Pretrial Diversion Is No Categorical Shield from Felon Disarmament Under the Second Amendment

1. Introduction

The Sixth Circuit considered whether the Second Amendment barred applying the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), to a defendant whose predicate convictions had resulted in placement in Kentucky’s pretrial diversion program. Dalonta Crudup argued that his eligibility for diversion, together with the nonviolent character of his criminal record, established that he was not sufficiently dangerous to lose his firearm rights.

The court rejected both arguments. Diversion eligibility did not categorically establish nondangerousness, and Crudup’s prior possession of firearms in furtherance of unlawful marijuana possession supported an individualized finding of dangerousness.

The central principle is that a state’s decision to offer diversion does not replace the federal constitutional inquiry into an individual’s dangerousness. The decision also distinguishes ordinary marijuana use from firearm possession that furthers an unlawful drug offense. Because the opinion is unpublished, its significance lies principally in its application and clarification of existing Sixth Circuit doctrine, rather than the creation of binding circuit precedent.

2. Background and Procedural History

The prior offenses and diversion agreement

In November 2021, Crudup and others possessed marijuana, codeine, drug paraphernalia, and several firearms in a vehicle in Hardin County, Kentucky. In October 2022, Crudup was convicted of marijuana possession enhanced by firearm possession and second-degree criminal possession of a forged instrument. Both were Class D felonies.

Crudup entered Kentucky’s pretrial diversion program. Successful completion would have resulted in the charges being designated dismissed-diverted and becoming eligible for expungement. His diversion conditions prohibited access to firearms, handguns, or other deadly weapons for two years.

A separate January 2022 incident in Washington, D.C., resulted in a misdemeanor conviction for carrying a pistol without a license outside the home or business. The unobjected-to presentence report described officers recovering a pistol, ammunition, and suspected marijuana. The appellate court recounted this incident in a footnote but did not make it the central basis of its analysis.

The federal prosecution

On February 24, 2024, surveillance footage recorded Crudup and others purchasing firearms at a Louisville gun show. Officers subsequently stopped their vehicle and recovered a shotgun, two pistols, and ammunition associated with Crudup.

A federal grand jury charged him under § 922(g)(1), which generally prohibits firearm or ammunition possession by someone convicted of a crime punishable by more than one year’s imprisonment. Crudup moved to dismiss, arguing that the statute violated the Second Amendment as applied to him because he was not dangerous.

The district court rejected the challenge. It concluded that his firearm-related drug conduct supported dangerousness and noted that the new firearm possession violated his diversion conditions. Kentucky later voided the diversion on April 29, 2024.

Crudup then pleaded guilty under Federal Rule of Criminal Procedure 11(c)(1)(C), preserving his right to appeal the constitutional ruling and agreeing to a sentence of no more than 33 months. The district court imposed 33 months’ imprisonment and three years of supervised release. The appeal concerned the denial of his motion to dismiss, not an independent challenge to the sentence.

3. Summary of the Opinion

Reviewing the constitutional determination de novo, the Sixth Circuit affirmed for three principal reasons:

1. Diversion does not conclusively establish nondangerousness. Kentucky’s eligibility rules overlap only partly with the constitutional inquiry and permit diversion for some offenses strongly indicative of danger.
2. Crudup’s underlying conduct supported disarmament. His marijuana conviction included an enhancement for possessing a firearm during and in furtherance of the offense. The court regarded that relationship between firearms and unlawful drug possession as dangerous.
3. More serious cases do not establish a minimum threshold. Other defendants’ more extensive records or more overtly dangerous conduct did not demonstrate that Crudup himself was constitutionally entitled to possess firearms.

The parties agreed that the forged-instrument conviction had no bearing on dangerousness. The operative analysis therefore concentrated on the firearm-enhanced drug offense and the limits of Crudup’s diversion argument.

4. Precedents Cited and Their Influence

A. The constitutional framework

District of Columbia v. Heller, 554 U.S. 570 (2008)

District of Columbia v. Heller supplies the foundational propositions that the Second Amendment protects a pre-existing individual right and that the right is not unlimited. Those propositions frame the dispute: Crudup invoked an individual constitutional protection, but that protection did not automatically invalidate a firearm restriction applied to a dangerous person. The panel did not treat Heller as independently resolving Crudup’s circumstances.

New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022)

New York State Rifle & Pistol Ass'n, Inc. v. Bruen provides the historical-tradition standard governing firearm regulation. The panel invoked that framework through circuit precedent rather than undertaking a fresh historical survey. Its analysis therefore focused on whether Crudup fell within the class of dangerous individuals whom existing Sixth Circuit doctrine permits the government to disarm.

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

This was the controlling doctrinal foundation. United States v. Williams permits legislatures to disarm groups believed to be dangerous, including felons, provided individual members have an opportunity to show that they are not actually dangerous. Under that framework, the defendant bears the burden of establishing nondangerousness in an as-applied challenge.

