Fourth Circuit Reaffirms that Second Amendment As-Applied Challenges to § 922(g)(1) Are Foreclosed by Hunt and that Sentencing May Consider Non-Guidelines Conduct Under § 3553(a)

1. Introduction

Tomonta Simmons pleaded guilty in the Western District of North Carolina to violating 18 U.S.C. § 922(g)(1). On appeal, his counsel filed an Anders brief asserting there were no meritorious issues but flagging two themes: (1) whether Simmons’s sentencing statement that the firearms were for self-protection supported an unconstitutional, as-applied application of § 922(g)(1) under the Second Amendment; and (2) whether the sentence was procedurally or substantively unreasonable.

Simmons did not move to withdraw his plea in the district court; he submitted a pro se letter raising the Second Amendment issue at the end of the sentencing hearing. The Fourth Circuit affirmed across the board.

2. Summary of the Opinion

• Conviction affirmed: The Second Amendment challenge failed because it is foreclosed by United States v. Hunt, and the plea colloquy substantially complied with Rule 11.
• Sentence affirmed: The sentence was both procedurally and substantively reasonable under the deferential abuse-of-discretion framework.
• Key sentencing holdings (as applied): The district court could consider Simmons’s continued firearm possession (including a “third gun”) when weighing 18 U.S.C. § 3553(a) factors even though that third gun was not treated as “relevant conduct” for Guidelines offense-level calculation; and the court complied with Rule 32’s requirement to verify PSR review.
• Due process: The judge’s community-impact remarks about firearms and crime did not reflect impermissible considerations and did not violate due process.

3. Analysis

A. Precedents Cited

1) Guilty plea validity and Rule 11 framework

• United States v. Paylor, 88 F.4th 553 (4th Cir. 2023): Cited for the baseline requirement that a guilty plea must be knowing and voluntary. This anchored the court’s rejection of any suggestion that the plea was constitutionally infirm.
• United States v. Kemp, 88 F.4th 539 (4th Cir. 2023) and United States v. Vonn, 535 U.S. 55 (2002): Used to describe the purpose of Rule 11—ensuring the defendant understands the law in relation to the facts and the rights waived.
• United States v. Taylor-Saunders, 88 F.4th 516 (4th Cir. 2023): Cited for Rule 11’s requirements that the plea be voluntary and supported by a factual basis.
• United States v. King, 91 F.4th 756 (4th Cir. 2024): Provided the standard of review—plain error—when a defendant did not seek plea withdrawal in the district court.
• United States v. Perdue, 110 F.4th 662 (4th Cir. 2024) and United States v. Olano, 507 U.S. 725 (1993): Supplied the plain-error elements and the “fairness, integrity, or public reputation” discretionary prong.

2) Second Amendment challenge to § 922(g)(1)

• United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025): The controlling authority. The panel treated Hunt as dispositive that as-applied challenges to § 922(g)(1) are foreclosed in the circuit.
• New York State Rifle & Pistol Assoc. v. Bruen, 597 U.S. 1 (2002) and United States v. Rahimi, 602 U.S. 680 (2024): Mentioned because defendants often argue that these Supreme Court decisions reframe Second Amendment methodology. The panel, following Hunt, concluded they do not abrogate Fourth Circuit precedent foreclosing as-applied challenges to § 922(g)(1).

3) Appellate review of sentencing: procedure and substance

• United States v. Smith, 134 F.4th 248 (4th Cir. 2025) and Gall v. United States, 552 U.S. 38 (2007): Established the deferential abuse-of-discretion standard for all sentences and identified common procedural errors.
• United States v. Devine, 40 F.4th 139 (4th Cir. 2022): Provided the substantive-reasonableness standard under the “totality of the circumstances.”
• United States v. Everett, 91 F.4th 698 (4th Cir. 2024): Cited for the presumption that within-Guidelines sentences are reasonable and for how a defendant may rebut that presumption.

4) Scope of sentencing information and consideration of conduct outside Guidelines “relevant conduct”

• United States v. McKinnie, 21 F.4th 283 (4th Cir. 2021): Supported the proposition that § 3553(a) permits consideration of broad conduct and characteristics when selecting a sentence.
• United States v. Elbaz, 52 F.4th 593 (4th Cir. 2022): Quoted to emphasize Congress’s directive that sentencing courts may receive and consider wide-ranging information.
• 18 U.S.C. § 3661: The statutory anchor for the breadth of permissible sentencing information (“No limitation shall be placed…”). The panel used this to reject the idea that excluding the “third gun” from Guidelines calculations barred its consideration at the § 3553(a) stage.
• Fed. R. Crim. P. 32(i)(1)(A): Imposes the duty to verify that the defendant and counsel read and discussed the PSR. The panel found compliance on this record.

