Licensed Firearms Dealers Are Not Federal Officials for Entrapment-by-Estoppel in the Fifth Circuit:
Commentary on United States v. Ahmadou

I. Introduction

In United States v. Ahmadou, No. 24‑20045 (5th Cir. Nov. 25, 2025), the Fifth Circuit addressed three interlocking issues at the intersection of firearms regulation, due process, and sentencing in terrorism-adjacent cases:

Whether a nonimmigrant-visa holder prosecuted under 18 U.S.C. § 922(g)(5)(B) could invoke the defense of entrapment by estoppel based on a gun range’s liability waiver that partially summarized the federal “prohibited person” categories and omitted his own.
Whether a defendant who goes to trial asserting entrapment by estoppel is nonetheless eligible for a Guidelines reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
Whether an above‑Guidelines sentence, justified by the defendant’s extensive consumption of ISIS propaganda and association with a known terrorist, was procedurally and substantively reasonable—particularly in light of First Amendment concerns and ambiguity between “departure” and “variance.”

The court, in a majority opinion by Judge Jerry E. Smith (joined by Chief Judge Richman), affirmed the conviction and sentence in all respects. Judge Dennis concurred in part and dissented in part, agreeing on the first two issues but finding reversible procedural error in the sentencing.

The decision is most significant for one new, clear precedent: the Fifth Circuit formally holds that federally licensed firearms dealers are not “federal officials” or “agents” for purposes of the entrapment‑by‑estoppel defense. In doing so, it aligns with the Eighth, Tenth, Seventh, and Eleventh Circuits, and expressly rejects the Ninth Circuit’s contrary approach in United States v. Tallmadge.

II. Factual and Procedural Background

A. The defendant and the firearm conduct

Moctar Ahmadou entered the United States from Niger in 2016 under a nonimmigrant F‑1 student visa to attend North American University in Texas. As a nonimmigrant visa holder, he fell under the federal prohibition on firearm possession in 18 U.S.C. § 922(g)(5)(B).

In May 2020, an Islamic extremist, Adam Alsahli, carried out an attack at Naval Air Station Corpus Christi. An investigation of Alsahli’s phone showed contact with Ahmadou, prompting an FBI investigation. The FBI used a confidential human source and later deployed undercover agents to a commercial gun range, the Texas Gun Club (TGC), that Ahmadou frequented.

In May 2021, Ahmadou:

Visited TGC, rented and fired guns, and took shooting courses.
Signed TGC’s waiver-of-liability form, which purported to define “Prohibited Person” “as defined by The Gun Control Act of 1968 and codified at 18 U.S.C. § 922(g).”
The form listed several categories (felons, fugitives, drug users, those adjudicated mentally defective, “illegal alien[s],” dishonorably discharged veterans, those who renounced citizenship, domestic-violence misdemeanants, etc.) but omitted § 922(g)(5)(B), the specific prohibition on aliens admitted under nonimmigrant visas.
Checked a box swearing that he was in compliance with federal and Texas law and understood the definition of “Prohibited Person.”

Undercover federal agents were present at the range but, according to the manager, told him only to conduct “business as usual” and did not direct his conduct. After arrest, in a custodial interview, Ahmadou admitted that his range visits were preparation to commit jihad overseas “if there was a need.” A search of his electronic devices revealed extensive ISIS propaganda, including at least 100 beheading videos.

B. District court proceedings

A federal grand jury indicted him on several counts, including possession of a firearm as an alien admitted under a nonimmigrant visa in violation of § 922(g)(5)(B). One ammunition count was later dismissed, but the key firearm counts remained.

Before trial, Ahmadou, at times pro se and at times through counsel, sought to assert entrapment by estoppel, arguing he had been affirmatively misled into believing he could lawfully possess firearms because TGC’s form omitted his specific prohibited status. The government moved in limine to bar that defense and any related evidence, and to deny his pro se motion to dismiss as unauthorized.

The district court:

Initially granted the government’s motion in limine, but remained open to revisiting the issue as the record developed.
After voir dire, again considered the defense and denied it, noting the absence of Fifth Circuit precedent on whether a firearms dealer could be a federal official for entrapment-by-estoppel purposes, while reserving the right to reconsider.
At the close of the first trial day, invited Ahmadou to reconsider whether to proceed to trial given the court’s rulings on the defense.
On the second day, after further argument from Ahmadou, confirmed he wished to proceed and later refused his requested jury instruction on entrapment by estoppel.

The jury convicted him on all remaining counts.

C. Sentencing: terrorism enhancement, acceptance of responsibility, and upward variance

The Presentence Report (PSR):

Initially omitted the terrorism enhancement but, after the government objected, added a 12‑level terrorism enhancement under U.S.S.G. § 3A1.4, based on his ISIS propaganda consumption and contacts.
Did not recommend a reduction for acceptance of responsibility under § 3E1.1.

