Post-Rahimi Reaffirmation in the Tenth Circuit: § 922(g)(1) Remains Valid Against Nonviolent Felons; Sua Sponte Rulings Preserve Issues for Appeal

Post-Rahimi Reaffirmation in the Tenth Circuit: § 922(g)(1) Remains Valid Against Nonviolent Felons; Sua Sponte Rulings Preserve Issues for Appeal

Introduction

In this consolidated order and judgment, the United States Court of Appeals for the Tenth Circuit reversed district court dismissals of indictments against two defendants, William James Forbis and Daniel Duane Smith, Jr., each charged under 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon. The panel—Judges Tymkovich, Carson, and Federico—decided the cases on the briefs without oral argument and issued a nonprecedential disposition on September 30, 2025.

The opinion’s core significance is twofold:

  • It reaffirms that, in the Tenth Circuit, United States v. McCane (2009) remains binding authority upholding § 922(g)(1) against Second Amendment challenges—even as applied to nonviolent felons—despite New York State Rifle & Pistol Association v. Bruen (2022) and United States v. Rahimi (2024).
  • It clarifies that where a district court itself raises and resolves a legal issue sua sponte (here, the continuing force of McCane), a party’s failure to object does not bar appellate review; the issue is treated as preserved and reviewed under the ordinary standard.

The defendants argued that Bruen’s “history-and-tradition” framework and Rahimi’s elaboration on dangerousness abrogated McCane and rendered § 922(g)(1) unconstitutional as applied to nonviolent offenders. The government countered that Tenth Circuit precedent—most recently, the court’s published decision in Vincent v. Bondi (Vincent III)—forecloses such challenges. The panel agreed with the government and reversed both dismissals.

Summary of the Opinion

  • Jurisdiction and posture: The court exercised jurisdiction under 28 U.S.C. § 1291 to review the district courts’ dismissals of indictments on constitutional grounds.
  • Preservation: In the Forbis appeal, the government’s reliance on McCane was deemed preserved because the district court sua sponte raised and resolved McCane’s applicability, fitting within an established exception to ordinary preservation rules.
  • Standard of review: Dismissals of indictments grounded in constitutional rulings are reviewed de novo.
  • Merits: McCane controls in the Tenth Circuit and is not abrogated by Bruen or Rahimi. Vincent III expressly confirmed that conclusion. Section 922(g)(1) remains constitutional, including as applied to nonviolent felons, so the district courts erred in dismissing the indictments.
  • Disposition: The panel reversed and remanded for further proceedings consistent with its opinion. Both defendants conceded that Vincent III requires reversal.

Factual and Procedural Background

Forbis

A grand jury indicted Forbis under § 922(g)(1) based on prior nonviolent drug felonies. Relying on Bruen, he moved to dismiss; the district court granted the motion, concluding Bruen abrogated McCane and rendered § 922(g)(1) unconstitutional as applied to him. After the Tenth Circuit decided Vincent v. Garland (Vincent I), holding that Bruen did not abrogate McCane, the government moved for reconsideration. The district court reinstated the indictment and Forbis entered a guilty plea. Before sentencing, the Supreme Court decided Rahimi and then granted, vacated, and remanded Vincent I (Vincent II). With Vincent I vacated, the district court believed McCane no longer controlled. At sentencing, after an off-the-record in chambers discussion, the court invited a renewed motion to dismiss, granted it, and dismissed the indictment as unconstitutional as applied. The government appealed.

Smith

A grand jury indicted Smith under § 922(g)(1) based on nonviolent drug offenses, fraud, and a prior felon-in-possession conviction. After Vincent II (vacating Vincent I), he moved to dismiss, arguing Bruen and Rahimi abrogated McCane. The district court agreed and dismissed. The government appealed.

