No Individualized Dangerousness Assessment for Drug‑Trafficking Felons Under § 922(g)(1): Fifth Circuit Harmonizes Reyes with Kimble in United States v. Orozco

Introduction

In United States v. Orozco, No. 24-50104 (5th Cir. Sept. 11, 2025) (unpublished), the Fifth Circuit affirmed a felon‑in‑possession conviction over an as‑applied Second Amendment challenge in the wake of New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi. The panel majority held that its recent, published decision in United States v. Kimble forecloses constitutional challenges to 18 U.S.C. § 922(g)(1) where the defendant’s predicate felony convictions are for drug trafficking. Rejecting a call to conduct a case‑specific inquiry into the defendant’s personal dangerousness, the majority reasoned that disarmament of drug‑trafficking felons categorically accords with the Nation’s historical tradition of firearm regulation.

The decision also addresses how to read the Fifth Circuit’s recent cases together—particularly Reyes and Kimble—on whether courts must engage in individualized dangerousness assessments when adjudicating as‑applied challenges to § 922(g)(1). A concurrence laments the circuit’s “scattershot” approaches and urges clearer guidance for district courts, while a dissent argues that the court’s rule of orderliness makes Reyes controlling and would require an individualized assessment that, on the facts here, favors the defendant.

Case Background and Procedural History

Antonio Orozco pled guilty in 2012 to importing and possessing with intent to distribute approximately 55 kilograms of marijuana, concealed in a vehicle he drove into the United States. He received concurrent 24‑month sentences. In 2023, after an incident involving a weapon, Orozco was indicted for being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(8). He initially pled guilty, then withdrew his plea and moved to dismiss the indictment, claiming § 922(g)(1) is unconstitutional on its face and as applied to him in light of Bruen, Rahimi, and Daniels.

The district court denied the motion to dismiss. Orozco later entered a conditional guilty plea preserving his right to appeal that denial under Federal Rule of Criminal Procedure 11(a)(2) and received a below‑Guidelines 20‑month sentence and three years’ supervised release. He appealed, pressing an as‑applied Second Amendment challenge and emphasizing that the firearm was a common handgun for protection.

Summary of the Opinion

The panel (Judge Cory T. Wilson writing; Judge Higginson concurring in the judgment only; Judge Graves dissenting) affirmed. The majority held that the court’s published decision in United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), controls and forecloses Orozco’s claim because Orozco’s predicate felonies are for drug trafficking. In Kimble, the Fifth Circuit concluded that “disarming drug traffickers accords with the nation’s history and tradition of firearm regulation” and that “Congress can categorically disarm individuals convicted of violent felonies like drug trafficking,” without requiring an individualized assessment of dangerousness.

Addressing perceived tension with United States v. Reyes, 141 F.4th 682 (5th Cir. 2025) (per curiam), the majority read Reyes as consistent with Kimble. In the majority’s view, Reyes looked to the defendant’s criminal history to determine whether his predicates placed him in a historically disarmed class; Kimble simply recognized drug trafficking as one such category, thereby obviating the need for defendant‑specific dangerousness findings.

Judge Higginson concurred in the judgment given binding circuit precedent (Diaz and Kimble), but highlighted the lack of a clear, uniform test in the circuit’s post‑Bruen § 922(g)(1) cases, which sometimes rely on categorical treatment of predicate felonies, sometimes on the specific facts of the predicate, and sometimes on the defendant’s broader criminal record.

Judge Graves dissented, invoking the Fifth Circuit’s rule of orderliness to argue that Reyes—requiring an individualized assessment—controls over Kimble to the extent of any conflict. Applying that assessment, he would find Orozco’s prior marijuana offenses neither violent nor weapon‑related and would vacate the conviction.

