C. Dissent (Judge Graves)

Judge Graves agrees that Diaz forecloses a facial Second Amendment challenge but dissents on:

• The as-applied challenge: He argues that Schnur does not control because McCree’s juvenile aggravated battery adjudication:
  • was not for “aggravated battery causing great bodily injury” as in Schnur,
  • has no facts in the record showing injury, and
  • arose from a statute that does not require actual bodily injury.
  He stresses that neither Rahimi nor Schnur authorizes disarmament based simply on a statutory label without any evidence that the defendant actually injured or credibly threatened to injure someone.
• The enhancement: He contends that:
  • the district court failed to explain how the gun “facilitated” crack possession;
  • five rocks in a single baggie, with $94, absent other indicia, are fully consistent with personal use;
  • the Probation Office’s and law enforcement’s belief that McCree intended to distribute is an impermissible presumption, not supported by concrete evidence;
  • the majority’s recharacterization of the conduct as “trafficking” is unsupported by the record and inconsistent with Fifth Circuit precedents (including Jeffries, Henry, Hunt, and Skipper).

IV. Analysis of Precedents and Doctrinal Development

A. Second Amendment and § 922(g)(1)

1. Bruen’s Two-Step Framework

The majority in McCree expressly relies on the Bruen test as explained in Schnur:

1. Does the Second Amendment’s text cover the defendant’s conduct (i.e., “keeping” or “bearing” arms)? If yes, the conduct is presumptively protected.
2. The government then must show that the challenged regulation is consistent with the Nation’s historical tradition of firearm regulation.

Here, as in most felon-in-possession cases, the first step is easily satisfied: possession of a handgun falls within “keep and bear Arms.” The work thus occurs at Bruen’s second step—historical tradition.

2. Diaz and the Facial Challenge

In United States v. Diaz, the Fifth Circuit rejected a facial attack on § 922(g)(1). Diaz effectively holds that, at least in the Fifth Circuit, Congress’s categorical disarmament of felons under § 922(g)(1) can be reconciled with historical traditions recognized in Bruen. Thus, McCree’s facial challenge is squarely foreclosed.

3. Connelly, Rahimi, and As-Applied Challenges

Between McCree’s opening brief and his supplemental brief, the Fifth Circuit decided:

• United States v. Connelly, which invalidated § 922(g)(3) (unlawful user of a controlled substance) as applied under the Second Amendment; and
• The Supreme Court decided United States v. Rahimi, upholding § 922(g)(8) (domestic-violence restraining orders) but only when there is a finding that the individual poses a credible threat to an intimate partner’s safety.

These decisions confirm that status-based firearm prohibitions can be constitutionally vulnerable as applied when the government cannot show that the particular category of persons historically could be disarmed (e.g., nonviolent drug users). They also stress individualized assessments of dangerousness and credible threats.

4. Schnur and “Violent Criminal History”

In United States v. Schnur, the Fifth Circuit applied Bruen’s second step to a defendant with a Florida conviction for “aggravated battery causing great bodily injury.” The factual recitation in Schnur is graphic: the defendant brutally attacked the victim, beat him, used a taser, and caused severe injuries requiring stitches and hospitalization.

Schnur concluded:

“Our caselaw suggests that there are historical analogues demonstrating our Nation's longstanding tradition of disarming persons with a violent criminal history.”

and:

“[Schnur's] felony conviction for a ‘crime of violence’ indicates that he poses a threat to public safety and the orderly functioning of society. The regulation of such person's ability to possess a firearm is consistent with this Nation's historical tradition of firearm regulation.”

Thus, Schnur grounds the constitutionality of § 922(g)(1) as applied in a historically supported tradition of disarming those with genuinely violent criminal histories.

