Law of the Case Treats Prior Appellate Footnote as Binding Rejection of a Bruen Challenge, Including to § 922(g)(1) Ammunition-Only Prosecutions

I. Introduction

United States v. Swan (Tenth Circuit, Apr. 8, 2026) addresses two recurring post-New York State Rifle & Pistol Ass'n v. Bruen issues in federal criminal practice: (1) whether a defendant may relitigate a Second Amendment challenge to 18 U.S.C. § 922(g)(1) after a remand when an earlier appeal included a footnote rejecting that challenge as foreclosed by circuit precedent; and (2) whether a large upward variance to the statutory maximum is substantively reasonable where the offense conduct is “mere possession” of ammunition, but the defendant’s history includes repeated domestic violence and prior felon-in-possession convictions.

The parties were the United States (appellee) and John Miguel Swan (appellant), who was convicted under 18 U.S.C. § 922(g)(1) after officers executing a felony warrant found a loaded 9mm magazine with 17 live rounds fall from his pocket during arrest.

The key issues on appeal were:

  1. Second Amendment / § 922(g)(1): whether § 922(g)(1) is unconstitutional as applied to an ammunition-only possession theory post-Bruen (and as framed by United States v. Rahimi).
  2. Sentencing: whether the district court’s upward variance to 120 months (the statutory maximum) was substantively unreasonable.

II. Summary of the Opinion

The Tenth Circuit affirmed both the conviction and the 120-month sentence.

  • Second Amendment claim: The court held the challenge was barred by the law-of-the-case doctrine because the prior appeal (United States v. Swan (Swan I)) had already rejected Swan’s argument as foreclosed by Vincent v. Garland (Vincent I), and that rejection was not “mere dicta.”
  • Sentence: The court held the upward variance was substantively reasonable, emphasizing that the district court permissibly relied on Swan’s adjudicated history of domestic violence and repeated felony conduct (including multiple felon-in-possession convictions), and did not create reversible disparity concerns under § 3553(a)(6).

III. Analysis

A. Precedents Cited

1. Second Amendment framework and felon-in-possession precedent

  • District of Columbia v. Heller, 554 U.S. 570 (2008): The opinion recounts Heller’s recognition of an individual right and, crucially, the dicta that the decision should not “cast doubt on longstanding prohibitions on the possession of firearms by felons.” That dicta undergirded the Tenth Circuit’s pre-Bruen approach.
  • United States v. McCane, 573 F.3d 1037 (10th Cir. 2009): The foundational circuit precedent upholding § 922(g)(1) on the strength of Heller’s felon-possession dicta. In Swan, McCane remains relevant because it is part of the chain of binding authority that later panels treat as undisturbed.
  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022): Provides the modern two-step methodology: (i) does the Second Amendment’s text cover the conduct; (ii) if so, is the regulation consistent with historical tradition.
  • United States v. Rahimi, 602 U.S. 680 (2024): Clarifies the historical-tradition inquiry as requiring consistency with “the principles that underpin our regulatory tradition,” reinforcing that analogical reasoning is permitted, rather than a demand for a “historical twin.”
  • Vincent v. Garland (Vincent I), 80 F.4th 1197 (10th Cir. 2023): Central to the disposition. The court in Swan treats Vincent I as foreclosing the argument that Bruen abrogated Tenth Circuit precedent upholding § 922(g)(1), and further reads it as rejecting “felony-by-felony litigation.”
  • Vincent v. Garland (Vincent II), 144 S. Ct. 2708 (2024) (mem.): Notes the Supreme Court vacated and remanded Vincent I after Rahimi, a procedural fact used to frame the circuit’s later reaffirmation.
  • Vincent v. Bondi (Vincent III), 127 F.4th 1263 (10th Cir. 2025): On remand, the circuit readopted Vincent I and reaffirmed § 922(g)(1)’s constitutionality as applied to any convicted felon possessing a firearm, signaling no post-Rahimi retreat.