Analysis

Precedents and Authorities Cited

  • United States v. McCane, 573 F.3d 1037 (10th Cir. 2009): Upheld § 922(g)(1) against Second Amendment challenge; foundational circuit precedent binding future panels unless abrogated or overruled en banc.
  • District of Columbia v. Heller, 554 U.S. 570 (2008): Recognized an individual right to keep and bear arms while noting the “presumptive lawfulness” of longstanding prohibitions on felon firearm possession; the Tenth Circuit reads this as consistent with McCane.
  • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Adopted the “text, then history and tradition” test for Second Amendment challenges. Vincent I held Bruen did not “indisputably” or “pellucidly” abrogate McCane.
  • United States v. Rahimi, 602 U.S. 680 (2024): Applied Bruen’s method to § 922(g)(8) and upheld disarmament of individuals judicially found to pose a credible threat; reaffirmed the presumptive lawfulness of felon-in-possession prohibitions.
  • Vincent v. Garland (Vincent I), 80 F.4th 1197 (10th Cir. 2023): Held Bruen did not abrogate McCane; later vacated on GVR in light of Rahimi (Vincent II).
  • Vincent v. Garland (Vincent II), 144 S. Ct. 2708 (2024): Supreme Court granted certiorari, vacated Vincent I, and remanded for reconsideration in light of Rahimi.
  • Vincent v. Bondi (Vincent III), 127 F.4th 1263 (10th Cir. 2025), petition for cert. filed, No. 24-1155: On remand, the Tenth Circuit held Rahimi did not abrogate McCane and reiterated that § 922(g)(1) applies to nonviolent offenders.
  • Preservation/standard-of-review authorities: Singleton v. Wulff, 428 U.S. 106 (1976); Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144 (10th Cir. 2012); United States v. Todd, 446 F.3d 1062 (10th Cir. 2006); United States v. Hernandez-Rodriguez, 352 F.3d 1325 (10th Cir. 2003); United States v. Guinn, 89 F.4th 838 (10th Cir. 2023); United States v. Chavarria, 140 F.4th 1257 (10th Cir. 2025); United States v. Doe, 58 F.4th 1148 (10th Cir. 2023).
  • Other circuits’ contemporary treatments of § 922(g)(1):
    • Upholding constitutionality, relying on pre-Bruen precedent: United States v. Hunt, 123 F.4th 697 (4th Cir. 2024); United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024); United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc); United States v. Dubois, 139 F.4th 887 (11th Cir. 2025).
    • Not bound by pre-Bruen precedent but still upholding as applied to some defendants: United States v. Diaz, 116 F.4th 458 (5th Cir. 2024); United States v. Williams, 113 F.4th 637 (6th Cir. 2024).
    • As-applied unconstitutionality: Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (en banc).
  • Jurisdictional authority: 28 U.S.C. § 1291.

Legal Reasoning

1) Binding force of circuit precedent and the abrogation standard

The Tenth Circuit follows a robust intra-circuit stare decisis rule: a published panel decision (here, McCane) binds later panels unless the Supreme Court or the en banc circuit “indisputably and pellucidly” undermines it. Vincent I and Vincent III articulate this abrogation threshold. Applying that rule, the panel concludes neither Bruen nor Rahimi meets the standard for implied abrogation of McCane.

Key to that conclusion is both Bruen’s invocation of Heller and Rahimi’s express recognition of the “presumptive lawfulness” of bans on felon possession. Thus, although Bruen supplies a historical-analogy methodology and Rahimi elaborates on dangerousness in the restraining order context (§ 922(g)(8)), neither case “indisputably” displaces McCane’s holding sustaining § 922(g)(1).

2) Application to as-applied challenges by nonviolent felons

McCane did not distinguish between violent and nonviolent felonies. Vincent III explicitly reaffirmed this point and held that “the Second Amendment doesn’t prevent application of § 922(g)(1) to nonviolent offenders.” The panel accordingly treats the defendants’ nonviolence-based as-applied arguments as foreclosed.

The district courts had read Bruen and Rahimi to require an individualized dangerousness assessment before disarmament, particularly for those with nonviolent predicate offenses. The panel rejects that inference as inconsistent with McCane and Vincent III, which cabin Rahimi to its context and emphasize its reinforcement—not repudiation—of Heller’s felon-in-possession carveout.

3) Preservation and standard of review

The court addresses a threshold procedural matter in Forbis’s case: whether the government preserved its McCane argument. Ordinarily, issues not presented below are forfeited. But the Tenth Circuit recognizes a preservation exception where a district court sua sponte raises and decides a legal issue; a party may then challenge that ruling on appeal without having first objected. Citing Todd, Hernandez-Rodriguez, and Guinn, the panel applies that exception here because the district court itself raised McCane’s supposed abrogation at sentencing, invited a motion to dismiss, and ruled on the issue.

Given the constitutional nature of the dismissals, the court conducts de novo review (Doe), notwithstanding the usual abuse-of-discretion standard for indictment dismissals (Chavarria).

4) The effect of the Vincent GVR and intervening circuit precedent

The district courts acted after the Supreme Court granted, vacated, and remanded Vincent I (Vincent II), leaving an open question about McCane’s viability. While these appeals were pending, the Tenth Circuit decided Vincent III, holding that Rahimi did not abrogate McCane. The panel applies Vincent III and reverses. Although the present order is nonprecedential, its result is determined by published, binding circuit authority (McCane and Vincent III).