At sentencing:

The district court declined to apply the terrorism enhancement, finding the government had not shown that the firearm offense “involved, or was intended to promote, a federal crime of terrorism” as defined by § 3A1.4.
The court also denied an acceptance-of-responsibility reduction, emphasizing that Ahmadou had gone to trial, contested his blameworthiness, and had been “vehement” in denying responsibility up to and through trial.
With total offense level 22 and criminal history category I, the advisory range was 41–51 months.
The court imposed an above-Guidelines sentence of 78 months on the main counts, plus supervised release. In its oral remarks, it repeatedly called this an “upward departure,” grounded in his repeated viewing of ISIS videos, association with Alsahli, and violation of the trust inherent in his student visa.
In its later written Statement of Reasons, the court characterized the same increase as an upward variance under 18 U.S.C. § 3553(a), citing § 3553(a)(1) and the same terrorism-related conduct.

D. Issues on appeal

On appeal, Ahmadou raised three principal issues:

The denial of his right to present and obtain a jury instruction on the defense of entrapment by estoppel.
The denial of a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
The procedural and substantive reasonableness of his above-Guidelines sentence, including the use of terrorism-related materials and associations and the alleged reliance on protected speech, religion, and association.

III. Summary of the Fifth Circuit’s Holdings

The Fifth Circuit affirmed across the board. The main holdings are:

Entrapment by estoppel — firearms dealers:
- Entrapment by estoppel is a narrow due‑process‑based defense that requires an affirmative misrepresentation of law by a federal official (or authorized agent) empowered to give such advice, and reasonable reliance by the defendant.
- The Texas Gun Club’s omission of § 922(g)(5)(B) on its privately‑created waiver form was, at most, a misleading omission, not an “affirmative misrepresentation.”
- Most significantly, the court joins the majority of circuits in holding that a federally licensed firearms dealer is not a “federal official” or “government agent” for purposes of the entrapment‑by‑estoppel defense.
- The presence of undercover federal agents at the range and their “business as usual” comment did not transform TGC into a de facto government agent.
- Accordingly, there was no evidentiary basis for the entrapment‑by‑estoppel defense; the court did not abuse its discretion in excluding evidence and refusing a jury instruction.
Acceptance of responsibility:
- Because § 3E1.1 reductions are reviewed with “even more deference” than clear error, the court will affirm unless the denial is “without foundation.”
- Although a defendant who goes to trial can, in rare cases, still receive the reduction if he litigates purely legal issues unrelated to “factual guilt,” entrapment by estoppel, as asserted here, does challenge blameworthiness, not just a legal point.
- By blaming the government (via alleged misrepresentations) for his conduct, Ahmadou was contesting “guilt” in the broader sense of responsibility or blameworthiness; thus, denial of the reduction had a sufficient foundation.
Sentence reasonableness; terrorism context; First Amendment:
- Despite the district court’s oral references to an “upward departure,” the Fifth Circuit treated the 78‑month sentence as an upward variance under § 3553(a), not a Guidelines departure under § 3A1.4, Application Note 4.
- The court found no significant procedural error: the record, including the Statement of Reasons, showed the court applied the correct Guidelines range, declined the terrorism enhancement, and then varied upward based on § 3553(a) factors.
- Any ambiguity between “departure” and “variance” was, in the majority’s view, harmless, because the district court clearly would have imposed the same sentence as a variance based on the same reasoning.
- The sentence was substantively reasonable: the district court could properly consider his repeated viewing of ISIS beheading videos and his association with a known terrorist as relevant context to the firearm offense and to his “history and characteristics” under § 3553(a)(1).
- The use of such evidence did not violate the First Amendment under Dawson v. Delaware; protected beliefs, speech, and associations may be considered at sentencing if sufficiently relevant to permissible sentencing purposes, such as danger, deterrence, or context for the offense.

Judge Dennis concurred with the entrapment‑by‑estoppel and acceptance‑of‑responsibility holdings, but dissented on sentencing. He would vacate and remand because:

The record was irreconcilably ambiguous as to whether the court imposed an Application Note 4 departure or a § 3553(a) variance.
Under either theory, the explanation was inadequate and thus procedurally unreasonable.
The government had not met the strict “beyond a reasonable doubt” harmless‑error standard for sentencing procedural errors.

IV. Entrapment by Estoppel and the Status of Licensed Firearms Dealers

A. The defense of entrapment by estoppel

Entrapment by estoppel is a due process doctrine grounded in the principle that it is fundamentally unfair for the government to:

Affirmatively assure a person that certain conduct is lawful, and then
Prosecute that person for engaging in the very conduct the government approved.

