No Pre‑Enforcement Challenge to § 922(g)(1) on Direct Appeal of a Different Conviction; Plain‑Error Barrier to Bruen Attacks on § 5861(d)

Introduction

In United States v. Drew Miller, No. 24-3254 (6th Cir. Mar. 31, 2025) (not recommended for publication), the Sixth Circuit affirmed a conviction and 46‑month sentence arising from two counts of possessing unregistered silencers under 26 U.S.C. § 5861(d). The case stems from a police investigation into a shooting at a Menards store in Ontario, Ohio, which led to the discovery of multiple firearms, two unregistered silencers, and a pistol with an obliterated serial number in the defendant’s vehicle; months later, officers again found unregistered silencers during a separate arrest and inventory search.

On appeal, Miller advanced three principal challenges:

• A Second Amendment attack on § 5861(d) under New York State Rifle & Pistol Association v. Bruen, arguing the statute is unconstitutional.
• An as‑applied challenge to permanent disarmament under 18 U.S.C. § 922(g)(1), framed as a consequence of his felony conviction.
• Procedural sentencing claims: (a) that the district court improperly treated the Menards shooting as “relevant conduct,” and (b) that it misapplied the four‑level enhancement for an obliterated serial number under U.S.S.G. § 2K2.1(b)(4)(B).

The Sixth Circuit rejected each argument. The opinion clarifies important doctrines on preservation and standards of review, the scope of issues cognizable on direct criminal appeal, and the evidentiary guardrails for sentencing—including use of uncharged conduct and the serial‑number “naked-eye” standard.

Summary of the Opinion

• Preservation and plain error: Miller’s Bruen-based attack on § 5861(d) was not preserved because it was raised only in pro se filings while he was represented by counsel (hybrid representation). Reviewing for plain error, the court held there is no “clear” law rendering § 5861(d) unconstitutional post‑Bruen, precluding relief.
• No pre‑enforcement challenge to § 922(g)(1) on this appeal: Although framed as an as‑applied Second Amendment challenge to “lifetime dispossession,” Miller was not convicted under § 922(g)(1). The Sixth Circuit held he cannot use the direct appeal of his § 5861(d) conviction and sentence to preemptively litigate the felon‑in‑possession ban. The issue would not affect his judgment and lies outside 18 U.S.C. § 3742(a)’s narrow channel for sentencing appeals.
• Sentencing affirmed:
  • The district court did not treat the Menards shooting as “relevant conduct” under U.S.S.G. § 1B1.3 to calculate the Guidelines range; instead, it permissibly considered the conduct under 18 U.S.C. § 3553(a) when choosing a sentence within the range.
  • The court’s factual findings tying Miller to the shooting were not clearly erroneous.
  • The four‑level enhancement for an obliterated serial number (§ 2K2.1(b)(4)(B)) was supported by photos and testimony showing the number was not visible to the naked eye, satisfying Sixth Circuit precedent.
• Disposition: Convictions and concurrent 46‑month sentences affirmed.

