Plain-Error Reversal of § 922(g)(1) As Applied After Intervening Precedent, and “Unbundling” Grouped Counts for Resentencing

Case: United States v. Elliott (5th Cir. Aug. 11, 2026) (per curiam, unpublished)
Key holdings: (1) Under intervening circuit precedent, it is plain error to uphold a § 922(g)(1) conviction as applied to a defendant whose predicate felony is simple cocaine possession; (2) where a reversed conviction was grouped with other counts under U.S.S.G. § 3D1.2(c), the sentences on the grouped counts must be vacated and remanded as a “sentencing package”; (3) alleged Guidelines misapplication may be harmless where the district court considered the competing ranges and stated it would impose the same sentence regardless.

I. Introduction

Burneal Elliott pled guilty in the Eastern District of Louisiana to four counts: felon-in-possession (18 U.S.C. § 922(g)(1)), possession of a machinegun (18 U.S.C. § 922(o)), drug possession with intent to distribute (21 U.S.C. § 841(a)(1)), and possession of a firearm in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)(i)). After his plea, he moved to dismiss the § 922(g)(1) and § 922(o) counts on constitutional grounds.

The district court denied the motion as untimely under Federal Rule of Criminal Procedure 12 and, alternatively, rejected the merits. At sentencing, the court applied a firearms-number enhancement under U.S.S.G. § 2K2.1(b)(1)(B) (8–24 firearms) and imposed an upward variance to reach a 15-year aggregate sentence. Elliott appealed, challenging (1) the constitutionality of his firearms convictions and (2) the enhancement and related findings.

The Fifth Circuit confronted three central issues:

• Procedural posture: What standard of review applies when constitutional challenges are raised late under Rule 12?
• Second Amendment / constitutionality: Whether § 922(g)(1) and § 922(o) are unconstitutional (facially and/or as applied).
• Sentencing: Whether the firearms-number enhancement was erroneous and, if so, whether any error was harmless; and how reversal of one grouped count affects the overall sentencing package.

II. Summary of the Opinion

The court applied plain-error review because Elliott filed his Rule 12 motion long after pleading guilty and did not show “good cause.” On the merits:

• § 922(g)(1) (Count 1): Reversed. Citing United States v. Hembree, the panel held it was plain error to treat § 922(g)(1) as constitutional as applied to Elliott (given the type of predicate felony addressed by Hembree). The error affected substantial rights and warranted correction.
• § 922(o) (Count 2): Affirmed. Elliott conceded that United States v. Wilson foreclosed both his facial and as-applied challenges; the panel also referenced Hollis v. Lynch in support of the proposition that machineguns fall outside Second Amendment protection in this circuit’s framework.
• Guidelines enhancement (§ 2K2.1(b)(1)(B)): Even assuming the district court erred in counting firearms or finding relevant conduct, any error was harmless because the court considered the parties’ competing Guidelines positions and stated it would impose the same sentence regardless of the enhancement.
• Remedy: Because Counts 1–3 were grouped under U.S.S.G. § 3D1.2(c), reversal of Count 1 required vacatur of the sentences on Counts 1–3 and remand for resentencing as a single “sentencing package.” The § 924(c) sentence (Count 4) was affirmed.

III. Analysis

A. Precedents Cited (and How They Drove the Result)

1. Procedural default and plain-error framework

• United States v. Vasquez, 899 F.3d 363 (5th Cir. 2018): The court relied on Vasquez to apply plain-error review where a defendant raises a Rule 12(b)(3) indictment-defect motion after the required deadline without showing “good cause.” This precedent set the review posture for both constitutional challenges.
• United States v. Toure, 965 F.3d 393 (5th Cir. 2020): Toure supplied the familiar four-part plain-error structure: (1) clear/obvious error, (2) affecting substantial rights, and (3) discretionary correction when fairness/integrity/public reputation is seriously affected (the opinion quotes this prong explicitly).
• United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012): This was pivotal on “plainness” over time. The panel used Escalante-Reyes to hold that it assesses whether error is “plain” by applying current law on appeal, not by freezing the analysis at the time of the district court ruling. That principle allowed a post-district-court decision (Hembree) to make the error “plain” on appeal.
• United States v. Knowles, 29 F.3d 947 (5th Cir. 1994): The court invoked Knowles to explain (a) when an error affects “substantial rights” (prejudice/outcome effect) and (b) why leaving an unconstitutional statute-of-conviction uncorrected can satisfy the fairness/integrity/public reputation prong.