5. McCree’s Extension of Schnur

McCree’s majority opinion extends this reasoning in several significant ways:

1. It treats Louisiana aggravated battery (La. R.S. 14:34), as defined by state statute and classified as a “crime of violence” under La. R.S. 14:2(B), as sufficient to mark McCree as a person who may constitutionally be disarmed, even though:
   • the record contains no detail about the actual conduct or any injury, and
   • Louisiana’s statutory definition of “crime of violence” includes threats and offenses “that, by [their] very nature, involve[] a substantial risk that physical force... may be used,” and offenses involving possession or use of a dangerous weapon.
2. The opinion expressly rejects the dissent’s suggestion that actual physical injury is required for a predicate offense to justify disarmament:

   “[N]either Schnur nor any other authority dictates that a predicate offense must have involved actual injury to permit the deprivation of Second Amendment rights.”

3. It relies on Rahimi’s and Schnur’s emphasis on persons who threaten or “menace” others with physical harm to equate a crime defined in terms of “attempted use or threatened use” of force with the kind of dangerousness that historically justified firearm restrictions.

In effect, McCree collapses the distinction between statutory categorization and factual conduct for Second Amendment purposes: the existence of a state “crime of violence” label, combined with elements involving force or a dangerous weapon, suffices to place the defendant in the historically disarmable class.

6. The Dissent’s Critique

Judge Graves resists this extension on several grounds:

• Lack of facts: In Schnur the record included detailed, violent conduct and actual physical injury; here “the circumstances of [the aggravated battery] case were unavailable,” and no injury is shown.
• Statutory definition alone is insufficient: Louisiana’s “crime of violence” definition includes mere threats and possession of a dangerous weapon; reliance on that label sidesteps Bruen’s historical inquiry into whether people like McCree—on the actual facts—were historically disarmed.
• Rahimi’s “credible threat” requirement: Rahimi upheld § 922(g)(8) only when there is a judicial finding that the person poses a credible threat. McCree has no such individualized finding; nor is there evidence of using a gun to menace anyone.
• Juvenile status and predicate stacking: The predicate here is a juvenile adjudication for which the record is silent. The dissent notes the problematic nature of using a potentially underdeveloped juvenile act as the foundational predicate, upon which subsequent felon-in-possession convictions then stack.

The dissent thus portrays McCree as significantly expanding the category of individuals who can be disarmed without a clear demonstration that they fall within Bruen’s historically recognized “dangerous” or “non-law-abiding” classes.

B. Standard of Review and Plain Error

The panel’s handling of standard of review is also instructive:

• Normally, as-applied constitutional claims raised for the first time on appeal would be forfeited. However, Zuniga allows courts to consider such arguments when intervening decisions have “provided an important clarification in the law” and refusing to consider them would “perpetuat[e] incorrect law.”
• The court uses this discretion but confines review to plain error, consistent with Jones and Cisneros.
• Under plain error, the defendant must show (1) error, (2) that is clear or obvious under current law, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
• Critically, the panel states that “the absence of binding authority typically defeats the defendant’s argument” in as-applied Second Amendment cases under plain-error review, effectively insulating new legal questions from relief unless and until they are resolved in someone else’s case.

Practically, this means that defendants like McCree—raising early as-applied challenges in a developing doctrinal area—will almost always lose on plain-error grounds unless the panel is prepared to create new favorable precedent in their favor.

C. The § 2K2.1(b)(6)(B) Enhancement and Drug Cases

1. The Guideline Framework

U.S.S.G. § 2K2.1(b)(6)(B) provides a four-level enhancement if the defendant:

“used or possessed any firearm or ammunition in connection with another felony offense.”

The Application Notes (which, under current law, are treated as authoritative unless plainly inconsistent with the text) differentiate between:

• Drug trafficking offenses: If the firearm is found in close proximity to drugs, drug-manufacturing materials, or paraphernalia, the enhancement “shall apply” because “the presence of the firearm has the potential of facilitating” the trafficking offense (Note 14(B)(ii)). This creates a de facto presumption of facilitation.
• Other felony offenses (e.g., simple drug possession): The firearm must have actually facilitated, or at least had the potential to facilitate, the other felony (Note 14(A)). There is no presumption merely from proximity.

