Sixth Circuit: No “Good Cause” to Excuse Failure to Raise Bruen-Based Second Amendment Claims; Plain-Error Review Dooms Unpreserved Challenges to § 922(g)(1) and § 924(c)

Introduction

In United States v. Marquis Lamonz Wellington (No. 24-3151, decided December 4, 2024), a Sixth Circuit panel (Judges Moore, Clay, and Thapar; opinion by Judge Thapar) affirmed two firearm-related convictions entered after a guilty plea: felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i). The case arose from a search of Wellington’s home that uncovered four loaded firearms, ammunition, fentanyl, and methamphetamine, following an investigation into gang ties and drug trafficking.

On appeal, Wellington for the first time argued that both statutes, as applied to him and (as to § 922(g)(1)) on their face, violate the Second Amendment under the text-and-history methodology announced in New York State Rifle & Pistol Association v. Bruen. The key issues were procedural and substantive:

Whether unpreserved Second Amendment challenges are reviewed de novo or under the stringent plain-error standard.
Whether, after Bruen, § 922(g)(1) is unconstitutional either on its face or as applied to Wellington.
Whether § 924(c) violates the Second Amendment and, at minimum, whether the district court plainly erred by not sua sponte dismissing the § 924(c) count.

The court held that plain-error review governs where a defendant fails to raise Second Amendment claims below and that no “good cause” excused Wellington’s forfeiture. On the merits, Sixth Circuit precedent foreclosed his facial challenge to § 922(g)(1); his as-applied challenge failed because he is “dangerous” under the circuit’s historical-tradition framework; and his § 924(c) challenge failed because no binding authority renders that statute unconstitutional.

Summary of the Opinion

Because Wellington did not challenge the constitutionality of § 922(g)(1) or § 924(c) in the district court, the panel applied plain-error review. It rejected Wellington’s attempt to secure de novo review by claiming “good cause” under Criminal Rule 12(c)(3). Bruen was decided in June 2022, before his arrest, PSR objections (December 2023), and sentencing (January 2024). Thus, he had ample opportunity to raise Second Amendment objections and did not.

Turning to the substance:

Section 922(g)(1): A facial challenge fails in light of United States v. Williams, which holds that § 922(g)(1) survives a facial attack and that a facial challenge must meet the Salerno “no set of circumstances” standard. An as-applied challenge fails because the Sixth Circuit allows such claims only where the defendant shows he is not dangerous; Wellington’s record (drug trafficking and attempted domestic violence) sufficed to deem him dangerous.
Section 924(c): There is no binding precedent holding § 924(c) unconstitutional under the Second Amendment, and the Sixth Circuit has rejected post-Bruen challenges to § 924(c) (United States v. Burgess). Under United States v. Al-Maliki, the absence of binding contrary law precludes a finding of plain error.

Result: The court found no plain error and affirmed the convictions.

Analysis

Precedents and Authorities Cited

Greer v. United States, 593 U.S. 503 (2021): Reiterates the stringent plain-error standard governing unpreserved claims on appeal.
Fed. R. Crim. P. 52(b): Codifies plain-error review for forfeited arguments.
Fed. R. Crim. P. 12(c)(3): Allows consideration of untimely Rule 12 motions upon a showing of “good cause.” The panel held Wellington lacked good cause.
New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022): Establishes the Second Amendment’s text-and-history test and rejects means-end scrutiny. The court held that Bruen’s timing gave Wellington ample opportunity to litigate below.
United States v. Alvarado, 95 F.4th 1047 (6th Cir. 2024) and United States v. Johnson, 95 F.4th 404 (6th Cir.), cert. denied, 144 S. Ct. 2619 (2024): Confirm that Second Amendment challenges raised for the first time on appeal are subject to plain-error review in the Sixth Circuit.
United States v. White, 58 F.4th 889 (6th Cir. 2023): Articulates the fourth prong of plain error—impact on the fairness, integrity, or public reputation of judicial proceedings.
United States v. Ritchey, 840 F.3d 310 (6th Cir. 2016): Plainness is judged against “the law as it exists now,” i.e., at the time of appellate decision.
United States v. Williams, 113 F.4th 637 (6th Cir. 2024): The linchpin for § 922(g)(1) in the Sixth Circuit. It forecloses facial challenges and frames as-applied challenges around whether the defendant is “dangerous,” directing fact-specific determinations keyed to an historical tradition of disarming dangerous persons.
UNITED STATES v. SALERNO, 481 U.S. 739 (1987): A facial challenge requires showing “no set of circumstances” under which the law is valid—an exceedingly heavy burden adopted by Williams for § 922(g)(1).
United States v. Al-Maliki, 787 F.3d 784 (6th Cir. 2015): A lack of binding precedent establishing the claimed error generally defeats the “plainness” prong of plain-error review.
United States v. Burgess, Nos. 22-1110/22-1112, 2023 WL 179886 (6th Cir. Jan. 13, 2023): The Sixth Circuit has rejected post-Bruen Second Amendment challenges to § 924(c), undermining any assertion of plain error.