Analysis

Precedents Cited and How They Shaped the Decision

Bruen, 597 U.S. 1 (2022): Establishes the text‑and‑history framework. Once the conduct is covered by the Second Amendment’s text, the government must justify its regulation by pointing to a well‑established historical tradition of similar regulation. The Orozco majority relies on this method through Kimble: drug‑trafficking felons fall within a historically disarmable class.
Rahimi, 602 U.S. 680 (2024): Reaffirms Bruen’s historical‑analogical reasoning and upholds firearm restrictions tied to judicial findings that a person poses a credible threat to others, showing how “dangerousness” maps onto historical analogues. The Orozco majority cites Rahimi’s “relevantly similar” analogue approach as consistent with examining the nature of the predicate offense to identify historically disarmed groups.
Daniels, 77 F.4th 337 (5th Cir. 2023): Although cited by Orozco, Daniels invalidated § 922(g)(3) as applied to unlawful users of controlled substances—a different status provision. Daniels doesn’t help a felon with drug‑trafficking predicates; Orozco’s challenge rises or falls with the felon‑in‑possession jurisprudence represented by Kimble, Reyes, and related cases. (Judge Higginson also references a later Daniels decision, 124 F.4th 967 (5th Cir. 2025) (concurring), to show the breadth of ongoing Second Amendment debates.)
Kimble, 142 F.4th 308 (5th Cir. 2025): The lynchpin. Kimble holds that Congress may categorically disarm drug‑trafficking felons under § 922(g)(1), consistent with the historical tradition of disarming dangerous persons; it explicitly rejects a requirement for individualized dangerousness assessments in that setting.
Reyes, 141 F.4th 682 (5th Cir. 2025): Upheld § 922(g)(1) in an as‑applied challenge by concluding the defendant posed a “credible threat to the physical safety of others,” drawing on the defendant’s broader criminal history, including violent conduct. The Orozco majority reads Reyes as another instance of identifying historically disarmed classes through the nature of a defendant’s record, not as mandating case‑by‑case dangerousness findings across the board.
Diaz, 116 F.4th 458 (5th Cir. 2024): Provides the de novo standard of review and, in the concurrence’s telling, exemplifies a categorical, predicate‑offense approach—recognizing severe, lasting punishments for certain crimes at the Founding as relevant to disarmament analogues.
Betancourt, 139 F.4th 480 (5th Cir. 2025), and Alaniz, 146 F.4th 1240 (5th Cir. 2025): Cited by the concurrence to illustrate variability in the circuit’s method—sometimes focusing on detailed predicate‑offense facts (Betancourt) or on a defendant’s entire criminal record (Alaniz), and sometimes proceeding categorically (Kimble). The concurrence underscores the resulting lack of a bright‑line test for district courts.
Schnur, 132 F.4th 863 (5th Cir. 2025) (Higginson, J., concurring): Notes other circuits’ deference to the Supreme Court’s repeated assurances that prohibitions on felons possessing firearms are “presumptively lawful,” situating the Fifth Circuit’s internal debate within national trends.
Williams, 113 F.4th 637 (6th Cir. 2024), and Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025): Referenced in the concurrence and majority’s discussion to illustrate the spectrum—from considering “entire criminal records” (Sixth Circuit) to cautioning against felon‑by‑felon dangerousness inquiries (Third Circuit).
Traxler, 764 F.3d 486 (5th Cir. 2014): The dissent invokes the Fifth Circuit’s rule of orderliness, arguing that the earlier Reyes controls over Kimble if there is conflict; the majority avoids the issue by harmonizing Reyes with Kimble.

Legal Reasoning

The majority’s reasoning is straightforward: Kimble is controlling, published circuit precedent establishing that disarming drug‑trafficking felons accords with the historical tradition of firearm regulation. Under Bruen and Rahimi, courts ask whether the modern law is “relevantly similar” to historical analogues. Kimble found that drug trafficking places an individual within a class historically considered dangerous and thus subject to disarmament. This determination is categorical at the class level—i.e., drug‑trafficking felons as a group—rather than dependent on person‑specific proof that a particular defendant is dangerous.

Confronting the defendant’s reliance on Reyes, the majority reads Reyes not as erecting a mandatory, individualized dangerousness test but as another path to the same destination: it surveyed Reyes’s record to confirm that his predicates placed him within a disarmable class. In other words, Reyes is framed as a predicate‑nature inquiry that happened to rely on broader conduct evidence, while Kimble articulates that drug trafficking—by its nature—qualifies as a historically disarmed category. On that view, there is no conflict, and Kimble governs Orozco’s challenge.

The majority also underscores that courts in this line of cases have examined underlying conduct “as part and parcel” of the required historical‑analogue analysis under Bruen and Rahimi—i.e., to determine whether the law at issue is “relevantly similar” to Founding‑era disarmament practices. But where Kimble has already identified the predicate—drug trafficking—as within a disarmable class, further individualized inquiry is unnecessary.

The concurring opinion agrees that Kimble and Diaz compel affirmance but flags that the circuit’s approaches are inconsistent: sometimes categorical by offense label, sometimes conduct‑specific as to the predicate, and sometimes defendant‑specific across the entire record. This variability creates uncertainty for district courts and citizens alike. The concurrence highlights a tension in recent cases about whether courts should “look beyond” the predicate conviction to broader indicia of dangerousness—a practice Kimble disclaims but that other decisions appear to endorse.

The dissent would apply Reyes as controlling, earlier panel precedent requiring an individualized assessment of whether the defendant poses a credible threat to the physical safety of others. Finding Orozco’s marijuana distribution/importation crimes neither weapon‑related nor violent, the dissent would vacate as unconstitutional. The dissent emphasizes the rule of orderliness: a later panel (Kimble) cannot overrule an earlier one (Reyes). The majority’s harmonization seeks to sidestep that doctrinal collision.