2. Substantive constitutional holdings for firearms statutes

• United States v. Hembree, 165 F.4th 909 (5th Cir. 2026): The decisive authority. The panel stated that Hembree “recently held that § 922(g)(1) is unconstitutional as applied to defendants whose predicate felony is simple possession of cocaine.” With that rule in place, the district court’s contrary conclusion became “plainly erroneous,” compelling reversal of Count 1.
• United States v. Wilson, 164 F.4th 380 (5th Cir.), reh’g denied, 174 F.4th 474 (5th Cir. 2026): This foreclosed Elliott’s challenges to § 922(o). The panel treated Wilson as dispositive, ending the inquiry at the “clear or obvious error” step (Elliott could not show any error under binding precedent).
• Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016): Cited to reinforce the circuit’s position that “[m]achineguns . . . do not receive Second Amendment protection,” upholding § 922(o) at “step one” of the referenced “Heller framework.” Even though Elliott’s argument was independently foreclosed by Wilson, Hollis supplies doctrinal background for the circuit’s machinegun exception.

3. Sentencing error, harmlessness, and resentencing scope

• United States v. Hagman, 740 F.3d 1044 (5th Cir. 2014): Provided the standard of review for Guidelines issues (de novo for application; clear error for factual findings) and characterized both firearm-count determinations under § 2K2.1(b) and relevant-conduct findings as factual.
• United States v. Clay, 787 F.3d 328 (5th Cir. 2015): Anchored the panel’s statement that even if there is clear error, harmless error review applies to Guidelines mistakes.
• United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025): Supplied the modern Fifth Circuit articulation of how the Government can show harmlessness despite an incorrect Guidelines range—especially by demonstrating that the district court considered both ranges and would impose the same sentence either way, without a “magic words” requirement, so long as the court actually entertained the Guidelines-range dispute.
• United States v. De Bruhl, 118 F.4th 735 (5th Cir. 2024): Controlled the remedy after reversal of one grouped count. The panel used De Bruhl to apply the “sentencing package” concept: when counts are interrelated/interdependent—particularly when “bundled” through grouping and concurrent sentences—resentencing on all affected counts is required after reversal.

B. Legal Reasoning

1. Why § 922(g)(1) was reversed (plain error after intervening precedent)

The panel’s reasoning moved in a straight line:

• Standard of review locked in: Because the motion was untimely under Rule 12 and lacked “good cause,” the court reviewed for plain error (Vasquez).
• Error became “plain” on appeal: Although the district court decided before Hembree, the panel applied current law to decide plainness (Escalante-Reyes).
• Substantive rule from Hembree: Hembree made the district court’s rejection of Elliott’s as-applied challenge clearly erroneous, given the nature of the predicate felony category described in Hembree.
• Prejudice/substantial rights: The panel found the error affected substantial rights because, absent the error, the § 922(g)(1) charge would have been dismissed (Knowles).
• Discretionary correction: The court concluded that leaving an unconstitutional conviction in place would seriously affect fairness/integrity/public reputation (Knowles), and exercised discretion to correct.

Notably, once the panel decided to reverse on the as-applied ground, it declined to reach Elliott’s facial arguments (vagueness and Commerce Clause), reflecting the common judicial practice of avoiding unnecessary constitutional rulings.

2. Why § 922(o) was affirmed (foreclosed by circuit precedent)

Elliott conceded that United States v. Wilson foreclosed his facial and as-applied challenges. Under plain-error review, that concession effectively ends the inquiry: an appellant cannot show a “clear or obvious” error where circuit precedent authorizes the district court’s ruling. The panel also cited Hollis v. Lynch to locate the result in the circuit’s broader Second Amendment doctrine regarding machineguns.