Analysis

Precedents Cited and Their Role

• Hybrid representation and preservation
  • United States v. Mosely (6th Cir. 1987) and United States v. Cromer (6th Cir. 2004): No constitutional right to hybrid representation; the decision to accept hybrid filings is discretionary.
  • United States v. Golson (6th Cir. 2024): Without leave for hybrid representation, a defendant’s pro se legal arguments are not considered; counsel must present the arguments to preserve them.
  • Faretta v. California (U.S. 1975): Right of self-representation; the court conducted a Faretta colloquy here but the defendant ultimately returned to counsel and pleaded guilty.
• Plain error
  • United States v. Bacon (6th Cir. 2018), United States v. Bauer (6th Cir. 2023), United States v. Vonner (6th Cir. 2008) (en banc), United States v. Tellez (6th Cir. 2023): Establish the four‑prong plain-error test and emphasize its rigor; an error must be clear under current law.
  • United States v. Emuegbunam (6th Cir. 2001): Only in exceptional circumstances is an error so plain the district judge was “derelict.”
  • United States v. Johnson (6th Cir. 2024): Absent precedent clearly invalidating the statute, a Bruen claim cannot meet plain‑error standards.
  • United States v. Burrell (6th Cir. 2024): If an issue remains the subject of reasonable debate, it is not plain error.
• Second Amendment challenges post‑Bruen
  • New York State Rifle & Pistol Ass’n v. Bruen (U.S. 2022): Announced the “history and tradition” test for Second Amendment challenges.
  • United States v. Peterson (5th Cir. 2025) and United States v. Saleem (4th Cir. 2024): Both circuits upheld § 5861(d) post‑Bruen; their existence underscores that any contrary conclusion is at least reasonably debatable, negating plain error.
  • United States v. Williams (6th Cir. 2024) and United States v. Morton (6th Cir. 2024): In the § 922(g)(1) context, the Sixth Circuit has rejected facial challenges while allowing as‑applied challenges focused on dangerousness.
• Appellate jurisdiction and scope of sentencing appeals
  • Fort Wayne Books, Inc. v. Indiana (U.S. 1989): Final judgments in criminal cases encompass conviction and sentence.
  • United States v. Marshall (6th Cir. 2020) and Fort Bend County v. Davis (U.S. 2019): § 3742(a) functions as a mandatory claim‑processing rule constraining sentencing appeals.
  • United States v. Risner (6th Cir. 2025) and Pettrey v. Enterprise Title Agency, Inc. (6th Cir. 2009): Appeals must be tethered to changing the outcome of the litigation; otherwise, the appellant lacks the requisite personal stake.
  • Richardson v. Ramirez (U.S. 1974): Illustrates that many collateral disabilities of felony status are litigated in separate civil cases rather than on direct criminal appeal.
• Sentencing methodology and fact‑finding
  • U.S.S.G. § 1B1.3 and United States v. Bowens (6th Cir. 2019): Define “relevant conduct” for Guidelines calculations.
  • United States v. Osborn (6th Cir. 2021): Distinguishes “relevant conduct” (Guidelines math) from the broader universe of facts a court may consider under § 3553(a).
  • Gall v. United States (U.S. 2007): Requires an individualized assessment under § 3553(a) when selecting a sentence.
  • United States v. Xu (6th Cir. 2024) and United States v. Gates (6th Cir. 2022): Outline common procedural errors at sentencing.
  • United States v. Brinley (6th Cir. 2012) and United States v. Amerson (6th Cir. 2018): A district court commits procedural error if it relies on clearly erroneous facts; factual findings are reviewed for clear error.
  • United States v. Sands (6th Cir. 2020) (quoting United States v. Carter, 9th Cir. 2005): A serial number is “altered or obliterated” when accurate information is made less accessible; not visible to the naked eye suffices for the § 2K2.1(b)(4) enhancement.

Legal Reasoning

1) Bruen challenge to § 5861(d): preserved?

Miller’s constitutional challenge appeared only in pro se filings submitted while he was represented. Because the district court did not authorize hybrid representation and did not rule on those filings, the arguments were not preserved. The Sixth Circuit therefore applied plain‑error review.

On the merits at the plain‑error stage, the panel emphasized that no binding authority holds § 5861(d) unconstitutional under Bruen, and other circuits have upheld it. Absent controlling precedent “clearly” invalidating the statute, any error is not “plain.” This track mirrors the Sixth Circuit’s approach in Johnson and Burrell: when the legal question is unsettled or subject to reasonable debate, plain‑error relief is unavailable.

2) As‑applied challenge to § 922(g)(1): cognizable on this appeal?

Miller argued that his felony conviction triggers permanent disarmament and that, as applied to him, this violates the Second Amendment. The court treated this as an attempted pre‑enforcement challenge to § 922(g)(1) because Miller had not been charged under that statute. Two jurisdictional/justiciability constraints foreclosed review:

• No effect on the judgment under § 1291: The appeal is from the final judgment on his § 5861(d) conviction. Setting aside § 922(g)(1) would not alter the conviction or sentence imposed in this case.
• Sentencing appeals are narrowly channeled by § 3742(a): Appellate review focuses on whether “the sentence was imposed in violation of law.” Collateral disabilities (like future exposure under § 922(g)(1)) are not part of the sentence in the judgment and thus lie outside § 3742(a)’s scope.

Consequently, the Sixth Circuit held that Miller lacks the requisite “personal stake” to litigate § 922(g)(1)’s constitutionality in this appeal. The court did not reach the merits (i.e., whether his history demonstrates “dangerousness” under Morton), leaving any such challenge for an appropriate future case or separate civil action.

3) Sentencing: relevant conduct vs. § 3553(a) facts

Miller contended the district court wrongly used the Menards shooting as “relevant conduct” to increase the base offense level. The panel reviewed the transcript and rejected the premise: the court’s Guidelines math did not change based on the shooting. Rather, the judge referenced the shooting in the broader § 3553(a) analysis—considering protection of the public, the nature and circumstances of the offense, and the defendant’s personal characteristics—to justify a top‑of‑range sentence. That is permissible under Osborn and Gall.