2. Jeffries, Henry, and the “Mere Proximity” Problem

In United States v. Jeffries, the defendant had a gun and a single rock of crack in a car. The Fifth Circuit held that:

• For simple possession, “no presumption is made” that the gun facilitated possession simply because both were illegal and in close proximity.
• The government must show something more—a nexus between the gun and the drugs—such as using the firearm to protect drugs or proceeds or to embolden the defendant’s possession.
• On the sparse facts in Jeffries, the enhancement was vacated because the record did not plausibly support that the gun “emboldened” or protected a small personal-use quantity of crack.

United States v. Henry (2024) reaffirmed this principle in a different context (stolen vehicle plus gun). Henry rejected a nexus theory based solely on proximity and possession, emphasizing again that mere co-possession does not suffice outside drug trafficking.

3. The District Court’s Approach in McCree

The district court:

• Noted that Jeffries involved one rock of crack and McCree had five rocks;
• Emphasized that McCree had the gun “on his person” while fleeing, discarded it in flight, and possessed the crack at the same time;
• Concluded it was not “a mere accident” that the gun and drugs were together, and that this combination “facilitated” his possession of crack.

However, the court did not:

• make an explicit finding of intent to distribute (drug trafficking); or
• give a detailed explanation, as required by Henry, of how precisely the gun facilitated the simple possession offense.

4. The Majority’s Alternative Basis: Recharacterizing as Drug Trafficking

The Fifth Circuit candidly acknowledges that McCree’s case resembles Jeffries and Henry—cases in which the enhancement was rejected. It then sidesteps that problem by invoking the “any ground supported by the record” doctrine:

“Here, irrespective of whether McCree’s possession of a firearm facilitated his possession of the crack cocaine, the record renders amply plausible that McCree possessed the firearm in connection with his trafficking of drugs.”

To support this, the majority relies on:

• United States v. Williamson, which permits intent to distribute to be inferred from mere possession of a quantity of drugs “inconsistent with personal use”;
• The facts that McCree had:
  • a firearm with extended magazine;
  • five rocks of crack cocaine;
  • no personal-use paraphernalia (no crack pipe, etc.);
  • was standing on a street corner; and
  • fled when an officer approached.

On this record, the panel holds that it was “plausible” for the district court to find intent to distribute—which, if found, automatically triggers § 2K2.1(b)(6)(B) under Note 14(B)(ii). And because the enhancement is sustainable on that basis, no remand is necessary.

5. The Dissent’s Counter-Analysis of the Drug Evidence

Judge Graves offers a meticulous counter-analysis grounded in both federal and Louisiana precedents:

• Personal-use quantity: He emphasizes that the record contains:
  • no evidence of the weight or size of the rocks;
  • no expert testimony about typical user amounts; and
  • no evidence that McCree ever distributed drugs.
• Factual concessions by the government: At sentencing, the government:
  • acknowledged that five rocks were in a single baggie (not individually packaged for sale);
  • conceded there was nothing in the record to show that officers suspected drug dealing prior to the arrest;
  • argued only that five rocks are “more than a single use,” not that they were inconsistent with personal use.
• Analogous federal cases:
  • Hunt: 7.998 grams of crack (one large rock and several smaller), a gun, lack of paraphernalia, and suspicious circumstances were still held insufficient to prove intent to distribute, in part because such a quantity can be consistent with personal use and because users can consume large dollar amounts daily.
  • Skipper: 2.89 grams of crack was “not clearly inconsistent with personal use” and insufficient to show intent to distribute.
  • Turner v. United States: 14.68 grams of cocaine held consistent with personal use by the Supreme Court.
  • Dotsey: sold crack rocks averaging 0.16 grams; the dissent uses this to illustrate that even if each of McCree’s five rocks were at the high end (~0.35 grams), the total weight would be under typical personal-use benchmarks found in prior cases.
• Louisiana law and practice:
  • Louisiana cases (e.g., State v. James) have treated five rocks totaling ~0.77 grams as consistent with personal use.
  • Louisiana uses a multi-factor test (State v. Hearold) to infer intent to distribute (prior distribution, form of drug, amount, expert testimony, paraphernalia). Virtually none of these factors are present here.

