Record-Based Dangerousness Controls As-Applied Bruen Challenges; Issue Treated as Preserved Despite Counsel’s Refusal to File Motion

Introduction

In United States v. Marquis Henson, No. 24-3494 (6th Cir. Apr. 3, 2025) (not recommended for publication), the Sixth Circuit affirmed a felon-in-possession conviction under 18 U.S.C. § 922(g)(1). Writing for a panel that included Judges Gibbons and Murphy, Judge Karen Nelson Moore rejected two principal arguments: (1) that Henson’s guilty plea was involuntary due to ineffective assistance of counsel, and (2) that § 922(g)(1) is unconstitutional as applied to him under the Second Amendment framework articulated in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi.

The decision is notable for three reasons:

• It applies the Sixth Circuit’s post-Bruen decision in United States v. Williams to hold that a defendant’s prior violent offenses (here, two assault convictions) suffice to establish “dangerousness,” defeating an as-applied Second Amendment challenge without remand for an individualized hearing.
• It treats a Bruen challenge as preserved—not forfeited—even though defense counsel refused to file the motion and the district court summarily agreed the challenge would be meritless, because the issue was aired on the record.
• It reinforces that an adequate Rule 11 colloquy will sustain the voluntariness of a guilty plea notwithstanding a defendant’s expressed dissatisfaction with counsel; ineffective-assistance claims premised on undeveloped facts remain for collateral review under 28 U.S.C. § 2255.

Case Background

As part of an ATF investigation into illicit firearm activity, a confidential informant arranged a controlled purchase from Henson. In July 2023, Henson sold a loaded Rossi revolver for $300 to an undercover agent at his home. A federal grand jury charged him with one count of possessing a firearm as a convicted felon, in violation of § 922(g)(1) and § 924(a)(8).

Henson had a lengthy record, including a Florida felony for burglary of an unoccupied conveyance (stealing a lawnmower from the back of a truck) and two separate assault convictions (Maryland, 2017; Washington, D.C., 2014, involving a punch to the side of a victim’s head), along with other offenses such as disorderly conduct, resisting arrest, theft, and obstructing justice.

Henson initially pleaded not guilty, then entered a plea agreement containing a broad appellate waiver while preserving ineffective-assistance and prosecutorial-misconduct claims. At the change-of-plea hearing, he openly complained about counsel’s performance and stated he wanted to bring a Bruen challenge; counsel refused, calling it frivolous, and the district court agreed. After an extensive Rule 11 colloquy, the district court accepted the plea and later imposed an 18-month within-Guidelines sentence (range: 15–21 months) and three years of supervised release. Henson appealed.

Summary of the Opinion

• Plea validity: Applying plain-error review, the court held the plea was knowing, intelligent, and voluntary. The district court provided a comprehensive Rule 11 colloquy, and Henson repeatedly affirmed he wished to proceed.
• Ineffective assistance: The claim was not addressed on the merits because the record was undeveloped; the court left it for § 2255 collateral review consistent with Massaro v. United States.
• As-applied Bruen challenge: The court treated the issue as sufficiently raised below, declined to rely on waiver, and rejected the challenge de novo on the merits under Williams. Considering Henson’s entire criminal record, especially two assault convictions, the court deemed him “dangerous,” making § 922(g)(1) constitutional as applied. No remand was necessary because the record made the dangerousness showing indisputable.