Legal Reasoning

1) Standard of Review: The court first settles procedure. Because Wellington did not present his constitutional arguments below, the panel applies plain-error review under Greer and Rule 52(b). Wellington urged de novo review, invoking Rule 12(c)(3) “good cause” on the theory that Bruen had not yet opened the door when he was in district court. The panel rejects that position on the facts: Bruen was decided in June 2022; Wellington was arrested two months later; he had opportunities to object in December 2023 (PSR objections) and January 2024 (sentencing). He did neither. Thus, there was no good cause for failing to raise Bruen-based challenges in the district court, and Sixth Circuit cases like Alvarado and Johnson confirm that plain-error review is the default for unpreserved Second Amendment claims.

2) “Law as It Exists Now”: Under Ritchey, the “plainness” of any error is assessed against current law. That matters because Sixth Circuit law after Bruen has crystallized in ways that defeat Wellington’s claims.

3) Section 922(g)(1) – Facial Challenge: Williams forecloses facial challenges to the felon-in-possession statute. Drawing on Salerno, Williams holds that a facial challenger must show the statute is unconstitutional in all applications—a “heavy burden” not met here. Since Williams binds the panel, there can be no “plain” error in upholding Wellington’s § 922(g)(1) conviction.

4) Section 922(g)(1) – As-Applied Challenge: Williams allows as-applied challenges where a defendant can show he is not “dangerous.” The panel emphasizes that dangerousness is a fact-specific inquiry grounded in historical tradition. Here, Wellington’s convictions for drug trafficking and attempted domestic violence were enough to deem him dangerous. That conclusion tracks the Sixth Circuit’s view that individuals with recent or serious offenses involving violence, coercion, or crime-facilitating conduct fall within the historical tradition of disarmament. The district court, therefore, did not err—certainly not plainly—in accepting the § 922(g)(1) conviction.

5) Section 924(c) – Second Amendment Challenge: The panel notes there is no binding authority holding § 924(c) unconstitutional under the Second Amendment, and the Sixth Circuit has already rejected post-Bruen attacks on § 924(c) (Burgess). Under Al-Maliki, the absence of binding precedent establishing the claimed constitutional error precludes a finding of plain error. Hence, the panel rejects the § 924(c) challenge as well.

Impact and Significance

This decision, though not recommended for publication, reinforces several meaningful currents in Sixth Circuit Second Amendment and appellate procedure jurisprudence:

Preservation matters. Bruen is no longer “new” in ongoing cases. Defendants who want to challenge firearms statutes must raise Second Amendment claims in the district court; otherwise, plain-error review will almost invariably bar relief.
Rule 12(c)(3) “good cause” is constrained. The panel resists an expansive “futility” rationale. If Bruen predates district court proceedings, failing to object below will not be excused on appeal.
Williams continues to shape § 922(g)(1) litigation. In the Sixth Circuit, facial challenges to § 922(g)(1) are dead on arrival; as-applied challenges survive only for defendants who can convincingly demonstrate non-dangerousness. Criminal histories involving violence or drug trafficking will typically defeat such claims.
Post-Bruen challenges to § 924(c) remain nonstarters at the plain-error stage. Even if some litigants argue that bearing a firearm for self-defense cannot be punished, the Sixth Circuit’s existing law—treating § 924(c) as regulating gun possession “in furtherance of” criminal activity—provides no basis for plain-error relief.
Consistency with broader Supreme Court trends. Although not cited, the Supreme Court’s decision in United States v. Rahimi (2024) recognizes a historical tradition of disarming those who threaten danger to others. The Sixth Circuit’s dangerousness framework for § 922(g)(1) as-applied challenges coheres with that trend.