Williams also requires a fact-specific assessment of the defendant’s unique circumstances. Courts may examine the entire criminal record and the manner in which offenses were committed, rather than relying exclusively on conviction labels.

Its illustrative categories structure the inquiry: crimes against persons strongly indicate danger; some offenses without direct interpersonal violence nevertheless endanger others; and other crimes may cause no physical harm and reveal little about dangerousness. These are guideposts, not substitutes for individualized analysis.

United States v. Morton, 123 F.4th 492 (6th Cir. 2024)

United States v. Morton establishes de novo review of the as-applied constitutional ruling and reinforces the historical-tradition framework. It also supports examining the defendant’s broader criminal record and the conduct underlying prior offenses. That approach allowed the panel to consider Crudup’s admitted firearm-and-drug conduct rather than treating “marijuana possession” as a complete description of the relevant offense.

United States v. Williams, No. 24-1409, 2025 WL 1136326 (6th Cir. Apr. 17, 2025)

This separate decision, bearing the same case title, identifies fleeing and evading arrest as conduct that can establish dangerousness despite not necessarily involving a direct violent attack. Its role was illustrative: it reinforced the distinction between an offense formally classified as violent and conduct that creates a substantial safety risk. Crudup’s absence of a conventional violent conviction therefore did not resolve his challenge.

United States v. Hostettler, 170 F.4th 539 (6th Cir. 2026)

United States v. Hostettler emphasizes that the dangerousness inquiry cannot be categorical. The panel applied that principle against Crudup’s claim that all diversion-eligible defendants should be considered nondangerous. The requirement of individual assessment limits categorical reasoning in both directions: felony status does not foreclose a challenge, but diversion status does not guarantee its success.

B. Kentucky diversion and conviction status

Commonwealth v. Derringer, 386 S.W.3d 123 (Ky. 2012)

Commonwealth v. Derringer establishes that, under Kentucky law, a defendant becomes a convicted felon upon pleading guilty and remains one until successfully completing diversion. This answered an important threshold question: Crudup’s participation in a program offering eventual dismissal did not mean he lacked felony status when he possessed the firearms.

Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003)

Flynt v. Commonwealth supports the proposition that diversion placement requires agreement by both the prosecutor and the circuit court. The panel acknowledged the program’s screening requirements, but did not equate those institutional approvals with a determination of nondangerousness under the Second Amendment. Approval for a rehabilitative disposition and constitutional eligibility to possess firearms address different questions.

C. Firearms, drugs, and dangerousness

Smith v. United States, 508 U.S. 223 (1993)

The panel relied on Smith v. United States for the observation that “drugs and guns are a dangerous combination.” Crudup correctly noted that Smith involved drug trafficking rather than simple possession. The court nevertheless concluded that the observation was not confined to trafficking, particularly where a firearm furthered the underlying drug offense.

Importantly, Smith did not itself supply the governing Second Amendment test. It supported the panel’s assessment of the risks associated with the conduct established in Crudup’s prior case.

United States v. Suggs, No. 24-2059, 2025 WL 2978046 (6th Cir. Oct. 22, 2025)

United States v. Suggs involved a loaded firearm and methamphetamine found in a vehicle. It demonstrated that the Sixth Circuit had applied the drugs-and-guns rationale outside the trafficking context. The panel expressly recognized the unpublished character of this supporting authority.

United States v. White, No. 24-2064, 2025 WL 2060869 (6th Cir. July 23, 2025)

United States v. White considered simultaneous possession of a loaded pistol, a scale, and several bags of marijuana as part of a dangerousness assessment. It therefore supported considering firearm-and-drug conduct together.

The case also supplied a rejected comparison. Although the defendant in White had numerous convictions, probation violations, and possession of a stolen firearm linked to a shooting, those facts did not establish the least serious record capable of supporting disarmament. Crudup could be less dangerous than that defendant without proving that he was not dangerous.

United States v. Hemani, 146 S. Ct. 1677 (2026)

United States v. Hemani supplies the principal limiting distinction. As described in the opinion, the Supreme Court rejected the proposition that regular marijuana use categorically establishes violence and dangerousness and held that the government had not justified automatic disarmament of unlawful controlled-substance users through historical evidence.

The panel distinguished that categorical restriction from Crudup’s individualized record. Its decision rested on firearm possession in furtherance of unlawful drug possession, not on marijuana use alone. That distinction confines the opinion’s reach: it does not establish that every marijuana user who possesses a firearm is necessarily dangerous.

United States v. VanOchten, 150 F.4th 552 (6th Cir. 2025)

In United States v. VanOchten, the defendant fired a rifle in a residential neighborhood toward a propane tank while intoxicated. Crudup used that more alarming conduct as a comparison. The panel rejected the inference that only similarly extreme behavior permits disarmament. A case finding sufficient evidence of dangerousness does not necessarily establish a minimum evidentiary threshold for every later case.

