No Plain Error in Extending Garner: Fifth Circuit Requires Offense-Specific “Realistic Probability” to Disqualify Louisiana Aggravated Battery as a Crime of Violence; Bruen Does Not Render § 922(g)(1) Convictions Plainly Unconstitutional

No Plain Error in Extending Garner: Fifth Circuit Requires Offense-Specific “Realistic Probability” to Disqualify Louisiana Aggravated Battery as a Crime of Violence; Bruen Does Not Render § 922(g)(1) Convictions Plainly Unconstitutional

Introduction

This commentary analyzes United States v. Sereal, a published decision of the United States Court of Appeals for the Fifth Circuit (No. 23-30198, decided September 5, 2025). The case arises from a felon-in-possession conviction under 18 U.S.C. § 922(g)(1). The defendant, Busch Sereal, pleaded guilty and received a 120-month sentence (the statutory maximum), driven in part by a Guideline base offense level of 24 under U.S.S.G. § 2K2.1(a)(2), which applies when a defendant has at least two prior felony convictions for a “crime of violence” or a controlled substance offense. The Presentence Investigation Report identified two predicates: a 1998 Louisiana aggravated battery conviction and a 2000 distribution of cocaine conviction.

On appeal, Sereal raised two issues (for the first time, so subject to plain error review):

  • A constitutional challenge to § 922(g)(1) under the Second Amendment after New York State Rifle & Pistol Ass’n v. Bruen.
  • A challenge to the “crime of violence” classification of Louisiana aggravated battery under U.S.S.G. § 4B1.2(a), invoking Borden v. United States and the Fifth Circuit’s earlier decision in United States v. Garner (holding Louisiana aggravated assault with a firearm is not a “crime of violence”).

The Fifth Circuit (Judge Dana M. Douglas, joined by Judges King and Smith) affirmed. The opinion provides an important clarification at the intersection of plain error review and the categorical approach: defendants cannot rely on Garner’s general reasoning about Louisiana “general intent” crimes to disqualify different Louisiana offenses on plain error; they must establish a “realistic probability” that the specific offense of conviction has been applied to reckless or negligent conduct in state courts. The panel also reiterates that, under current circuit law, § 922(g)(1) convictions are not reversible plain error post-Bruen.

Summary of the Judgment

  • The court affirmed Sereal’s conviction under § 922(g)(1). On plain error review, a conviction under § 922(g)(1) is not clearly or obviously unconstitutional in light of Bruen. The Fifth Circuit’s post-Bruen jurisprudence (including United States v. Jones) continues to reject plain error challenges to the statute.
  • The court also affirmed the sentence. It held there was no clear or obvious error in treating Louisiana aggravated battery (La. R.S. 14:34) as a “crime of violence” for the Guidelines. Garner’s holding about Louisiana aggravated assault with a firearm does not automatically extend to aggravated battery. To show a clear error, the defendant needed to present Louisiana cases upholding aggravated battery convictions based on reckless or negligent conduct. The cases cited (State v. Howard; State in Interest of T.M.) did not do so.
  • Because there was no clear or obvious error, the court did not reach the remaining prongs of plain error review (effect on substantial rights and effect on the fairness, integrity, or public reputation of proceedings).