Practically speaking, defense counsel should: (a) preserve Second Amendment objections early, (b) develop a detailed record showing why a particular client is not dangerous (stable, nonviolent history, long post-conviction law-abiding conduct, rehabilitative evidence), and (c) recognize that, absent preservation, the plain-error hurdle will block relief even for potentially debatable claims. Prosecutors, conversely, will rely on Williams’s dangerousness focus, emphasizing violent or crime-facilitating histories.

Complex Concepts Simplified

Plain-Error Review (Rule 52(b): 4-Part Test):
- Error: There must be some legal mistake.
- Plain: The error must be clear or obvious under current law at the time of appeal.
- Affects Substantial Rights: Usually, it must have affected the outcome.
- Fairness/Integrity/Reputation: Even then, the court has discretion and intervenes only if the error seriously undermines the judicial process.
If any of these prongs is not met, the appellant usually loses.
Good Cause (Rule 12(c)(3)): A narrow safety valve for late-raised pretrial objections. It is not enough to say “the law was against me”; where the Supreme Court or circuit law already enabled the argument during district court proceedings, “good cause” is unlikely.
Facial vs. As-Applied Challenges:
- Facial: Argues the statute is invalid in all applications. Under Salerno, that is a very high bar.
- As-Applied: Argues the statute is unconstitutional as used against this particular person, given their conduct and circumstances. In the Sixth Circuit, § 922(g)(1) as-applied challenges turn on whether the individual is “dangerous.”
Dangerousness in § 922(g)(1) As-Applied Claims: Not a generic policy judgment but a historically grounded inquiry into whether the person falls within a tradition of disarming those who pose a risk to public safety (e.g., violent offenses, coercive conduct, weapons used to facilitate crime). Drug trafficking and domestic-violence-related offenses commonly support a dangerousness finding.
Section 924(c) and the Second Amendment: Section 924(c) punishes possessing or using a firearm “in furtherance of” a crime. Post-Bruen, courts have largely treated that conduct as outside the Second Amendment’s protection because it ties firearm possession to criminal activity, not innocent self-defense.
Not Recommended for Publication: Signals the court’s view that the opinion does not add materially new binding precedent. Still, it conveys how the circuit applies existing law, and district courts within the circuit often treat such opinions as persuasive.

Conclusion

Wellington underscores the Sixth Circuit’s disciplined approach to unpreserved Second Amendment challenges after Bruen. Procedurally, the opinion confirms that defendants cannot bypass plain-error review by invoking “good cause” when Bruen predated their district court proceedings. Substantively, Williams controls § 922(g)(1): facial attacks fail under Salerno’s demanding standard, and as-applied claims hinge on a historically informed assessment of dangerousness—an assessment that, on Wellington’s record, defeats his claim. Challenges to § 924(c) also falter, especially at the plain-error stage, absent binding precedent declaring the statute unconstitutional.

Key takeaways:

Preserve Bruen-based objections early; do not rely on appellate rescue.
Within the Sixth Circuit, § 922(g)(1) remains secure against facial attacks; as-applied relief is reserved for non-dangerous persons.
Section 924(c) remains viable post-Bruen, particularly where the Second Amendment claim is raised for the first time on appeal.

Though nonprecedential, the decision offers clear guidance: in the Sixth Circuit’s post-Bruen landscape, procedural defaults are dispositive, and the substantive guardrails around § 922(g)(1) and § 924(c) remain firmly in place.