The Supreme Court articulated the defense in:

Raley v. Ohio, 360 U.S. 423 (1959): Defendants were told by a legislative commission that they could rely on the privilege against self-incrimination, then were prosecuted for refusing to testify. The Court condemned this as an “indefensible sort of entrapment by the State.”
Cox v. Louisiana, 379 U.S. 559 (1965): Civil rights demonstrators were told by senior police officials, in the presence of the mayor and sheriff, that they could demonstrate at a particular location, then were prosecuted for doing so.

The Fifth Circuit, following those decisions, has defined the defense as applicable where:

“a government official or agent actively assures a defendant that certain conduct is legal and the defendant reasonably relies on that advice and continues or initiates the conduct.” — United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996).

Critically, Fifth Circuit law—reaffirmed in Ahmadou—imposes strict requirements:

There must be an affirmative misrepresentation (not mere silence or omission).
The representation must come from a federal official or an authorized federal agent empowered to interpret or enforce the law in question.
The defendant’s reliance must be reasonable, and the defense is a “narrow exception” to the rule that ignorance of the law is no excuse.

B. Omission vs. affirmative misrepresentation: the TGC waiver

The TGC waiver form:

Purported to define “Prohibited Person” as used in the Gun Control Act and § 922(g).
Listed several prohibited categories, but omitted § 922(g)(5)(B) (nonimmigrant‑visa holders).
Required the signer to attest they were not a prohibited person and were in compliance with law.

Ahmadou argued this form was a selective disclosure that amounted to an affirmative misrepresentation: by presenting a specific list under the heading “Prohibited Person as defined by the Gun Control Act,” TGC effectively represented that the list was exhaustive—and that persons not on the list (like F‑1 visa holders) were lawful possessors.

The majority acknowledged that the form was “arguably misleading” and that it “implies that the list of § 922(g) offenses is exhaustive,” but held this was not enough. Under prior Fifth Circuit precedents:

United States v. Trevino‑Martinez, 86 F.3d 65 (5th Cir. 1996), and
United States v. Cornejo‑Flores, 254 F.3d 1082 (5th Cir. 2001) (unpublished)

the court has drawn a firm line between:

“Active misleading” by inducing reliance on an erroneous legal statement, and
mere failure to inform or incomplete advice, which does not trigger the defense.

In Ahmadou, the court characterized TGC’s conduct as an incomplete and privately drafted form that:

Did not explicitly say, for example, “these are the only disqualifying categories,” and
Did not affirmatively state that nonimmigrant visa holders may possess firearms.

Thus, while the court recognized the form’s potential to mislead, it emphasized that under Fifth Circuit doctrine the defense requires more: an express or clear affirmative statement of legality, not merely a list that happens to be incomplete.

This reinforces the Fifth Circuit’s already strict reading of entrapment by estoppel: misleading omissions, even when plausible and printed on a legal-looking form, are not enough.

C. Are federally licensed firearms dealers “federal officials”? The circuit split and the Fifth Circuit’s choice

The more consequential part of the opinion concerns who qualifies as a “government official or agent.” Before Ahmadou, the Fifth Circuit had expressly left open whether a federally licensed firearms dealer might qualify. See United States v. Uresti‑Careaga, 281 F. App’x 404, 405 (5th Cir. 2008) (unpublished).

Other circuits had split:

Ninth Circuit (minority view) — United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987):
- Held that a federally licensed gun dealer could be treated as a federal agent “in connection with the gathering and dispensing of information on the purchase of firearms.”
- Reasoned that Congress grants licensees the exclusive right to sell firearms and imposes duties to screen buyers and convey legal restrictions, thereby deputizing them in this limited domain.
- Allowed a buyer to rely on the dealer’s erroneous assurance of eligibility as a basis for entrapment by estoppel.
- Judge Kozinski’s dissent warned that this gave “individuals with only the most tenuous relationship to the government” power to bind the federal government on criminal law interpretations, with “explosive potential.”
Majority of circuits (Eighth, Tenth, Seventh, Eleventh):
- United States v. Austin, 915 F.2d 363 (8th Cir. 1990): Emphasized that federally licensed dealers are “private individuals” whose license and statutory duties do not transform them into government officials for entrapment-by-estoppel purposes.
- United States v. Billue, 994 F.2d 1562 (11th Cir. 1993): A “federal license to sell firearms does not transform private licensees into government officials.”
- United States v. Howell, 37 F.3d 1197 (7th Cir. 1994): Same conclusion; a gun dealer “is a private individual; his license to sell firearms does not transform him into a government official.”
- United States v. Hardridge, 379 F.3d 1188 (10th Cir. 2004): Distinguished a licensee’s duty to comply with the law from an “official responsibility to interpret the law, to see that the law is being properly administered, or to enforce the law.” Stressed that letting private licensees estop the government would effectively give them “a veto over enforcement of the criminal law.”