Analysis

Precedents Cited and Their Influence

• Plea validity and standards of review:
  • Brady v. United States, 397 U.S. 742 (1970): A guilty plea is valid if entered knowingly, voluntarily, and intelligently considering all circumstances.
  • United States v. Webb, 403 F.3d 373 (6th Cir. 2005); United States v. Catchings, 708 F.3d 710 (6th Cir. 2013); United States v. Dixon, 479 F.3d 431 (6th Cir. 2007); United States v. Martin, 668 F.3d 787 (6th Cir. 2012): Together, these decisions frame Rule 11 compliance, standards (de novo for legal validity; clear error for facts), and plain error when there is no contemporaneous objection.
• Ineffective assistance procedure:
  • Massaro v. United States, 538 U.S. 500 (2003): IAC claims generally should be raised on § 2255 because direct-appeal records are rarely adequate.
  • United States v. Ferguson, 669 F.3d 756 (6th Cir. 2012): IAC presents mixed questions; reviewed de novo.
  • United States v. Burrell, 114 F.4th 537 (6th Cir. 2024); United States v. Robinson, 732 F. App’x 405 (6th Cir. 2018); United States v. Bradley, 400 F.3d 459 (6th Cir. 2005): Sixth Circuit practice is to defer IAC to collateral review unless ineffectiveness is apparent from the record.
• Appellate timing and forfeiture:
  • United States v. Payton, 979 F.3d 388 (6th Cir. 2020): Rule 4(b)(1)(A)’s criminal notice-of-appeal deadline is a claims-processing rule that the government can waive. The government did so here, permitting merits review despite untimeliness.
  • United States v. Ramamoorthy, 949 F.3d 955 (6th Cir. 2020); United States v. Olano, 507 U.S. 725 (1993): Plain-error review for forfeited claims is permissive, not mandatory.
• Second Amendment framework:
  • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Firearms regulations must align with the Nation’s history and tradition of firearm regulation.
  • United States v. Rahimi, 602 U.S. 680 (2024): Reiterates the history-and-tradition approach and frames the inquiry as consistency with the principles underpinning our regulatory tradition.
• Sixth Circuit’s controlling approach to § 922(g)(1):
  • United States v. Williams, 113 F.4th 637 (6th Cir. 2024): § 922(g)(1) is constitutional on its face and as applied to dangerous people; allows as-applied challenges where a defendant makes an individualized showing that he is not dangerous. Courts may consider the entire criminal record; violent crimes strongly evidence dangerousness.
  • United States v. Gailes, 118 F.4th 822 (6th Cir. 2024): De novo review applies to constitutional challenges to § 922(g)(1).
  • United States v. Morton, 123 F.4th 492 (6th Cir. 2024); United States v. Fordham, No. 24-1491, 2025 WL 318229 (6th Cir. Jan. 28, 2025): No remand is necessary for a Williams dangerousness hearing when the record already demonstrates violent offenses making dangerousness clear.

Legal Reasoning

1. Plea validity under Rule 11 and plain-error review:

   Henson did not object to the Rule 11 colloquy, so plain-error review applied. The district court paused to probe Henson’s complaints about counsel—discovery sharing, number of meetings, and his desire for a Bruen motion—before returning to a meticulous Rule 11 inquiry. The court confirmed Henson’s understanding of rights, elements, penalties, and waiver terms; Henson repeatedly affirmed his wish to proceed and the voluntariness of his plea. Given these unambiguous assurances, the panel held that Henson entered a knowing, intelligent, and voluntary plea; no plain error occurred.

2. Ineffective assistance reserved for § 2255:

   Because Henson’s claims turn on facts not developed (what discovery was requested or shared, what investigation was undertaken, pre-plea consultation, and the merits analysis of a Bruen motion), the record was inadequate for direct review. Following Massaro and the Sixth Circuit’s consistent practice, the panel deferred the ineffective-assistance claim to collateral review unless apparent from the record (it was not).

3. Preservation and standard of review for the Bruen challenge:

   Although defense counsel declined to file the Bruen motion as frivolous and the district court appeared to agree summarily, counsel expressly informed the court that Henson wished to pursue such a challenge. Because the exchange occurred on the record and the court effectively rejected the position, the panel treated the issue as raised below. The court nevertheless bypassed waiver arguments in the plea agreement and proceeded to resolve the Second Amendment issue on the merits, de novo.

4. Applying Williams: dangerousness resolves the as-applied challenge:

   Williams permits as-applied challenges only if a defendant makes an individualized showing that he is not dangerous. The assessment is holistic and may include the “entire criminal record,” with violent conduct serving as “strong evidence” of dangerousness. While Henson argued his disqualifying Florida burglary was nonviolent, the panel emphasized his two assault convictions—including an incident involving a punch to the head—as crimes “against the body of another human being.” That violent history sufficed to place him within the class that Congress may lawfully disarm. The court therefore rejected the as-applied challenge.

   Importantly, the panel declined to remand for a Williams dangerousness hearing. As in Morton and Fordham, the record here made the dangerousness determination indisputable; a remand would not change the outcome.

