Law-of-the-Case Bars New and Recycled Claims on a Third Appeal After a Limited Resentencing Remand; Bruen Challenges to 18 U.S.C. § 922(g)(1) Remain Foreclosed by Zherka

I. Introduction

United States v. McCoy (2d Cir. Feb. 25, 2026) is a third-trip-to-the-Circuit appeal arising from a 2017 jury trial in the Western District of New York. Defendants-Appellants Earl McCoy and Matthew Nix were convicted of Hobbs Act robbery-related offenses, a narcotics conspiracy, and multiple firearms offenses, including several counts under 18 U.S.C. § 924(c) and felon-in-possession counts under 18 U.S.C. § 922(g)(1).

After earlier appellate proceedings narrowed the case—most notably by vacating certain § 924(c) convictions following intervening Supreme Court authority—the district court dismissed the vacated counts and resentenced both defendants. In this appeal, Defendants attempted to (i) relitigate juror-misconduct issues previously rejected and (ii) introduce new due-process theories not previously raised. McCoy also brought a late as-applied Second Amendment challenge to § 922(g)(1) after New York State Rifle & Pistol Ass'n v. Bruen, and, pro se, challenged aspects of his resentencing.

The central issues were therefore primarily procedural and doctrinal: what claims are available on a third appeal after a limited remand, how waiver operates under the law-of-the-case/mandate framework, and how binding circuit precedent controls post-Bruen challenges to § 922(g)(1).

II. Summary of the Opinion

The Second Circuit affirmed the amended judgments. It held that the law-of-the-case doctrine barred (a) renewed juror-misconduct arguments and (b) newly raised due-process arguments that were available during the first appeal but were not presented then. It rejected McCoy’s as-applied challenge to § 922(g)(1) as foreclosed by Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025). It further rejected McCoy’s pro se sentencing challenges, finding no plain error in concurrent supervised-release terms, no improper use of “acquitted conduct,” no jury-factfinding entitlement for Guidelines enhancements, and no substantive unreasonableness in McCoy’s within-Guidelines 87-year sentence.

III. Analysis

A. Precedents Cited

  • United States v. McCoy, 995 F.3d 32, 37 (2d Cir. 2021) ("McCoy I")
    The first appellate decision: it reversed one § 924(c) count (Count 2) and affirmed the rest, and it rejected the juror-misconduct/new trial arguments. This became the baseline for law-of-the-case.
  • United States v. Taylor, 596 U.S. 845 (2022) and McCoy v. United States, 142 S. Ct. 2863 (2022); Nix v. United States, 142 S. Ct. 2860 (2022)
    The Supreme Court’s remand in light of Taylor opened the door to vacatur of additional § 924(c) convictions tied to attempted Hobbs Act robbery theories.
  • United States v. McCoy, 58 F.4th 72, 75 (2d Cir. 2023) ("McCoy II")
    On remand, the Circuit reversed additional § 924(c) convictions (Counts 4 and 6), affirmed otherwise, and remanded for dismissal and resentencing. The panel’s footnote again declined to revisit juror-misconduct issues, reinforcing law-of-the-case.
  • United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002); United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008); Puricelli v. Argentina, 797 F.3d 213, 218-19 (2d Cir. 2015); United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000); United States v. Plugh, 648 F.3d 118, 123-24 (2d Cir. 2011)
    These cases supply the operative framework: issues decided (expressly or implicitly) are not relitigated; issues ripe but not raised are treated as waived; and departure from law-of-the-case is “sparingly” permitted only for “cogent and compelling reasons” such as an intervening change in controlling law, new evidence, or clear error/manifest injustice. The panel applied this framework to shut down both the recycled juror-misconduct claim and the newly minted due-process claims.
  • McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)
    Cited as the juror-misconduct standard defendants sought to revisit. The panel did not reanalyze McDonough, instead relying on law-of-the-case to refuse a third pass at the same dispute.
  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) and Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025), cert. denied, No. 25-269, 2026 WL 135708 (U.S. Jan. 20, 2026)
    McCoy invoked Bruen to challenge § 922(g)(1) as applied to him, but the panel treated Zherka as controlling circuit authority holding § 922(g)(1) constitutional as applied to felons.
  • United States v. Gonzalez, No. 24-1539, 2025 WL 2327335, at *1 (2d Cir. Aug. 13, 2025); United States v. Rodriguez, No. 25-181, 2025 WL 3716677, at *1 (2d Cir. Dec. 23, 2025)
    Cited to show the Circuit’s consistent post-Zherka practice of rejecting similar challenges—underscoring that a panel will follow binding precedent absent en banc or Supreme Court change.
  • United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007)
    Provides the plain-error standard for unpreserved sentencing objections; used to dispose of McCoy’s pro se sentencing claims.
  • United States v. Davis, 588 U.S. 445, 469 (2019)
    Used to support the “sentencing package” concept: when a § 924(c) conviction is invalidated, appellate courts routinely vacate the entire sentence to allow district courts to restructure remaining sentences, including upward adjustments where appropriate.
  • United States v. Cain, 837 F. App'x 853, 855-56 (2d Cir. 2021); United States v. Pizzuti, 843 F. App'x 383, 384 (2d Cir. 2021)
    These authorities reinforce that, after § 924(c) vacatur, enhancements (including firearm-related adjustments) may newly apply to underlying offenses because the Guidelines’ anti-double-counting limitation tied to § 924(c) sentencing no longer blocks them.
  • United States v. Holguin, 436 F.3d 111, 119 (2d Cir. 2006)
    Cited for the rule that, under the advisory Guidelines regime, sentencing judges may find enhancement facts by a preponderance of the evidence (not beyond a reasonable doubt and not necessarily by a jury).
  • United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020); United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011)
    These cases supply the substantive-reasonableness lens: reversal is reserved for sentences outside the “range of permissible decisions,” and within-Guidelines sentences are usually reasonable.