2. Law-of-the-case and dicta/holding line

  • United States v. Moore, 96 F.4th 1290 (10th Cir. 2024): Provides the core definition of law of the case and the limitation that it does not bind dicta.
  • Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275 (10th Cir. 2010): Used for the proposition that prior decisions govern subsequent stages of the same case.
  • Rocky Mountain Wild v. Dallas, 98 F.4th 1263 (10th Cir. 2024): Supplies the important expansion that law of the case applies to issues decided “explicitly or by necessary implication.”
  • Rimbert v. Eli Lilly & Co., 647 F.3d 1247 (10th Cir. 2011): Lists exceptions allowing departure from law of the case (new evidence, intervening controlling authority, or clear error causing manifest injustice).
  • Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir. 2009): Defines dicta and is also relied upon to reject the argument that an earlier panel’s failure to address a specific argument converts its conclusion into dicta.
  • United Food & Com. Workers Union, Loc. 1564 of N.M. v. Albertson's, Inc., 207 F.3d 1193 (10th Cir. 2000) (quoting Webster v. Fall, 266 U.S. 507 (1925)): Invoked for the idea that issues merely “lurking in the record” are not decided; the court distinguishes Swan’s situation because the issue was raised and addressed.
  • United States v. Lira-Ramirez, 951 F.3d 1258 (10th Cir. 2020): Cited for the rule that panels must follow circuit precedent absent en banc review.
  • Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239 (10th Cir. 2016): Supports the “one bite at the apple” principle—law of the case prevents relitigation of already decided issues.
  • United States v. Rohde, 159 F.3d 1298 (10th Cir. 1998) (citing Witte v. United States, 515 U.S. 389 (1995)): Used to support identifying a prior panel’s statement as a holding where it indicates the case is “governed by” controlling precedent.
  • Harris v. City Cycle Sales, Inc., 112 F.4th 1272 (10th Cir. 2024): Reinforces the “one bite at the apple” framing.

3. Substantive reasonableness and sentencing considerations

  • Gall v. United States, 552 U.S. 38 (2007): Underpins deference to district courts and the principle that major variances require more significant justification.
  • Dean v. United States, 581 U.S. 62 (2017): Quoted via United States v. Guevara-Lopez for sentencing purposes and sufficiency.
  • United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019): Sets abuse-of-discretion review and warns against excessive reliance on a single factor.
  • United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009): Defines abuse of discretion in substantive reasonableness review.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024): Provides articulation of substantive reasonableness and discusses the relevance of comparative sentencing data for disparities.
  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025): Used for disparity analysis and the (non-mandatory) relevance of Sentencing Commission JSIN data.
  • United States v. Ruiz, 125 F.4th 1342 (10th Cir. 2025): Endorses reliance on reliable information about criminal history to support an above-Guidelines sentence.
  • United States v. Vazquez-Garcia¸ 130 F.4th 891 (10th Cir. 2025): Recognizes a limit: an upward variance can be an abuse if imposed solely due to past conduct unrelated to the offense.
  • United States v. Allen, 488 F.3d 1244 (10th Cir. 2007): Key comparator. The court distinguishes Allen, where a drug sentence was effectively inflated to punish unrelated, more serious suspected conduct.
  • United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006): Confirms uncharged conduct may be used at sentencing if proven by a preponderance; Swan emphasizes the district judge’s cautious approach.
  • United States v. Lucero, 130 F.4th 877 (10th Cir. 2025); United States v. Kaspereit, 994 F.3d 1202 (10th Cir. 2021); United States v. Rogers, 371 F.3d 1225 (10th Cir. 2004): Support the proposition that domestic violence history can justify upward variances in felon-in-possession contexts because it elevates risk to others.
  • United States v. Mateo, 471 F.3d 1162 (10th Cir. 2006) and United States v. Proffit, 304 F.3d 1001 (10th Cir. 2002): Support upward variances based on demonstrated recidivism and persistent criminality.
  • United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012) and United States v. Kelley, 359 F.3d 1302 (10th Cir. 2004): Establish that a court need not mechanically discuss each § 3553(a) factor, and that correct Guidelines calculation generally addresses disparity concerns.
  • United States v. McComb, 519 F.3d 1049 (10th Cir. 2007): Frames affirmance where the sentencing outcome falls within “rationally available choices.”