Impact and Forward‑Looking Implications

Orozco, although unpublished, sends clear signals for the Fifth Circuit:

Drug‑trafficking predicates: In light of Kimble, as‑applied challenges to § 922(g)(1) by defendants with drug‑trafficking felonies (including marijuana importation and possession with intent to distribute) will almost certainly fail without an individualized dangerousness inquiry. That is the practical holding of Orozco.
No felon‑by‑felon dangerousness showing: For drug‑trafficking felons, courts need not “look beyond” the predicate to assess personal propensity to misuse firearms. This simplifies litigation in a large swath of § 922(g)(1) cases.
Ongoing methodological tension: The concurrence’s critique underscores real variability across Fifth Circuit decisions about the proper lens for as‑applied challenges—categorical (by offense type), conduct‑specific (facts of the predicate), or defendant‑specific (entire criminal history). That lack of uniformity invites en banc clarification or further panel refinement.
Intercircuit developments: The opinions’ references to other circuits reflect a broader national debate about the scope of “dangerousness” and whether courts should engage in person‑specific assessments. While many courts treat felon disarmament as “presumptively lawful,” the contours of that presumption—particularly for nonviolent and older predicates—remain contested.
Marijuana‑specific implications: Regardless of evolving state laws, federal drug‑trafficking felonies involving marijuana qualify as disarming predicates in the Fifth Circuit. Daniels’s success against § 922(g)(3) (unlawful users) does not translate to relief for felons with distribution/importation convictions.

Complex Concepts Simplified

As‑applied vs. facial challenge: An as‑applied challenge argues the statute is unconstitutional as applied to a particular person’s circumstances. Orozco pursued an as‑applied challenge. A facial challenge argues the statute is unconstitutional in all its applications.
§ 922(g)(1): The federal felon‑in‑possession statute. It criminalizes possession of a firearm by anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” with some exceptions not relevant here.
Bruen’s method: First, ask if the Second Amendment’s text covers the conduct (possessing a handgun for self‑defense generally does). If so, the burden shifts to the government to show a historical tradition of analogous regulation. Courts look for “relevantly similar” historical analogues, not one‑to‑one matches.
“Dangerousness” in Second Amendment law: Post‑Bruen and Rahimi, many courts assess whether a modern restriction fits within a Founding‑era practice of disarming individuals deemed dangerous. Some decisions treat certain felony categories (e.g., violent crime, drug trafficking) as inherently indicative of dangerousness; others look at the person’s actual record to decide.
Categorical vs. individualized assessments: A categorical approach asks whether the predicate offense type places the person in a historically disarmed class (no personal dangerousness finding required). An individualized assessment asks whether this particular person, in light of their record, poses a credible threat.
Rule of orderliness (Fifth Circuit): One panel cannot overrule another earlier panel’s binding decision; only the en banc court, the Supreme Court, or an intervening change in law can do so. The dissent contends Reyes controls; the majority avoids conflict by harmonizing Reyes with Kimble.
Unpublished opinions in the Fifth Circuit: Under 5th Cir. R. 47.5, unpublished opinions are not binding precedent (with limited exceptions) but may be persuasive. Orozco itself is unpublished; its force derives from applying the published Kimble decision.
“Common handgun for protection” argument: While the handgun is an arm “in common use” for lawful purposes, Bruen’s second step permits disarmament of persons historically subject to firearm disabilities. The key question becomes whether the person belongs to a historically disarmed class (here, drug‑trafficking felons), not whether the arm itself is commonly possessed.
“Violent felony” usage: The panel describes drug trafficking as akin to a “violent felony” for Second Amendment dangerousness purposes. That term here is descriptive, not a reference to the narrower, technical definitions used in statutes like the Armed Career Criminal Act. The point is to signal that drug trafficking is treated as a dangerous offense category for historical‑analogue analysis.

Conclusion

United States v. Orozco confirms and operationalizes the Fifth Circuit’s holding in Kimble: drug‑trafficking felonies categorically support disarmament under § 922(g)(1) without an individualized dangerousness assessment. The panel majority harmonizes Reyes by characterizing it as another instance of identifying historically disarmable categories rather than a mandate for person‑by‑person inquiries. The concurrence highlights an unresolved methodological tension across the circuit’s post‑Bruen case law, while the dissent invokes the rule of orderliness to insist on individualized assessments and would find Orozco’s prior marijuana felonies non‑violent and non‑weapon‑related.

Practically, Orozco means that defendants with drug‑trafficking predicates within the Fifth Circuit should expect their as‑applied Second Amendment challenges to § 922(g)(1) to fail under Kimble, regardless of mitigation arguments about personal dangerousness or the benign nature of their firearm possession. More broadly, the decision underscores the need for clearer, uniform guidance on how courts should conduct as‑applied Bruen analyses in felon‑in‑possession cases—a task that may fall to an en banc Fifth Circuit or future Supreme Court clarification.