The Fifth Circuit in Ahmadou explicitly sided with the majority rule and against the Ninth Circuit:

“We adopt the lopsided majority rule, that a licensed firearms dealer is a private individual rather than a government official for purposes of the entrapment-by-estoppel defense. The Ninth Circuit is an outlier that stretches the holdings of Cox and Raley too far.”

The court noted that:

Licensure and regulatory obligations do not equate to acting “under color of” federal law in this context, by analogy to equal protection cases and cases like United States v. Orleans, 425 U.S. 807 (1976) (federal regulation of contractors does not convert their acts into federal acts).
Because entrapment by estoppel is a “narrow exception,” the court “decline[d]” to expand Supreme Court precedents to cover private licensees.

This is the central doctrinal contribution of Ahmadou: within the Fifth Circuit, as a matter of binding law:

Federally licensed firearms dealers are not “federal officials” or “agents” for entrapment‑by‑estoppel purposes.
Consequently, their assurances, forms, or omissions—however misleading—cannot trigger the defense unless they are simply relaying an official federal representation (such as a government-created form) and even then, the source of the misrepresentation would be the government, not the dealer.

D. De facto agency: undercover surveillance and “business as usual”

Recognizing the doctrinal difficulty under existing caselaw, Ahmadou also argued that, even if firearms dealers are not per se federal officials, TGC functioned as a de facto federal agent in his case because:

Undercover federal agents were physically present at TGC, monitoring him.
Agents told the manager to conduct “business as usual,” knowing that this included use of the allegedly misleading waiver form.

The Fifth Circuit rejected this theory:

There was no evidence that agents knew the contents of the TGC form, much less adopted or approved it.
The “business as usual” instruction, placed in context of the manager’s testimony, showed non‑interference, not operational control: the agents were expressly not directing him what to do.
The form was TGC’s standard document for all range users; its use in this case did not result from or depend on the government’s presence.

Thus, TGC remained neither a federal official nor a government agent, and its conduct could not be imputed to the federal government for entrapment‑by‑estoppel purposes.

E. Doctrinal implications: narrowing entrapment by estoppel in firearms and immigration contexts

Taken together, the opinion cements several strict conditions for entrapment by estoppel in the Fifth Circuit:

Affirmative misrepresentation required: Omission, incomplete lists, silence, or even selective disclosure will not suffice; there must be an explicit or clear assurance that the conduct in question is lawful.
Source limitation: Only federal officials, or agents clearly authorized to interpret or enforce the relevant federal law, can generate the kind of reliance that triggers the defense.
Private licensees excluded: Federally regulated or licensed private actors (including FFLs) remain private for these purposes, even if heavily regulated and entrusted with significant compliance duties.
Undercover presence insufficient: Mere coordination with or observation by government agents—absent control, instruction, or adoption of the misleading statements—does not transform a private actor into a government agent.

For defendants, especially noncitizens charged under § 922(g)(5)(B), this ruling sharply constrains the availability of an estoppel defense based on the practices of gun dealers and ranges. For firearms dealers, it reduces the risk that their mistakes will bind the federal government, but does not absolve them of separate regulatory or civil liability.

F. Practical consequences

Key practical takeaways:

Nonimmigrant visa holders can no longer plausibly claim entrapment by estoppel in the Fifth Circuit based on:
- Inaccurate or incomplete FFL forms; or
- Dealer assurances about eligibility, unless those assurances are themselves explicit relays of erroneous federal guidance.
Defense counsel must look upstream to federal sources of misinformation (e.g., outdated ATF forms, official communications) rather than to licensees. The Ninth Circuit’s United States v. Batterjee scenario—where a nonimmigrant visa holder relied on an outdated ATF Form 4473—is distinguishable in the Fifth Circuit because:
- There the misrepresentation came from ATF’s own form (a federal document), not from the dealer’s homemade paperwork.
- Ahmadou underscores that when the form is privately created, governmental estoppel is far less tenable.
Prosecutors can rely on this precedent to defeat entrapment-by-estoppel defenses premised on FFL conduct, even in sting‑like operations with undercover agents present.

V. Acceptance of Responsibility and Assertion of Entrapment by Estoppel

A. The § 3E1.1 framework

U.S.S.G. § 3E1.1 allows a two- or three-level reduction for a defendant who “clearly demonstrates acceptance of responsibility for his offense.” Application Note 2 clarifies:

Ordinarily, defendants who go to trial, deny factual guilt, and only afterward admit guilt are not entitled to the reduction.
In “rare situations,” a defendant can still receive the adjustment despite going to trial—e.g., where he admits the conduct but goes to trial solely to preserve purely legal issues (constitutional challenges, statutory coverage questions) “that do not relate to factual guilt.”
In such cases, the determination turns “primarily” on pre‑trial statements and conduct.

