notice to cure that failure.

Substantively, Luna reinforces that—absent properly presented proof placing a defendant in a categorically disarmable class like drug trafficking— a predicate conviction for simple possession cannot support § 922(g)(1) under United States v. Hembree. The concurrence highlights that broader methodological questions remain unsettled and may be addressed en banc in United States v. Squire, but Luna’s message for current cases is immediate: procedure, preservation, and the trial-court record control the constitutional battlefield.