B. Legal Reasoning

1. The “new” operational rule: a prior appellate footnote can bind later stages

The opinion’s most practically significant move is its treatment of Footnote 7 in Swan I as law of the case, not dicta. Even though the earlier panel vacated Swan’s conviction on an unrelated ground (the guilty plea was unknowing and involuntary due to counsel’s alleged misrepresentation about jury composition), the panel had expressly addressed Swan’s request for broader relief—an appellate ruling that § 922(g)(1) was unconstitutional under Bruen—and stated that Vincent v. Garland (Vincent I) foreclosed it.

The court’s reasoning proceeds in three steps:

  1. The issue was presented and identified. Swan “expressly invited” the court in Swan I to decide constitutionality under Bruen, and the earlier panel identified the precise issue: whether his “statute of conviction is unconstitutional.”
  2. The earlier panel rejected the position as foreclosed. By stating that Vincent I “forecloses” Swan’s argument, the earlier panel decided a rule of law for this case.
  3. Necessary implication extends that rejection to ammunition-only possession. Although Vincent speaks in terms of “firearm” possession, the court holds it is necessarily implicit that the same foreclosure applies to Swan’s ammunition-only theory—i.e., the earlier footnote resolved the attempt to distinguish firearms from ammunition for § 922(g)(1) purposes at least for this case’s subsequent stages.

Importantly, the court rejects two attempts to recharacterize the footnote as nonbinding: (i) the argument that “need not consider” converts the whole discussion into dicta (the court says that phrase referred to plea-withdrawal factors, not the separate “broader relief” request); and (ii) the argument that new nuance (ammunition vs. firearm) defeats law-of-the-case (the court relies on Thompson v. Weyerhaeuser Co. to say unaddressed sub-arguments do not retroactively demote a holding to dicta).

The court also signals a functional, litigation-management concern: Swan I said Swan was pressing the Second Amendment argument “solely for preservation purposes,” language the panel reads as incompatible with reopening the same constitutional challenge on remand.

2. Sentencing: domestic violence history as a permissible driver of a major upward variance

The district court varied upward from a 70–87 month Guidelines range to 120 months. The appellate panel affirms by emphasizing (a) reliability constraints applied by the sentencing judge and (b) the connection between Swan’s history and the § 3553(a) purposes, particularly incapacitation and protection of the public.

  • Reliability and “unproven allegations”: The judge largely refused to rely on unadjudicated domestic violence reports, considering primarily conduct that resulted in guilty/no-contest pleas, and treated the one unadjudicated incident (leading to the instant arrest) as sufficiently trustworthy based on corroborated police reports and injuries. This aligns with United States v. Rodriguez-Felix on the permissibility of uncharged conduct when proven by a preponderance.
  • Relationship to the offense and § 3553(a): The panel distinguishes United States v. Allen because Swan was not effectively sentenced for an unrelated, more serious “different crime.” Rather, in a felon-in-possession context, prior violence—especially domestic violence—speaks to dangerousness and risk escalation when weapons/ammunition are involved, consistent with United States v. Lucero, United States v. Kaspereit, and United States v. Rogers.
  • Recidivism and lawlessness: The sentencing judge also relied on Swan’s repeated felonies (including four felon-in-possession convictions) and persistent disregard of legal prohibitions. The panel treats this as classic recidivism-based justification for upward variance, consistent with United States v. Mateo and United States v. Proffit.

3. Disparities: why § 3553(a)(6) did not compel a different result

Swan argued the sentence created unwarranted disparities. The panel’s rejection is largely evidentiary and methodological: Swan offered only names and sentence lengths for eight defendants in the same district, often without even identifying their offenses, and without showing similarity in offense level, criminal history, or conduct. By contrast, in United States v. Guevara-Lopez, disparity arguments were supported by targeted nationwide comparative data.