The standard of review is extremely deferential: the appellate court will uphold the denial unless it is “without foundation” because the sentencing judge is uniquely positioned to assess sincerity and remorse. United States v. Kidd, 127 F.4th 982, 986–87 (5th Cir. 2025).

B. The district court’s reasoning

At sentencing, the government opposed the reduction because:

It was forced to go to trial and present evidence on all elements.
Any offer to stipulate facts was rejected, and the defense “did not accept responsibility as to each and every element.”

The district court:

Recalled that “up until [trial] you were vehement that you were not responsible for this.”
Acknowledged a post‑conviction letter in which Ahmadou expressed remorse, but concluded that in light of his trial posture he had not “clearly demonstrated” acceptance of responsibility.

C. Why entrapment by estoppel conflicted with acceptance of responsibility

On appeal, Ahmadou tried to fit within the “rare situation” exception. He argued:

He did not contest the facts of his offense (i.e., that he possessed firearms while a nonimmigrant).
He went to trial only to assert a legal defense—entrapment by estoppel—that did not dispute factual guilt, but only the legal consequences of those facts.

The Fifth Circuit rejected that characterization, drawing on United States v. Sam, 467 F.3d 857 (5th Cir. 2006), which interprets “guilt” in the Guideline commentary broadly:

“‘Guilty’ is defined as ‘justly liable to or deserving of a penalty,’ and it is synonymous with ‘blameworthy.’”

Under this broader understanding:

Even if Ahmadou admitted the elements of the offense, his entrapment‑by‑estoppel defense squarely denied his blameworthiness, asserting the government was at fault for misleading him.
The defense is not purely legal in the Guidelines sense; its essence is that it would be unfair to hold him responsible because he reasonably relied on government assurances.
Thus, by advancing this defense, he was disputing “guilt” (in the moral/legal responsibility sense), not merely litigating an abstract legal issue unrelated to culpability.

Given the deference owed and his trial conduct, the court held the denial of the § 3E1.1 reduction had an adequate foundation.

D. Strategic implications for defendants

The decision implicitly warns defendants in the Fifth Circuit:

Asserting entrapment by estoppel at trial is likely to be treated as a challenge to responsibility, not a purely legal issue. This will weigh heavily against a later claim for acceptance of responsibility.
To remain eligible for the “rare situation” exception, a defendant would need:
- To fully and consistently admit not only the facts but also his blameworthiness before trial; and
- To limit trial to issues such as:
  - Whether the statute constitutionally applies at all, or
  - Whether his conduct falls within the statute’s scope as a matter of law, without shifting moral blame to the government.

VI. Sentencing, Terrorism-Related Conduct, and Extremist Speech

A. Terrorism enhancement vs. § 3553(a) variance

The Guidelines § 3A1.4 terrorism enhancement:

Imposes a 12‑level increase and criminal history category VI if the offense “involved, or was intended to promote, a federal crime of terrorism” as defined in 18 U.S.C. § 2332b(g)(5).
Application Note 4 authorizes departures in two specific scenarios where terrorism is present but does not neatly meet the enhancement’s cross‑reference criteria, for example:
- Where the offense was calculated to influence government conduct but promoted a non‑listed offense; or
- Where the conduct involved terrorism against civilians rather than government targets.

In Ahmadou:

The PSR recommended the full § 3A1.4 enhancement, and suggested that, if the enhancement did not apply, Application Note 4 might justify an upward departure based on terrorism‑related factors.
The district court ultimately refused the enhancement, finding the government had not shown that his firearm possession was intended to promote a federal crime of terrorism or that he had joined a terrorist group.

However, the court viewed his behavior—his relationship with a known terrorist, his stated intent to commit jihad if needed, and his obsessive viewing of ISIS beheading videos—as highly aggravating for sentencing purposes.

B. Departure vs. variance: the majority’s reading

At the sentencing hearing, the district court:

Discussed with the government the options of:
- Applying the terrorism enhancement and then varying downward; or
- Sustaining the enhancement objection and “upwardly depart[ing]” based on the same terrorism‑related evidence.
Sustained the objection and said it found an “upward departure appropriate,” expressly referencing the same terrorism‑related facts (videos, association with Alsahli, concern over jihad).
Used the terms “upward departure” multiple times in the oral pronouncement.

Later, the written Statement of Reasons:

Characterized the sentence as an upward variance under § 3553(a), not a Guidelines departure.
Cited § 3553(a)(1) (“nature and circumstances of the offense and the history and characteristics of the defendant”) and recited the same terrorism‑related facts.