B. Legal Reasoning

  1. Law-of-the-case/mandate rule as a strict gatekeeper on serial appeals.
    The panel treated this third appeal as bounded by what was decided before and what could have been raised before. The opinion reaffirms two distinct bars:
    • Relitigation bar: the juror-misconduct issue (including arguments about McDonough Power Equip., Inc. v. Greenwood) had already been rejected in McCoy I and the court had already declined reconsideration in McCoy II.
    • Waiver-by-omission bar: the new due-process theories (FBI background checks on jurors; cumulative trial error) were “ripe” during the initial appeal but “foregone,” so they were barred under United States v. Frias.
    The court emphasized that departures from law-of-the-case require “cogent and compelling reasons” (intervening controlling law, new evidence, or clear error/manifest injustice), and found none.
  2. Second Amendment as-applied challenges to § 922(g)(1) are controlled by binding circuit precedent.
    Even “assuming” the court could reach McCoy’s late-raised constitutional claim, it held the argument foreclosed by Zherka v. Bondi, which upheld § 922(g)(1) as constitutional as applied to felons after Bruen. The panel also relied on subsequent summary dispositions (United States v. Gonzalez; United States v. Rodriguez) to show consistent circuit application.
  3. Resentencing after § 924(c) vacatur: concurrency of supervised release; recalculating the Guidelines without the § 924(c) “shadow.”
    Reviewing for plain error under United States v. Villafuerte, the panel rejected:
    • Supervised release concurrency challenge: 18 U.S.C. § 3624(e) requires supervised release terms to run concurrently. McCoy’s reliance on 18 U.S.C. § 924(c)(1)(D)(ii) was misplaced because that provision addresses only concurrency of imprisonment, not supervised release.
    • “Acquitted conduct” label: vacatur of § 924(c) counts (Counts 2, 4, 6) is not an acquittal; and under United States v. Davis, resentencing may restructure the overall sentencing package. The court further held it was proper to apply firearm-related enhancements to the underlying robbery-related counts after the § 924(c) convictions were dismissed, consistent with United States v. Cain and United States v. Pizzuti.
    • Jury factfinding for Guidelines enhancements: under United States v. Holguin, the judge may find relevant facts by a preponderance of the evidence for advisory Guidelines purposes.
  4. Substantive reasonableness is highly deferential—especially within-Guidelines.
    Applying United States v. Smith and United States v. Perez-Frias, the panel upheld McCoy’s 87-year within-Guidelines sentence, pointing to the district court’s emphasis on criminal history, seriousness, violence, disregard for law, and public protection.

C. Impact

  • Reinforces finality on serial appeals: The decision underscores that a resentencing remand—especially one prompted by discrete vacatur of specific counts—does not reopen the trial record for new constitutional theories or previously rejected claims absent a recognized exception under law-of-the-case.
  • Stabilizes post-§ 924(c) vacatur resentencings: The opinion confirms that district courts may “rebuild” the Guidelines calculation for underlying offenses once § 924(c) counts are dismissed, including applying firearm enhancements that were previously barred to avoid double counting.
  • Confirms Second Circuit’s post-Bruen posture on felon-in-possession: By treating Zherka v. Bondi as dispositive, the decision signals that § 922(g)(1) challenges in this circuit will ordinarily fail unless and until the Supreme Court or the Second Circuit en banc changes the governing rule.

IV. Complex Concepts Simplified

Summary order
A nonprecedential disposition. It resolves the parties’ case but does not create binding law for future cases (though it may be cited under specified rules).
Law-of-the-case doctrine / mandate rule
Once an appellate court decides an issue, the same parties generally cannot relitigate it in later stages of the same case. Likewise, issues that could have been raised earlier but were not are usually treated as waived on later appeals.
“Ripe for review” and waiver
If an argument was available during the first appeal but the appellant chose not to raise it, later attempts are typically blocked—promoting finality and efficient litigation.
As-applied constitutional challenge
A claim that a statute may be valid in general but unconstitutional when applied to a particular person’s circumstances.
Plain error review
A demanding appellate standard applied when the defendant failed to object in the district court. Relief requires a clear legal error that affected substantial rights and seriously affects the fairness or integrity of judicial proceedings.
Sentencing package doctrine
When part of a multi-count sentence is undone (e.g., a § 924(c) count is vacated), the district court may reconsider the whole sentencing structure on remand to arrive at an appropriate overall sentence.
Vacated count vs. acquittal
An acquittal means the jury found “not guilty.” A vacatur means a conviction is set aside (often for legal reasons), but it does not convert the jury’s prior guilty verdict into a not-guilty verdict.
Guidelines enhancements and “preponderance of the evidence”
For advisory Sentencing Guidelines, judges may find facts supporting enhancements if they are more likely than not true, rather than requiring jury findings beyond a reasonable doubt.

V. Conclusion

United States v. McCoy affirms a resentencing outcome while delivering a firm procedural message: a third appeal after a limited resentencing remand is not an invitation to reargue settled juror-misconduct issues or to debut due-process theories that were available years earlier. Substantively, the panel confirms that, in the Second Circuit, post-Bruen as-applied challenges to 18 U.S.C. § 922(g)(1) remain controlled by Zherka v. Bondi, and it reiterates established resentencing principles following § 924(c) vacatur—especially the permissibility of recalculating Guidelines enhancements for underlying offenses and the deference owed to within-Guidelines sentences on substantive-reasonableness review.