5) Due process limits on sentencing remarks and impermissible factors

• United States v. Bakker, 925 F.2d 728 (4th Cir. 1991): Recognized that sentences based on impermissible considerations (e.g., race, national origin, or a judge’s religious characteristics) violate due process, but also affirmed that judges may vindicate community interests and consider community impact.
• Deyton v. Keller, 682 F.3d 340 (4th 2012): Reinforced that community impact can be a legitimate sentencing consideration.

B. Legal Reasoning

1) The Second Amendment argument could not overcome binding circuit law

Simmons’s self-protection explanation did not transform his § 922(g)(1) prosecution into a successful as-applied Second Amendment challenge. Even assuming the issue was preserved (despite being raised only at the tail end of sentencing via a pro se letter), the panel held the claim was “foreclosed” by United States v. Hunt. The opinion thus treats the Second Amendment question as a settled matter of circuit precedent, not an open inquiry into historical analogues under Bruen.

2) Rule 11 and plea validity were adequately satisfied

Applying the Rule 11 framework described in Paylor, Kemp, Vonn, and Taylor-Saunders, the panel concluded that the magistrate judge and district court “substantially complied” with Rule 11. Because Simmons did not seek plea withdrawal below, the opinion emphasizes the demanding plain-error standard from King, Perdue, and Olano, and finds no error affecting substantial rights.

3) Sentencing: “relevant conduct” limits the Guidelines calculation, not the § 3553(a) analysis

Simmons’s principal procedural objection was conceptual: the district court ruled that a third gun was not “relevant conduct” for offense-level purposes, but still referenced continued firearm possession when weighing § 3553(a). The panel rejected the claimed inconsistency.

The opinion’s logic tracks the familiar two-step sentencing structure endorsed by Gall: first calculate the advisory Guidelines range (where “relevant conduct” matters), then select a sentence under § 3553(a) (where broader information about “history and characteristics,” deterrence, and protection of the public is expressly relevant). Citing McKinnie, Elbaz, and 18 U.S.C. § 3661, the panel affirmed that courts may consider conduct and background information beyond what drives the Guidelines range—so long as it is not an impermissible factor and the sentence is adequately explained.

4) Rule 32 PSR verification and due process concerns

The panel found the district court complied with Rule 32(i)(1)(A) by verifying Simmons and counsel reviewed the PSR. On due process, the panel applied Bakker (and Deyton v. Keller) to distinguish impermissible personal or discriminatory considerations from permissible comments about community harm and public safety. The judge’s remarks about preventing innocent people from being shot were treated as legitimate community-impact considerations, not a due process violation.

C. Impact

• Second Amendment litigation in the Fourth Circuit: Even though unpublished, the opinion signals that panels will continue to treat United States v. Hunt as decisive against as-applied Second Amendment challenges to § 922(g)(1), including when defendants claim possession was for self-defense.
• Sentencing practice: The decision underscores a recurring distinction: excluding conduct from the Guidelines calculation does not preclude considering that conduct under § 3553(a). Defendants challenging such consideration must confront § 3661 and the broad discretion to evaluate public-safety and deterrence concerns.
• Due process challenges to judicial commentary: The opinion reflects a relatively high threshold for turning general public-safety remarks into a constitutional sentencing error absent evidence the court relied on impermissible traits or biases.

4. Complex Concepts Simplified

• Anders v. California brief: A filing by appellate counsel stating that, after a conscientious review, counsel sees no non-frivolous issues to raise, while still identifying potential issues for the court to review independently.
• “As-applied” Second Amendment challenge: The defendant concedes the statute can be valid in general but argues it is unconstitutional as applied to his specific circumstances (here, allegedly possessing firearms for self-protection).
• Plain error review: A difficult standard used when an issue was not properly raised below; the defendant must show (1) error, (2) that is plain, and (3) that affected substantial rights, and even then the court may decline to correct it unless it seriously affects the fairness/integrity of proceedings.
• “Relevant conduct” vs. § 3553(a) information: “Relevant conduct” is a Guidelines concept affecting the advisory range. Section 3553(a) and 18 U.S.C. § 3661 allow the judge to consider broader information when deciding where within the range (or outside it) to sentence.
• Procedural vs. substantive reasonableness: Procedural concerns how the sentence was reached (correct range, consideration of factors, explanation). Substantive concerns whether the length of the sentence is reasonable given the total circumstances.

5. Conclusion

United States v. Tomonta Simmons is an application-driven affirmance: the Fourth Circuit treated United States v. Hunt as dispositive against Simmons’s Second Amendment as-applied challenge to § 922(g)(1), found no Rule 11 or plain-error defect in the plea, and upheld a within-Guidelines sentence as procedurally and substantively reasonable. The opinion’s most practical takeaway for litigants is its reaffirmation that conduct excluded from Guidelines “relevant conduct” can still permissibly inform the sentencing court’s § 3553(a) analysis—bounded by due process limits on impermissible considerations, but broad in its allowance of public-safety and community-impact reasoning.