5. Analysis of the Court’s Legal Reasoning

A. Diversion status and dangerousness are distinct questions

Kentucky restricts diversion eligibility by felony classification, recent criminal history, offense type, and prior participation. These restrictions gave Crudup a plausible argument that admission reflected favorable judgments about his background. The panel acknowledged that some eligibility criteria were relevant evidence.

But relevant evidence is not conclusive evidence. Certain Class D offenses potentially eligible for diversion—including third-degree assault, second-degree strangulation, and first-degree wanton endangerment—can strongly indicate dangerousness. Eligibility therefore does not reliably separate dangerous individuals from nondangerous ones.

The reasoning preserves a distinction between eligibility for rehabilitation and constitutional entitlement to possess firearms. A state may offer a defendant an opportunity to avoid lasting conviction consequences without determining that firearm possession presents no unacceptable danger.

B. The firearm enhancement supplied the critical connection

The decisive feature of Crudup’s marijuana conviction was not simply that drugs and firearms appeared in the same factual narrative. The enhancement applied because firearm possession occurred during and in furtherance of the drug offense.

The panel considered that connection capable of creating danger and increasing the risk of violent confrontation with police or other individuals. Accordingly, actual injury, discharge of a weapon, or a prior conviction conventionally labeled “violent” was unnecessary.

This is also the principal answer to the concern raised by United States v. Hemani. A generalized assumption about marijuana users would be categorical; an assessment grounded in an admitted, firearm-facilitated offense is individualized. Future courts should preserve that distinction rather than treating mere drug use as equivalent to the conduct here.

C. Individualized review does not require comparison with the worst cases

Crudup’s comparisons with United States v. White and United States v. VanOchten confused relative seriousness with the governing constitutional question. The issue was not whether other offenders were more dangerous, but whether Crudup had demonstrated that he was not dangerous under the circuit’s framework.

The court’s response leaves the dangerousness standard qualitative rather than numerical. It does not specify a required number of convictions, an indispensable history of violence, or a fixed period of misconduct.

D. The evidentiary holding is limited

The panel relied on facts Crudup admitted during his earlier guilty plea. Although he objected to consideration of an arresting officer’s Uniform Citation, the court expressly declined to rely on that document. It therefore left unresolved the proper role of police reports in this constitutional inquiry.

That reservation is significant. Permission to examine an entire criminal record does not itself resolve the reliability or permissible use of every allegation contained in it. Nor should the opinion’s footnoted discussion of the Washington, D.C., incident be mistaken for a separate holding that an unlicensed-carry misdemeanor automatically establishes dangerousness.

6. Potential Impact and Limits

• Diversion participants remain subject to individualized review. Admission to a state program may support a defendant’s argument, but does not automatically defeat § 922(g)(1).
• Underlying conduct matters more than shorthand labels. Calling a conviction “nonviolent” or “marijuana possession” may omit facts material to dangerousness.
• Firearm-facilitated drug possession can support disarmament. The opinion’s reasoning extends beyond trafficking, while retaining an important distinction from mere drug use.
• The defense remains available. The panel did not hold that every felony conviction or every diversion participant justifies permanent disarmament.
• Several questions remain open. The opinion does not resolve reliance on disputed police reports, establish a universal minimum showing of dangerousness, or decide a claim following successful completion of diversion and expungement.

As an unpublished disposition, the opinion is best understood as persuasive guidance on applying the circuit’s existing framework. It illustrates which facts mattered here without converting those facts into a comprehensive rule for every firearm-and-drug case.

7. Complex Concepts Simplified

As-applied challenge

A claim that a law is unconstitutional when used against a particular person in particular circumstances, rather than invalid in all its applications.

De novo review

The appellate court independently decides the legal question without deferring to the district court’s constitutional conclusion.

Predicate conviction

The earlier conviction that supplies the qualifying status for a later offense—here, the felony status underlying the firearm-possession charge.

Pretrial diversion

A conditional opportunity to obtain dismissal by satisfying program requirements. In this Kentucky program, Crudup pleaded guilty first, and diversion did not immediately erase his convicted-felon status.

In furtherance of an offense

A connection in which firearm possession advances or facilitates the offense, rather than merely occurring nearby.

Dangerousness

A fact-specific assessment of safety risk. It can encompass conduct that risks violence even without an actual attack or injury.

Burden of showing nondangerousness

Under the Sixth Circuit framework applied here, the defendant seeking an individualized exception must demonstrate that he is not dangerous. That allocation concerns this particular route of challenge, not every Second Amendment question.

8. Conclusion

United States v. Dalonta Crudup confirms that Kentucky diversion eligibility does not categorically establish a constitutional right to possess firearms. Applying existing Sixth Circuit precedent, the court held that Crudup failed to demonstrate nondangerousness because his prior offense involved firearm possession in furtherance of unlawful marijuana possession.

The opinion’s broader significance is its insistence on individualized analysis: neither a favorable diversion decision nor a “nonviolent” offense label is dispositive. Equally, the holding should not be expanded into automatic disarmament based on marijuana use alone.