The dissent also underscores:

• McCree’s own detailed explanation of his crack use (crushing rocks and mixing with cigarettes or marijuana—“primos”), which is consistent with accepted user methods noted by law enforcement in other cases;
• His repeated statements that he carried a gun due to traumatic experiences and fear for his safety, not to protect drugs.

Against this background, the dissent insists that the majority is engaged in improper fact-finding and that the record does not plausibly support a finding of trafficking; thus, the automatic trafficking-based enhancement cannot be sustained.

6. Doctrinal Tension: Clear Error vs. “Any Ground”

There is a subtle but important doctrinal tension here between:

• The deference owed under clear-error review to the district court’s actual factual findings, and
• The appellate court’s ability to “affirm on any ground supported by the record.”

In McCree:

• The district court found that the gun facilitated simple possession, not that McCree intended to distribute.
• The majority affirms on a different factual characterization—drug trafficking—based on what it deems a “plausible” inference from the same record.

The dissent essentially argues that under clear-error review, the appellate court should ask only whether the district court’s rationale is plausibly supported, not whether an alternative factual theory could have been supported in the abstract. McCree thus pushes the “any ground supported by the record” doctrine into the realm of fact-intensive sentencing determinations, potentially diluting the clear-error standard.

V. Impact and Future Implications

A. Second Amendment – Who Counts as Disarmable “Violent” Offenders?

The McCree decision contributes to a post-Bruen line of cases that:

• Uphold § 922(g)(1) at least as applied to persons with “violent” criminal histories; and
• Treat state-defined “crimes of violence” involving the use, attempted use, or threatened use of force, or use of a dangerous weapon, as sufficiently analogous to historically disarmable categories.

Key consequences include:

• Reduced room for as-applied challenges by defendants with any prior “crime of violence” predicate, even if:
  • the offense was a juvenile adjudication,
  • the record lacks detail about the conduct or injury, or
  • the offense involved only a threat or weapon possession without actual harm.
• Greater reliance on categorical proxies (statutory labels and elements) rather than on individualized evidence of dangerousness or credible threat, potentially at odds with Rahimi’s emphasis on fact-specific threat determinations.
• A developing two-tier approach to as-applied challenges:
  • Some categories (nonviolent drug users, perhaps certain misdemeanants) may have stronger as-applied claims under Connelly-type reasoning;
  • Others, with any offense labeled a “crime of violence,” will face an uphill battle under McCree and Schnur.

B. Sentencing – Broadening § 2K2.1(b)(6)(B) in Drug Cases

On the sentencing side, McCree’s impact is substantial:

• It lowers the practical threshold for inferring “drug trafficking” from small quantities of drugs plus a firearm, especially when:
  • there is no paraphernalia,
  • the drugs are in multiple units (e.g., several rocks),
  • the defendant has some cash,
  • and he flees upon encountering law enforcement.
• Once a court can plausibly characterize the offense as trafficking, the firearm enhancement becomes nearly automatic under Application Note 14(B)(ii), regardless of the actual reason the defendant carried the gun.
• Defendants with modest drug habits and firearms thus face a heightened risk of:
  • having simple-possession conduct judicially reclassified as trafficking at sentencing, and
  • receiving significant guideline increases (here, from a 46–57 month range to 70–87 months).

For defense counsel, McCree underscores the importance of:

• Developing a robust factual record about:
  • the actual drug quantity (weight),
  • usage patterns,
  • method of ingestion (which may not require paraphernalia),
  • and the absence of trafficking indicia (scales, baggies, customer lists, observations of hand-to-hand sales).
• Challenging PSR assertions and law-enforcement “beliefs” about trafficking as speculative unless supported by evidence.

For prosecutors, the opinion signals that relatively minimal circumstantial evidence can suffice to support an inference of trafficking, at least under deferential review, especially when combined with a firearm and flight.

C. Institutional Implications – The Role of Appellate Factfinding

McCree also sits at the intersection of substantive law and appellate procedure:

• By affirming a trafficking-based enhancement that the district court did not explicitly adopt, the panel broadens the use of “any ground supported by the record” in fact-heavy sentencing disputes.
• The dissent warns that this may erode the clear-error standard, inviting appellate courts to supply their own factual inferences to sustain enhancements, rather than insist on clear, articulated findings below.
• This dynamic may reduce the incentive for district courts to make detailed findings and for the parties to fully litigate the factual underpinnings of enhancements at sentencing.