The majority resolved this tension by:

Classifying the sentence as a non‑Guidelines § 3553(a) variance—one of the three recognized types of reasonable sentences under United States v. Lavalais, 960 F.3d 180 (5th Cir. 2020).
Emphasizing that the court:
- Did not say it was applying Application Note 4;
- Made no findings that would satisfy Note 4 (e.g., did not find that the offense was calculated to influence government conduct or involved civilian targets in the relevant sense); and
- Explicitly stated near the end of sentencing that “there was no punishment included whatsoever for terrorism” in its pronouncement.
Reliance on the written Statement of Reasons, which:
- Recapitulated the oral reasons; and
- Formally denominated the increase as a variance, thereby resolving ambiguity in favor of a § 3553(a) rationale.

On this reading, any misuse of the term “departure” in the oral pronouncement was treated as a loose label rather than a legal misstep, and no significant procedural error occurred. Alternatively, the majority held that even if there were error, it would be harmless because the record establishes the district court would have imposed the same sentence as a variance based on § 3553(a).

C. First Amendment and terrorism‑related evidence at sentencing

Ahmadou argued that the upward variance improperly relied on:

His protected speech (viewing ISIS propaganda);
His religion (Islam and his claimed religious curiosity regarding jihad); and
His associations (communications with Alsahli).

The Supreme Court in Dawson v. Delaware, 503 U.S. 159 (1992), held that:

The First Amendment does not categorically bar the use of beliefs or associations at sentencing.
But such evidence cannot be used solely to penalize abstract beliefs or associations that are irrelevant to the crime or sentencing factors.
Where beliefs or associations are relevant to a legitimate sentencing concern (e.g., future dangerousness, motive), they may be considered.

The Fifth Circuit has applied Dawson in cases like:

Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996);
Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997);
United States v. Simkanin, 420 F.3d 397 (5th Cir. 2005).

In Ahmadou, the majority held:

The district court did not punish him “for his religion” as such; rather, it rejected his explanation that he watched the videos out of benign “religious curiosity.”
His repeated viewing of extremely violent jihadist content, far beyond what would be needed to “understand” his faith, reasonably undermined the sincerity of that claim and raised legitimate concerns about:
- His fascination with violent extremism;
- The potential risk he posed when combined with firearm possession; and
- The context in which he violated federal firearm laws.
His association with a known terrorist and stated interest in jihad were directly relevant to the nature and circumstances of the offense and his “history and characteristics” under § 3553(a)(1), even though the government had not proved that the offense was itself “intended to promote” terrorism for § 3A1.4 purposes.

In short, the court held that the sentencing judge permissibly used this evidence as context and risk indicator, not simply to punish political or religious views.

D. Substantive reasonableness

On substantive reasonableness, the Fifth Circuit:

Recognized the 78‑month sentence as an upward variance from a 41–51 month range, but within the district court’s discretion under § 3553(a).
Emphasized that:
- He was in the country on a student visa that clearly forbade firearm possession; and
- He knowingly violated this condition while engaging in intensive consumption of violent extremist materials and maintaining ties to a domestic terrorist.
Found that the district court’s explanation—focused on the gravity of his conduct, the violation of U.S. trust, and the combined context of weapons and jihadist obsession—justified the degree of the upward variance.

Combining the procedural and substantive holdings, the majority concluded that using terrorism‑adjacent conduct and extremist speech as aggravating factors for a firearm offense is permissible when properly framed under § 3553(a) and not as a backdoor terrorism enhancement.

VII. The Concurrence and Dissent: A Stricter View of Sentencing Procedure

Judge Dennis’s separate opinion agrees with the majority on entrapment by estoppel and acceptance of responsibility, but sharply diverges on sentencing.

A. Ambiguity between departure and variance

Judge Dennis emphasizes the confusion between:

Repeated oral references to an “upward departure” tied to the same terrorism‑related evidence the PSR and government cited under § 3A1.4 and Application Note 4; and
A Statement of Reasons later recasting the same 78‑month sentence as a § 3553(a) variance.

He argues:

Under Fifth Circuit precedent, when there is an ambiguity between oral pronouncement and written judgment, courts must examine the entire record to discern intent, and ambiguous sentences should be vacated and remanded for clarification (Garza, Patrick Petroleum).
The real “context”—the PSR’s Note 4 recommendation, the government’s repeated reliance on Note 4, and the district court’s colloquy (“I could sustain the objection and upwardly depart… based upon the recommended sentencing guideline”)—shows that the court intended to issue a Guidelines departure under Application Note 4.
The later use of “variance” in the Statement of Reasons is not enough to erase this ambiguity or to confirm that the court consciously rejected Note 4.