The panel also leans on United States v. Gantt: correct calculation of the Guidelines range generally reflects consideration of nationwide sentencing practices for similar offenses, and the sentencing court need not expressly march through each factor (per United States v. Kelley) where the reasons for the variance are thoroughly explained.

C. Impact

1. Litigation impact: preservation language and the “footnote as foreclosure” effect

Even though the disposition is an “ORDER AND JUDGMENT” designated as nonprecedential (except for law of the case, res judicata, and collateral estoppel), its reasoning is likely to be influential within the circuit as a persuasive roadmap. Practically, Swan warns litigants that:

  • If a prior appeal addresses a legal issue—even in a footnote—counsel should assume it may be treated as binding law of the case if the issue was raised and the court stated a legal conclusion (especially “foreclosed by precedent”).
  • Attempting to relabel a prior determination as dicta will face an uphill battle where the earlier panel (a) identified the issue, (b) stated the governing precedent, and (c) used language of rejection rather than reservation.

2. Second Amendment impact: ammunition-only theories under § 922(g)(1)

While the court does not newly adjudicate the merits under Bruen, it functionally treats the circuit’s § 922(g)(1) foreclosure line (anchored in United States v. McCane and reaffirmed in Vincent v. Bondi (Vincent III)) as reaching ammunition possession as well, at least when the law-of-the-case doctrine is triggered. This signals that ammunition-only distinctions may not, in practice, open a new lane for relief in the Tenth Circuit absent an intervening controlling authority or en banc action.

3. Sentencing impact: major variances in low “intrinsic” possession cases

Swan reinforces that a sentencing court may treat “mere possession” offenses as less intrinsically egregious, yet still impose the statutory maximum when the defendant’s history indicates extreme risk and the need for incapacitation—so long as the court: (i) grounds the variance in multiple § 3553(a) factors, (ii) uses reliable evidence (especially adjudicated conduct), and (iii) explains why the Guidelines understate the danger and recidivism risk.

IV. Complex Concepts Simplified

  • Law of the case: Once an appellate court decides a legal issue in a case, that decision generally governs later stages of the same case (including after remand), unless an exception applies.
  • Dicta vs. holding: A holding is necessary to the decision of the issue the court resolves; dicta are extra statements not essential to deciding what the court actually decided. Swan treats the earlier footnote as a holding on the constitutional-foreclosure question, not dicta.
  • “Necessary implication”: Even if a court does not spell out every sub-point, a conclusion can bind later stages if it necessarily resolves the sub-point. Here, rejecting Swan’s constitutional attack as foreclosed necessarily rejected the attempted firearm/ammunition distinction for purposes of relitigating the issue.
  • Bruen framework (as clarified by Rahimi): The challenger must show the conduct falls under the Second Amendment’s text; then the government must show the regulation fits within historical tradition (in principle, not by finding an identical historical statute).
  • Substantive reasonableness / upward variance: A sentence is substantively unreasonable only if its length is irrational or arbitrary in light of the § 3553(a) factors. An “upward variance” is a sentence above the Guidelines range; large variances require stronger justification, but are still reviewed deferentially.
  • Unwarranted disparity (§ 3553(a)(6)): The goal is to avoid unjustified differences among similarly situated defendants. Meaningful comparison requires similarity in offense conduct and criminal history, not just being sentenced in the same district.

V. Conclusion

United States v. Swan stands for a pragmatic, procedure-driven rule: when a defendant raises a constitutional challenge on appeal and the appellate court rejects it as foreclosed by precedent—even in a footnote—that rejection can become law of the case and bar renewed litigation of the same challenge after remand, including attempts to repackage it with finer distinctions (such as ammunition-only possession).

On sentencing, the decision underscores that a district court may impose a statutory-maximum sentence for a possession offense where the record supports exceptional concerns about dangerousness, recidivism, and incapacitation—particularly when the court relies mainly on adjudicated conduct and provides a detailed § 3553(a) explanation.