3. Why the Guidelines issue did not yield relief (harmlessness)

Elliott contested the district court’s finding that his offense involved 8–24 firearms, and whether earlier firearm possessions constituted relevant conduct. The panel did not need to resolve the factual dispute because it accepted the Government’s alternative harmlessness argument:

• Under Giglio, harmlessness can be established if the district court considered the disputed ranges and made clear it would impose the same sentence either way.
• The panel found the record showed careful consideration of the Guidelines dispute and an explicit statement that the same sentence would be imposed regardless of the enhancement.

4. Why resentencing was required for Counts 1–3 (sentencing package / grouping)

Even though the Guidelines enhancement issue was harmless, reversal of Count 1 had a structural effect on the sentence. The district court grouped Counts 1–3 under U.S.S.G. § 3D1.2(c) and sentenced them concurrently as an integrated unit. Under De Bruhl, when a reversed count is “bundled” with others in a sentencing package, the proper remedy is to vacate and remand for resentencing on the interdependent counts. The panel therefore vacated the sentence for Counts 1–3 and remanded, while affirming the separate consecutive sentence on Count 4 (which Elliott did not challenge).

C. Impact

• Expanded practical reach of Hembree through plain-error doctrine: The decision underscores that defendants may obtain relief on appeal—even under the demanding plain-error standard—when a new, controlling constitutional decision (like Hembree) issues after the district court ruling. The key is Escalante-Reyes: “plainness” is assessed using current law.
• Reinforcement of circuit stability on machineguns: By treating Wilson (and the background principle in Hollis) as dispositive, the opinion signals continued Fifth Circuit resistance to Second Amendment challenges to § 922(o).
• Guidelines litigation: focus on harmlessness record-building: The opinion incentivizes district judges to make clear, reviewable statements about alternative sentences and to demonstrate consideration of competing Guidelines ranges—steps that can render guideline disputes non-outcome-determinative on appeal under Giglio.
• Resentencing breadth after partial reversals: The “sentencing package” approach (via De Bruhl) continues to matter greatly where grouping occurred. Even if only one conviction falls, defendants can obtain a new sentencing hearing on all grouped counts, potentially reshaping the overall punishment and the court’s weighing of 18 U.S.C. § 3553(a) factors.

IV. Complex Concepts Simplified

• Facial vs. as-applied challenge: A facial challenge claims a law is unconstitutional in all (or nearly all) applications. An as-applied challenge claims the law is unconstitutional as used against a particular defendant given their facts (here, the nature of the predicate felony discussed in Hembree).
• Rule 12 timeliness and “good cause”: Motions alleging certain indictment defects must be raised before trial (or before a guilty plea). Filing late requires “good cause.” Without it, appellate review is typically limited to plain error.
• Plain-error review: A stringent appellate standard requiring an obvious legal mistake that likely affected the outcome, plus a showing that correction is needed to protect the integrity of the courts.
• Harmless error (Guidelines context): Even if the Guidelines were calculated incorrectly, the sentence can stand if the appellate court is convinced the mistake did not matter to the final sentence—commonly because the district judge would have imposed the same sentence under the correct range and demonstrated consideration of the dispute.
• Relevant conduct: Under the Guidelines, sentencing can consider conduct beyond the exact offense of conviction if it is sufficiently connected (e.g., part of the same course of conduct or common scheme), which can affect firearm counts and enhancements.
• Grouping and the “sentencing package” doctrine: When multiple counts are grouped and sentenced together as part of a single plan, reversal of one count can require resentencing on the rest because the original sentence was designed as an interdependent package.

V. Conclusion

United States v. Elliott is principally a remedial and procedural application of newer Fifth Circuit constitutional doctrine. Applying United States v. Hembree through United States v. Escalante-Reyes, the panel held that the district court plainly erred in sustaining Elliott’s § 922(g)(1) conviction as applied, requiring reversal of Count 1. It simultaneously reaffirmed that § 922(o) challenges are foreclosed by United States v. Wilson (with doctrinal support from Hollis v. Lynch). On sentencing, the court emphasized the power of harmless-error principles under United States v. Giglio and the breadth of resentencing required by the sentencing-package approach under United States v. De Bruhl when grouped counts include a reversed conviction.