Impact and Implications

Within the Tenth Circuit

  • Felon-in-possession prosecutions: District courts must deny Second Amendment challenges to § 922(g)(1), including as-applied challenges by nonviolent felons, unless and until McCane is overruled en banc or by the Supreme Court.
  • Bruen/Rahimi framework: While district courts elsewhere may engage in historical analogizing under Bruen, Tenth Circuit courts remain bound by McCane’s categorical approval of § 922(g)(1). They need not conduct a fresh Bruen analysis where binding precedent controls.
  • Preservation practice: Counsel should always preserve arguments, but this decision reinforces that when a district judge sua sponte raises and decides a legal issue, the absence of an objection will not bar appellate review.
  • Plea and sentencing timing: Where district courts rely on intervening Supreme Court signals (such as a GVR) to deviate from circuit precedent, subsequent circuit clarification—like Vincent III—can require reinstatement of indictments or pleas; practitioners should anticipate such reversals.

Across the circuits

  • Circuit landscape: The Tenth Circuit aligns with the Fourth, Eighth, Ninth (en banc), and Eleventh Circuits in upholding § 922(g)(1) amid post-Bruen litigation. The Fifth and Sixth have upheld the statute in at least some as-applied contexts without relying entirely on pre-Bruen precedent. The Third Circuit’s en banc decision in Range represents an outlier permitting an as-applied challenge in circumstances involving a nonviolent, decades-old disqualifying offense.
  • Potential Supreme Court review: A petition for certiorari is pending in Vincent III (No. 24-1155). If the Supreme Court grants review, it may address whether and how Bruen’s historical analysis affects felon disarmament statutes, including whether nonviolent felonies necessitate individualized dangerousness findings. Until then, McCane controls within the Tenth Circuit.

Complex Concepts Simplified

  • As-applied versus facial challenge: A facial challenge attacks a law in all applications; an as-applied challenge argues the law is unconstitutional for this particular person or circumstance. Forbis and Smith brought as-applied challenges based on their nonviolent felonies; the Tenth Circuit holds those are foreclosed by McCane.
  • Abrogation by higher court: A circuit panel treats its own precedent as overruled only if a later Supreme Court decision “indisputably and pellucidly” contradicts it. If not, the prior circuit decision continues to bind.
  • GVR (Grant, Vacate, Remand): The Supreme Court sometimes grants certiorari, vacates a lower court’s judgment, and remands for reconsideration in light of a new decision. Vincent I was GVR’d after Rahimi; on remand, Vincent III reaffirmed McCane.
  • Sua sponte: A court acts “sua sponte” when it raises an issue on its own without a party requesting it. If a district court raises and decides an issue sua sponte, appellate courts in the Tenth Circuit will treat that issue as preserved for review.
  • Standard of review: Constitutional rulings are reviewed de novo—no deference. Dismissals of indictments for non-constitutional reasons are reviewed for abuse of discretion.
  • Presumptively lawful regulations: Heller described certain longstanding gun regulations, like felon-in-possession bans, as “presumptively lawful,” a point Bruen and Rahimi did not displace and which the Tenth Circuit reads as compatible with McCane.
  • Bruen’s methodology: Courts first ask whether the Second Amendment’s text covers the conduct. If so, the government must show the regulation fits within the nation’s historical tradition of firearm regulation. In the Tenth Circuit, this analysis is unnecessary for § 922(g)(1) because McCane remains controlling.

Conclusion

United States v. Smith underscores that in the Tenth Circuit, § 922(g)(1) remains constitutional after Bruen and Rahimi, including as applied to nonviolent felons. The panel’s reliance on McCane and Vincent III makes clear that district courts are not free to treat Rahimi as having abrogated the longstanding felon-in-possession rule. Equally important procedurally, the decision reaffirms that when a district court sua sponte raises and resolves a dispositive legal question, appellate review proceeds as if the issue had been preserved.

While the opinion itself is nonprecedential, its holdings are anchored in binding circuit law and provide practical guidance: defendants cannot prevail on Second Amendment challenges to § 922(g)(1) in the Tenth Circuit based solely on the nonviolent nature of predicate felonies; and parties should be aware that sua sponte district court rulings do not insulate such decisions from de novo appellate scrutiny. With a certiorari petition pending in Vincent III, broader national resolution may be forthcoming, but for now the Tenth Circuit’s rule is settled.

Procedural Notes:

  • Decided without oral argument per Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
  • Nonprecedential order and judgment, citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, and binding only under law-of-the-case, res judicata, and collateral estoppel.
  • Both defendants conceded that Vincent III requires reversal.

Case Details

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

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