B. Procedural error under either characterization

According to the dissent:

If the sentence was an Application Note 4 departure:
- The district court failed to make the specific findings Note 4 requires (e.g., that the offense was calculated to influence or retaliate against government conduct, or that it involved terrorism against civilians in a way contemplated by the guideline).
- This constitutes a classic Guidelines departure error.
If the sentence was a § 3553(a) variance:
- The district court failed to adequately articulate how the terrorism‑related facts linked to the § 3553(a) factors, beyond expressing that it was “troubled” and found the conduct morally reprehensible.
- The use of speech and associations must be tied to permissible purposes like future dangerousness or deterrence; the court did not clearly draw this connection or explain why these facts justified the particular degree of variance.

On either theory, he finds the explanation insufficient to permit meaningful appellate review, rendering the sentence procedurally unreasonable.

C. Harmless error and the burden on the government

Judge Dennis stresses that sentencing errors are subject to a strict harmless‑error standard:

The government must show beyond a reasonable doubt that the error “did not contribute to the sentence received.”
Given the ambiguity and lack of a clear, alternative, error‑free rationale, the government could not meet this burden.

He analogizes to United States v. Ibarra‑Luna, 628 F.3d 712 (5th Cir. 2010), where the court could not be sure the same sentence would have been imposed absent the error, despite suspecting it might.

On this basis, he would vacate the sentence and remand for a new, clearly grounded sentencing proceeding, while leaving the conviction intact.

VIII. Clarifying Key Legal Concepts

A. 18 U.S.C. § 922(g)(5)(B) – Firearms and nonimmigrant visa holders

Section 922(g) prohibits certain categories of persons from possessing firearms. Subsection (5)(B) specifically covers:

“an alien who has been admitted to the United States under a nonimmigrant visa.”

This includes most F‑1 student visa holders like Ahmadou. The prohibition is categorical, subject to narrow statutory exceptions (e.g., certain hunting permits).

B. Entrapment vs. entrapment by estoppel

Traditional entrapment focuses on:
- Government inducement of the crime; and
- The defendant’s predisposition (or lack thereof) to commit it.
- It is rooted in concerns about law enforcement overreaching in creating crime.
Entrapment by estoppel is different:
- The focus is not on inducement or predisposition, but on government assurances about legality.
- The question is whether it is unfair to punish conduct that the government itself represented as lawful.
- The defense does not require lack of criminal intent; it hinges on due process and fundamental fairness.

C. “Federal official or agent” for entrapment by estoppel

To invoke the defense, a defendant must show:

Reliance on a federal government official empowered to interpret or administer the law; or
Reliance on someone who is an authorized agent of the federal government for that purpose.

After Ahmadou:

Federally licensed firearms dealers in the Fifth Circuit are categorically treated as private individuals, not federal officials or agents, for entrapment‑by‑estoppel purposes.
Mere federal licensure, regulation, or reporting duties do not create the necessary agency relationship.

D. “Affirmative misrepresentation” vs. omission

The Fifth Circuit’s doctrine requires proof that:

The government official affirmatively stated or clearly assured that specific conduct was lawful.
Simply omitting a restriction, failing to warn, or providing incomplete information generally does not qualify.

This distinction is central in Ahmadou: TGC’s partial list and silence about § 922(g)(5)(B) was treated as omission, not an affirmative statement that nonimmigrant visa holders may possess firearms.

E. Guidelines “departure” vs. § 3553(a) “variance”

A Guidelines departure:
- Is authorized by specific Guideline provisions (e.g., Application Notes) that allow moving above or below the advisory range based on unusual circumstances recognized by the Commission.
- Must comply with any procedural and substantive limitations in the Guideline itself.
A variance:
- Occurs when the court, after correctly calculating the advisory range, imposes a non‑Guidelines sentence based directly on the statutory factors in 18 U.S.C. § 3553(a).
- Is not governed by Guideline‑specific departure provisions, but must be supported by a reasoned, § 3553(a)‑based explanation.

In Ahmadou, the majority treats the 78‑month sentence as a variance, not a departure, though the oral record blurred the terminology.

F. U.S.S.G. § 3A1.4 and Application Note 4

§ 3A1.4(a):
- Applies a severe enhancement for offenses that “involved, or were intended to promote, a federal crime of terrorism.”
Application Note 4:
- Authorizes additional upward departures in certain terrorism‑related scenarios even where the cross‑referenced federal crime of terrorism is not satisfied.
- Requires specific findings about the nature and purpose of the offense.

The district court in Ahmadou rejected the enhancement and, per the majority, did not formally invoke Note 4, instead using § 3553(a) to vary upward.

G. Acceptance of responsibility and “rare situations”

A defendant who goes to trial can still receive § 3E1.1 credit only in “rare” cases where:

He admits all conduct and culpability; and
Proceeds to trial solely to litigate an issue such as:
- Constitutionality of the statute; or
- Its applicability to undisputed conduct, without denying blameworthiness.