Impact and Practical Significance

• As-applied Second Amendment challenges post-Williams:
  • Violent convictions—even older ones and even if the qualifying felony is nonviolent—are likely dispositive against defendants attempting to show they are not “dangerous.”
  • Defendants with any history of crimes “against the person” face steep odds. The panel’s reliance on two assault convictions underscores that offenses involving bodily harm—or risk thereof—will typically defeat Bruen-based as-applied challenges under Williams.
  • Where the record already reflects violent priors, the Sixth Circuit may resolve dangerousness without remanding for further factual development.
• Preservation through on-the-record discussion:
  • The court treated the Bruen issue as preserved because counsel disclosed the client’s desire to litigate it and the district court addressed it on the record, even if summarily. Practitioners should ensure such issues are clearly articulated at hearings if counsel declines to file a motion.
• Plea practice and appellate waivers:
  • Robust Rule 11 colloquies will withstand later claims of involuntariness premised on generalized dissatisfaction, especially where the court pauses to explore concerns and the defendant then affirms voluntariness.
  • Broad appeal waivers remain potent, but panels may sidestep waiver questions to deny constitutional claims on the merits when the outcome is clear.
• Ineffective assistance sequencing:
  • Claims about case investigation, advice, and strategic choices (e.g., refusing to file a Bruen motion) commonly require factual development and are best raised under § 2255.
• Appellate timing:
  • Untimely criminal appeals can still be heard when the government waives the timeliness objection, because the deadline is a claims-processing rule.
• Nonprecedential but instructive:
  • Though not recommended for publication, the opinion tracks and applies published circuit law (Williams, Morton, Gailes) and thus offers a clear roadmap for similar cases.

Complex Concepts Simplified

• As-applied vs. facial challenge:
  • Facial: the law is always unconstitutional in all its applications.
  • As-applied: the law is unconstitutional in the particular defendant’s circumstances. Under Williams, a § 922(g)(1) defendant must show he personally is not “dangerous.”
• Dangerousness under Williams:
  • No bright-line rule; courts examine the whole record.
  • Violent crimes—especially those against persons—are strong indicators of dangerousness. Multiple assaults weigh heavily against the defendant.
• Rule 11 plea colloquy:
  • The court ensures a defendant understands rights, charges, penalties, and consequences of pleading guilty, and that the plea is voluntary.
  • Affirmations made during the colloquy carry substantial weight on appeal.
• Waiver vs. forfeiture:
  • Waiver: intentional relinquishment of a known right (e.g., appeal waivers in plea agreements).
  • Forfeiture: failing to raise an issue in time. Forfeited issues may be reviewed for plain error; here, the court treated the Bruen issue as preserved because it was aired on the record.
• Claims-processing rule:
  • A procedural rule that governs how courts process cases; unlike jurisdictional rules, it can be waived (e.g., the 14-day criminal appeal deadline under Rule 4(b)).
• Ineffective assistance on direct appeal vs. § 2255:
  • Direct appeal: limited to the trial record; poor fit for IAC claims that need more facts.
  • Section 2255: allows development of evidence (e.g., affidavits, hearings) regarding counsel’s performance and prejudice.

Conclusion

United States v. Henson reinforces the Sixth Circuit’s Williams framework for as-applied challenges to § 922(g)(1) in the Bruen era: a defendant’s ability to prevail turns on proving non-dangerousness, with the entire criminal record fair game. Prior violent convictions—especially assaults—are powerful evidence of dangerousness, often obviating the need for remand. The opinion also underscores that thorough Rule 11 colloquies will sustain the voluntariness of a plea even when a defendant voices dissatisfaction with counsel, and that undeveloped ineffective-assistance claims belong in § 2255 proceedings. Finally, when a defendant’s desire to raise a constitutional issue is aired on the record and the court effectively rules on it, the Sixth Circuit may deem the claim preserved and reach the merits.

Although unpublished, Henson provides a practical guide for litigants: defendants seeking as-applied relief must build a record demonstrating law-abiding, nonviolent histories; counsel should ensure on-the-record preservation of disputed constitutional issues; and district courts can confidently rely on the existing record to resolve Williams dangerousness where violent priors are undisputed.