Analysis

Precedents Cited and Their Influence

  • Second Amendment and § 922(g)(1)
    • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Reset the Second Amendment framework by requiring that firearm regulations be consistent with the nation’s historical tradition of firearm regulation.
    • United States v. Jones, 88 F.4th 571 (5th Cir. 2023) (per curiam): Post-Bruen, the Fifth Circuit held that convicting under § 922(g)(1) is not plain error. The Sereal panel follows Jones and notes there has been no development making § 922(g)(1) plainly unconstitutional.
    • Henderson v. United States, 568 U.S. 266 (2013): Clarifies that “clear or obvious” error is assessed at the time of appellate review. Even so, the panel finds no present basis to deem § 922(g)(1) unconstitutional on plain error review.
    • Unpublished Fifth Circuit cases post-Bruen (e.g., Bartolomei; Burks) also reject plain error challenges to § 922(g)(1), reinforcing the result.
  • Categorical Approach, Mens Rea, and “Crime of Violence”
    • Borden v. United States, 593 U.S. 420 (2021): Reckless crimes do not qualify under the elements/force clause because force must be used “against the person of another,” targeting another with at least knowing or intentional mens rea.
    • Delligatti v. United States, 145 S. Ct. 797, 808 (2025): Reinforces Borden by reading “against another” to specify the object of force and “possibly also the mens rea” (knowingly or intentionally rather than negligently or recklessly).
    • United States v. Garner, 28 F.4th 678 (5th Cir. 2022): Applying Borden, the Fifth Circuit held that Louisiana aggravated assault with a firearm (a general intent crime) is not a “crime of violence” under § 4B1.2(a). However, Garner’s holding is offense-specific.
    • United States v. Bates, 24 F.4th 1017 (5th Cir. 2022) (per curiam) and United States v. Greer, 20 F.4th 1071 (5th Cir. 2021): Recognize Borden as the governing framework for crime-of-violence analyses under the Guidelines.
    • Moncrieffe v. Holder, 569 U.S. 184 (2013) and Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007): In the categorical approach, courts focus on the least culpable conduct realistically prosecuted under the statute; defendants must show a “realistic probability,” not a theoretical possibility, that the state applies the statute in the way they propose.
    • United States v. King, No. 24-30323, — F.4th —, 2025 WL 2371032 (5th Cir. Aug. 15, 2025): The Fifth Circuit has been “cautious” about extending Garner beyond the specific statute addressed there, particularly on plain error review. The panel in Sereal expressly relies on King.
    • Johnson v. United States, 576 U.S. 591 (2015): Invalidated the ACCA residual clause; the Sentencing Commission’s Amendment 798 (2016) removed the Guidelines’ residual clause, leaving the force clause and enumerated-offense clause (which lists “aggravated assault,” but not “aggravated battery”).
  • Louisiana Authorities
    • La. R.S. 14:34 (1980 version): Aggravated battery is “battery committed with a dangerous weapon.” “Battery” is “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”
    • State v. Howard, 638 So. 2d 216 (La. 1994): Labels aggravated battery a general intent crime, but affirmed a conviction based on intentional conduct directed at the victim; it did not rest the conviction on mere recklessness or negligence.
    • State in Interest of T.M., 105 So. 3d 969 (La. App. 5 Cir. 2012): Affirms aggravated battery where the juvenile knowingly cut classmates with a concealed razor during high-fives—again, intentional/knowing conduct, not mere recklessness.
    • State in Interest of C.B., 251 So. 3d 562 (La. App. 2 Cir. 2018) and State v. Bonier, 367 So. 2d 824 (La. 1979): Louisiana treats a gun as a “dangerous weapon,” but that characterization does not itself resolve mens rea.

Legal Reasoning

The appellate posture is decisive: because neither the constitutional issue nor the Guidelines issue was preserved below, the court applies plain error review. That imposes a high bar—Sereal had to show a forfeited error that is clear or obvious and affects substantial rights, and even then, the court’s correction is discretionary.

On the § 922(g)(1) claim, the panel holds there is no clear or obvious error to vacate a felon-in-possession conviction after Bruen. The Fifth Circuit has repeatedly rejected plain error challenges to § 922(g)(1). The panel notes there has been no intervening legal development to make the statute plainly unconstitutional. Henderson’s “time of review” point does not change that outcome.

On the “crime of violence” claim, the panel carefully distinguishes Garner. Garner held that Louisiana aggravated assault with a firearm is a general intent crime that can be committed with recklessness or negligence, and thus does not satisfy the force clause after Borden. But the Sereal panel refuses to mechanically extend that reasoning to a different Louisiana offense (aggravated battery), emphasizing two principles:

  • Offense specificity: The categorical approach is offense-by-offense. The mere fact that Louisiana labels many crimes “general intent” does not mean every such statute necessarily encompasses reckless or negligent force in practice.
  • Realistic probability: Following Moncrieffe and Duenas-Alvarez, a defendant must show actual Louisiana cases upholding convictions under the specific statute based on reckless or negligent conduct. Without that, courts will not deploy “legal imagination” to hypothesize how the statute could apply.

Applying those principles, the Fifth Circuit canvasses the two cases Sereal offered:

  • Howard: Although it calls aggravated battery a general intent crime, the conviction rested on intentional conduct directed against the victim (grabbing the victim and handling a gun during the act). The discussion of foreseeable consequences does not convert the offense into a recklessness-based conviction for purposes of the categorical approach.
  • T.M.: The juvenile “must have known” injury was reasonably certain—again, at least knowing conduct, not negligence or recklessness.