Miller alternatively argued that the sentencing court relied on clearly erroneous facts when it attributed the shooting to him. The Sixth Circuit disagreed, pointing to surveillance video of a light‑colored Crown Victoria, an anonymous tip matching Miller’s vehicle and behavior, and spent .300 Blackout casings recovered from his Crown Victoria consistent with the ammunition used in the shooting. On that record, the factual finding was not clearly erroneous, defeating the procedural‑error claim.

4) The obliterated serial-number enhancement

The district court applied the four‑level enhancement at U.S.S.G. § 2K2.1(b)(4)(B), finding the serial number on a Jennings J‑22 pistol was obliterated. Although the court did not explicitly invoke the “naked-eye” standard from Sands, the government introduced photographs (authenticated by an FBI agent) showing the serial number was not visible to the naked eye. The panel concluded that the evidentiary record satisfied the standard; any failure to utter the talismanic phrase did not constitute reversible error.

Impact

• Preservation discipline in Second Amendment litigation: Defendants seeking to mount Bruen challenges to federal firearms statutes must do so through counsel or with court‑authorized self‑representation, and they must obtain rulings to preserve issues. Pro se filings lodged while represented will not preserve constitutional claims absent leave for hybrid representation.
• Plain‑error barrier for § 5861(d) Bruen claims: Unless and until the Supreme Court or the Sixth Circuit (in a published decision) invalidates § 5861(d), unpreserved Bruen challenges to the NFA silencer-registration offense will almost certainly fail under plain‑error review. The court’s citation to Fifth and Fourth Circuit decisions upholding § 5861(d) underscores that the issue remains, at minimum, reasonably debatable.
• Strategic channeling of § 922(g)(1) challenges: The opinion clarifies that a defendant cannot use a direct appeal from an unrelated conviction to preemptively contest § 922(g)(1). As‑applied challenges premised on personal non‑dangerousness must be brought in a posture where the issue affects the judgment (e.g., in a prosecution under § 922(g)(1)) or in a separate civil action meeting Article III requirements.
• Sentencing practice—uncharged conduct and evidentiary sufficiency: The court reaffirms the line between “relevant conduct” for Guidelines calculations and broader § 3553(a) considerations. Judges may consider reliable evidence of uncharged conduct when selecting a sentence within the range. Defendants disputing such reliance must mount concrete clear‑error challenges to the factual findings.
• Serial‑number enhancement proof: Photographic evidence and testimony establishing that a serial number cannot be read by the naked eye suffices for § 2K2.1(b)(4)(B). Counsel should ensure the record clearly documents the “naked-eye” unrecoverability to avoid disputes on appeal.

Complex Concepts Simplified

• Hybrid representation: When a defendant attempts to act pro se while also represented by counsel. There is no constitutional right to hybrid representation; courts can disregard such filings unless they authorize the arrangement.
• Plain‑error review: An appellate standard for unpreserved issues requiring the appellant to show an obvious error under current law that affected substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
• Facial vs. as‑applied challenge: A facial challenge claims a statute is unconstitutional in all applications; an as‑applied challenge claims it is unconstitutional as used against a particular person or in specific circumstances.
• Relevant conduct vs. § 3553(a) facts: “Relevant conduct” is a Guidelines term that can change the offense level; once the range is set, courts may consider a broader set of facts under § 3553(a) to choose an appropriate sentence within or outside the range.
• Collateral consequences: Legal disabilities or risks that flow from a conviction (e.g., felon firearm prohibition), which are generally not part of the criminal sentence and often must be litigated separately.
• “Naked‑eye” test for obliteration: In the Sixth Circuit, a serial number is “altered or obliterated” if it is not readable by the naked eye, satisfying the enhancement at § 2K2.1(b)(4)(B).

Conclusion

The Sixth Circuit’s decision in United States v. Miller advances three practical teachings. First, preservation matters: Bruen challenges must be properly presented through counsel (or authorized self‑representation) and decided by the district court to avoid the formidable obstacle of plain‑error review. Second, a defendant cannot leverage the direct appeal of one conviction to preemptively contest collateral statutory consequences such as the felon‑in‑possession bar—those challenges must be raised in a posture where they affect the judgment or in separate proceedings. Third, at sentencing, district courts may rely on reliable, uncharged conduct under § 3553(a) without misusing the “relevant conduct” rubric, and the “naked‑eye” standard continues to govern serial‑number obliteration enhancements.

Although the opinion is unpublished, its reasoning is likely to influence district courts and litigants in the Sixth Circuit on the procedural framing of Second Amendment claims, the scope of criminal appeals, and the evidentiary practices that support Guidelines enhancements and within‑range variances.