VI. Complex Concepts Simplified

1. Facial vs. As-Applied Constitutional Challenges

• A facial challenge asserts that a law is unconstitutional in all of its applications—there is no set of circumstances under which it would be valid (e.g., arguing § 922(g)(1) is invalid no matter what the felon’s history).
• An as-applied challenge concedes that the law might be valid in some instances, but is unconstitutional as applied to the particular person or facts in the case (e.g., arguing that disarming someone with a specific, non-dangerous criminal history violates the Second Amendment).

2. Plain Error Review

When a defendant does not raise an issue in the district court, appellate courts use plain error review:

1. An error occurred;
2. The error is plain (clear or obvious under current law);
3. The error affected the defendant’s substantial rights (usually meaning it likely affected the outcome); and
4. The error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

In McCree, the court essentially holds that, given the absence of binding authority supporting McCree’s as-applied theory, any error could not be “plain.”

3. “Crime of Violence”

Louisiana’s definition of “crime of violence” (La. R.S. 14:2(B)) is broad. It includes offenses that:

• Have as an element the use, attempted use, or threatened use of physical force; or
• By their nature involve a substantial risk that physical force may be used; or
• Involve possession or use of a dangerous weapon.

This statutory label is used both for state sentencing and, in McCree, as a proxy for determining whether a predicate offense is sufficiently “violent” to justify federal disarmament.

4. U.S.S.G. § 2K2.1(b)(6)(B) and “In Connection With”

The enhancement applies if a firearm is used or possessed “in connection with” another felony. Two key categories:

• Drug trafficking: If the firearm is near drugs or drug paraphernalia, the enhancement automatically applies—courts presume the gun facilitates the trafficking.
• Other felonies, including simple possession: No presumption. The government must show that the gun made the crime easier or safer (e.g., protecting drugs, emboldening the defendant, or being used in the course of the offense).

McCree is about whether a small quantity of drugs and a gun, without classic dealing indicators, can be construed as trafficking for guideline purposes.

VII. Conclusion

United States v. McCree marks an important waypoint in the Fifth Circuit’s post-Bruen jurisprudence and in federal sentencing practice.

• On the Second Amendment front, the court:
  • reaffirms Diaz’s rejection of facial challenges to § 922(g)(1);
  • extends Schnur’s violent-felon rationale to a juvenile aggravated battery adjudication with no factual record; and
  • endorses the use of state “crime of violence” classifications and threat-based offenses as sufficient to place a person within a historically disarmable class, even absent proof of actual injury.
• On the sentencing front, the panel:
  • upholds a § 2K2.1(b)(6)(B) enhancement by characterizing the defendant’s conduct as drug trafficking, despite the district court’s focus on simple possession;
  • relies on limited circumstantial evidence to infer intent to distribute; and
  • illustrates how appellate courts may affirm guideline enhancements on alternative factual theories so long as the record can plausibly support them.

Judge Graves’s partial dissent highlights the costs of these moves: a diminished role for individualized dangerousness assessments in Second Amendment analysis, a reduced threshold for inferring trafficking from small drug quantities, and a loosening of the clear-error standard in sentencing review.

In the broader legal landscape, McCree signals:

• A strong judicial inclination to preserve § 922(g)(1) as applied to anyone with a statutorily defined violent felony, even when the facts of the prior offense are opaque;
• Increased exposure of drug-using defendants with firearms to substantial guideline enhancements, as courts treat small quantities and circumstantial evidence as sufficient to justify trafficking characterizations; and
• The critical importance, for both defense and prosecution, of building a detailed factual record at sentencing regarding the nature of prior convictions and the precise character of any drug-related conduct.

As Bruen-era Second Amendment litigation and guideline interpretation continue to evolve, United States v. McCree will likely serve as a key reference point in the Fifth Circuit for both violent-felon disarmament and firearm–drug sentencing interactions.