Because these cases do not show that Louisiana in fact upholds aggravated battery convictions for reckless or negligent applications of force against a person, Sereal fails to demonstrate a “realistic probability” that aggravated battery falls below the Borden threshold. Consequently, it is not “clear or obvious” error to classify aggravated battery as a “crime of violence” under the Guidelines. The court therefore stops at plain error prong two and affirms without reaching whether any error affected substantial rights. Notably, the district court also documented that it would impose the same sentence even if its Guidelines calculations were incorrect, which would have presented an additional hurdle on prong three had the panel needed to reach it.

Impact

  • Plain error boundaries post-Garner:
    • Defense arguments cannot assume that Louisiana’s “general intent” label automatically makes a statute non-qualifying under Borden. The Fifth Circuit now explicitly requires offense-specific proof—a Louisiana decision affirming a conviction for reckless or negligent use of force under that precise statute.
    • Garner remains good law for Louisiana aggravated assault with a firearm, but Sereal cautions against generalizing Garner to other Louisiana offenses on plain error review.
  • Litigation guidance for the categorical approach:
    • To exclude a prior Louisiana conviction from “crime of violence” status, defense counsel should build a record with on-point Louisiana cases demonstrating convictions based on reckless or negligent conduct for the same statute. Absent that, appellate courts are unlikely to find a clear or obvious error.
    • Conversely, prosecutors can defend Guideline classifications by showing the absence of such offense-specific cases and by pointing to decisions that reflect intentional or knowing applications of force.
  • Second Amendment challenges to § 922(g)(1):
    • In the Fifth Circuit, plain-error attacks on § 922(g)(1) remain non-starters post-Bruen. Defendants intent on raising Second Amendment claims should preserve the issue in the district court, and consider developing as-applied historical evidence.
    • The panel’s reliance on circuit precedent and the absence of contrary Supreme Court guidance underscores that any change is more likely to come from en banc reconsideration or the Supreme Court.
  • Sentencing practice:
    • District courts and probation officers can continue to treat Louisiana aggravated battery as a qualifying predicate in the Fifth Circuit absent contrary, offense-specific Louisiana case law showing reckless or negligent convictions. Defense counsel must object contemporaneously to preserve a more favorable standard of review.
    • Alternative sentencing statements (as used here) may complicate an appellant’s ability to satisfy plain error prong three (effect on substantial rights), even if an error were established.

Complex Concepts Simplified

  • Plain error review:
    • Because the defendant did not raise the issues in the trial court, the appellate court reviews for “plain error.” The defendant must show an error that is clear or obvious, affected his substantial rights (likely affected the outcome), and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Courts often stop the analysis if any one of these steps fails.
  • Crime of violence under the Guidelines:
    • Defined in § 4B1.2(a). Two main routes matter now: the force clause (offense has as an element the use, attempted use, or threatened use of physical force against another) and the enumerated-offense clause (lists specific crimes, like “aggravated assault”). The residual clause was removed in 2016 after Johnson.
  • Force clause after Borden:
    • To qualify, the offense must require at least knowing or intentional force “against another.” If the statute allows conviction for reckless or negligent conduct, it generally does not count under the force clause.
  • Categorical approach and “realistic probability”:
    • Courts compare the statute’s elements to the federal definition and consider the least culpable conduct the statute realistically covers. Defendants must identify actual cases in which the state applied the statute in the less culpable way; hypotheticals are not enough.
  • Louisiana mens rea categories:
    • Specific intent: The defendant actively desired the criminal consequences.
    • General intent: The prohibited result could reasonably be expected to follow from the voluntary act; Louisiana decisions sometimes treat this as encompassing reckless or even negligent mental states, but application varies by offense.
    • Criminal negligence: Gross deviation from standard care, without intent to cause the result.

Conclusion

United States v. Sereal confirms two core points in Fifth Circuit law. First, § 922(g)(1) remains constitutionally intact on plain error review post-Bruen; the panel perceives no clear or obvious error in upholding a felon-in-possession conviction. Second, and more significantly for Guidelines practice, the court declines to extend Garner’s reasoning to Louisiana aggravated battery on plain error review. The decision operationalizes the Supreme Court’s “realistic probability” requirement in the categorical approach: to show a clear or obvious error, a defendant must present offense-specific Louisiana cases where aggravated battery was sustained on reckless or negligent use of force. Without that showing, treating aggravated battery as a “crime of violence” is not clearly or obviously wrong.

The opinion thus serves as a roadmap: litigants must tailor categorical-approach arguments to the particular statute of conviction and marshal concrete state-court applications. For the time being, Louisiana aggravated battery may continue to function as a “crime of violence” predicate in the Fifth Circuit absent contrary Louisiana authority, and § 922(g)(1) convictions will continue to withstand plain error Second Amendment challenges.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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