Ahmadou teaches that asserting entrapment by estoppel usually disqualifies a defendant from this narrow category because it contests responsibility, not just legal application.

H. Procedural vs. substantive reasonableness

Procedural reasonableness concerns:
- Correct calculation of the Guidelines range;
- Consideration of § 3553(a) factors;
- Use of accurate facts; and
- Adequate explanation for the chosen sentence.
Substantive reasonableness asks whether, given the totality of circumstances, the sentence is reasonable in length and degree of variance or departure under the abuse‑of‑discretion standard.

In Ahmadou, the majority found no significant procedural error and held the upward variance substantively reasonable; Judge Dennis disagreed on the procedural prong.

IX. Broader Impact and Future Litigation

A. Entrapment by estoppel in firearms and immigration cases

The most durable impact of Ahmadou is the Fifth Circuit’s alignment with the majority of circuits on the status of firearms dealers:

Defendants in Texas, Louisiana, and Mississippi can no longer rely on a gun dealer’s license, forms, or advice as the basis for entrapment by estoppel.
Future estoppel claims in gun cases will have to be anchored in:
- Misstatements by actual federal officials (e.g., ATF agents, immigration officers, prosecutors); or
- Federal forms or publications (such as an outdated ATF Form 4473), where the federal origin of the error is clear.

The decision narrows the defense’s practical reach but also clarifies expectations:

FFLs are not quasi-governmental for criminal estoppel purposes.
Defendants bear the risk of relying on private interpretations or summaries of the law, even when those appear official or cite statutes.

B. Use of extremist content at sentencing

Ahmadou also stands as an example of how courts may:

Decline a terrorism enhancement when the government cannot prove “intended to promote” a federal crime of terrorism; yet
Still rely heavily on terrorism‑related ideology, propaganda consumption, and associations to justify substantial upward variances for non‑terrorism counts (like § 922(g)).

Going forward, sentencing courts in the Fifth Circuit are likely to:

View extensive, voluntary engagement with violent extremist materials as highly aggravating for otherwise “ordinary” gun or immigration offenses.
Use § 3553(a)(1) (nature and circumstances; history and characteristics) and § 3553(a)(2)(B)–(C) (deterrence and protection of the public) to justify above‑Guidelines sentences in terrorism‑adjacent prosecutions, even absent a formal terrorism enhancement.

At the same time, Judge Dennis’s dissent highlights an important counter‑pressure: the need for clear articulation and careful separation between:

Punishing conduct and risk; and
Improperly punishing beliefs, associations, or abstract ideology.

C. Sentencing clarity: departure vs. variance

The opinion underscores the importance of:

Trial courts using “departure” and “variance” terminology with precision; and
Providing a detailed explanation that links facts to § 3553(a) factors when imposing non‑Guidelines sentences.

The majority’s willingness to treat oral references as informal and rely on the Statement of Reasons suggests some flexibility. Judge Dennis’s stricter view suggests that future panels may scrutinize similar ambiguities more closely, especially where departure provisions like § 3A1.4, Note 4 are at play.

X. Conclusion

United States v. Ahmadou is a significant Fifth Circuit decision that:

Clarifies and narrows entrapment by estoppel in firearm cases by holding that federally licensed firearms dealers are not federal officials or agents for purposes of the defense, and by reaffirming that misleading omissions do not equal affirmative misrepresentations.
Shows the tension between asserting exculpatory defenses and obtaining acceptance‑of‑responsibility reductions, making clear that entrapment‑by‑estoppel claims generally contest blameworthiness and thus undermine eligibility for § 3E1.1 relief.
Demonstrates how courts can use terrorism‑related conduct and extremist speech as aggravating factors under § 3553(a)—even when a formal terrorism enhancement is unavailable—while navigating the limits imposed by the First Amendment.
Highlights a live intra‑panel debate on sentencing procedure, particularly the need to clearly distinguish between Guidelines departures and statutory variances and to provide an explanation adequate for meaningful appellate review.

For practitioners, the case is most immediately important as binding precedent that:

Forecloses entrapment‑by‑estoppel defenses premised on firearms dealers’ representations in the Fifth Circuit; and
Signals that courts may treat terrorist propaganda consumption and extremist associations as powerful aggravating factors in sentencing, even outside formal terrorism prosecutions.

More broadly, Ahmadou fits within a trajectory of federal criminal law that strictly limits defenses based on official misadvice, relies heavily on advisory Guidelines but affirms robust judicial discretion under § 3553(a), and cautiously but firmly permits the consideration of ideology and association at sentencing when tethered to concrete evidence of risk and culpability.

Licensed Firearms Dealers Are Not Federal Officials for Entrapment-by-Estoppel in the Fifth Circuit: Commentary on United States v. Ahmadou