United States v. Pettway: Re-entrenching § 922(g)(1) After Rahimi and Clarifying “Intrinsic” Evidence & Sentencing Cross-References

Introduction

In United States v. James Pettway, No. 24-10422 (11th Cir. July 10, 2025), the Court of Appeals for the Eleventh Circuit delivered a compact but wide-ranging per curiam opinion that touches four discrete topics:

1. Admissibility of “other-act” evidence—specifically, evidence of an attempted robbery—in a felon-in-possession (§ 922(g)(1)) trial;
2. Application of the Sentencing Guidelines’ robbery cross-reference, § 2K2.1(c)(1)(A) ➔ § 2X1.1 ➔ § 2B3.1;
3. The reasonableness of a major upward variance (100-125 months to 180 months); and
4. Facial and as-applied attacks on the constitutionality of § 922(g)(1) in the post-Bruen/Rahimi landscape.

Defendant-appellant James Pettway—already a convicted felon—was found with a handgun two days after an attempted robbery in Mobile, Alabama, and received a 180-month sentence after an upward variance. He challenged his conviction and sentence on evidentiary, Guidelines, substantive-reasonableness, and constitutional grounds. The Eleventh Circuit affirmed in all respects.

Summary of the Judgment

• Evidentiary Ruling: Evidence of the attempted robbery was “intrinsic” to the firearm offense and, even if marginally prejudicial, was admissible under Rule 403.
• Guidelines Calculation: The district court correctly cross-referenced to the robbery guideline under § 2K2.1(c)(1)(A) because a preponderance of the evidence tied Pettway’s firearm to an attempted robbery.
• Upward Variance: The 180-month sentence, 55 months above the top of the advisory range, was substantively reasonable given Pettway’s violent history and the seriousness of the conduct.
• Constitutionality of § 922(g)(1): Relying on the Eleventh Circuit’s prior-panel precedent rule and post-Rahimi decision in United States v. Dubois, the Court reaffirmed that § 922(g)(1) remains facially and as-applied constitutional.

Analysis

Precedents Cited and Their Influence

The opinion is a showcase of Eleventh Circuit and Supreme Court authority, applied in four doctrinal silos:

1. Evidence  (Rule 404(b), “Intrinsic,” and Rule 403)
   
   • United States v. Troya, 733 F.3d 1125 (11th Cir. 2013) – taxonomy of direct, intrinsic, and extrinsic evidence.
   • United States v. McLean, 138 F.3d 1398 (11th Cir. 1998) – defining “intrinsic” evidence as material that completes the story of the crime.
   • United States v. McGregor, 960 F.3d 1319 (11th Cir. 2020) – caution that Rule 403 exclusion is “extraordinary relief.”
   • United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005) – limiting instructions diminish prejudice.

   These cases paved the way for the panel to classify the attempted robbery evidence as intrinsic—hence not even subject to Rule 404(b)’s higher bar—and to overrule Pettway’s prejudice objection.

2. Sentencing (Guideline Interpretation & Standard of Proof)
   
   • United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024) – clear-error review of factual findings; preponderance standard for enhancements.
   • Gall v. United States, 552 U.S. 38 (2007) – abuse-of-discretion review for variances.

   Using Cenephat, the Court accepted unobjected-to PSR facts and trial testimony linking the spent casing to Pettway’s gun, satisfying § 2K2.1(c)(1)(A)’s “in connection with” requirement.

3. Punishment Philosophy (Variance)
   
   • United States v. Butler, 39 F.4th 1349 (11th Cir. 2022) – when a sentence is “in the ballpark.”
   • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) – major variances demand strong justification.

   These cases guided the panel to bless the district court’s focus on Pettway’s “demonstrated dangerousness” and unscored violent history as justification for the 55-month upward variance.

4. Second Amendment (Prior-Panel Precedent and Post-Bruen/Rahimi)
   
   • District of Columbia v. Heller, 554 U.S. 570 (2008)
   • N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)
   • United States v. Rahimi, 602 U.S. 680 (2024)
   • United States v. Rozier, 598 F.3d 768 (11th Cir. 2010)
   • United States v. Dubois, 139 F.4th 887 (11th Cir. 2025)
   • United States v. White, 837 F.3d 1225 (11th Cir. 2016) – statement of the prior-panel-precedent rule.

   The panel found that Bruen and Rahimi did not “demolish” Rozier. Through Dubois, § 922(g)(1) prohibitions on felons remain “presumptively lawful,” obviating Pettway’s constitutional attack.

Legal Reasoning

1. Evidence: The attempted robbery and the firearm possession were “woven together” in time, actors, and location. Labeling the evidence intrinsic allowed bypass of Rule 404(b)’s propensity safeguards. Even if extrinsic, its probative value—explaining why police focused on Pettway and corroborating his admission—outweighed prejudice. A limiting instruction further purified the record.
2. Sentencing Cross-Reference:
   • Step 1 – § 2K2.1(c)(1)(A) asks whether “another offense” (attempted robbery) was committed “with” the firearm.
   • Step 2 – § 2X1.1 redirects the court to the guideline for the substantive offense—robbery, § 2B3.1.
   • Step 3 – § 2B3.1 sets a base offense level of 20 and adds +7 for a discharged weapon.
   The preponderance test was met by ballistics, witness ID, and Pettway’s own admissions.
3. Variance: The district judge crafted an individualized sentence by emphasizing: (1) Numerous unscored violent offenses, (2) A stolen firearm discharged in a populated area, (3) Need for deterrence and public protection. Because the statutory maximum (life) dwarfed 180 months, the sentence resided in a “permissible outcome” zone.
4. Second Amendment: Operating under the prior-panel-precedent rule, the panel needed only to note that Dubois post-dated Rahimi and re-affirmed Rozier. Therefore, any further textual-historical exploration was foreclosed.

Impact on Future Litigation

• Post-Rahimi Stability: Appellants in the Eleventh Circuit will find it nearly impossible to attack § 922(g)(1) until the Supreme Court directly speaks. Pettway cements Dubois as the controlling authority.
• Intrinsic Evidence Doctrine: The opinion broadens the “same series of transactions” concept, signaling that conduct merely two days apart can be intrinsic when it forms the narrative bridge to the charged offense.
• Guideline Cross-References: Pettway reaffirms that even “attempt” conduct, proved by a mere preponderance, can unlock dramatic offense-level hikes under § 2K2.1(c). Defense counsel must vigilantly contest PSR facts or face steep increases.
• Upward Variances: The Court’s deferential tone underscores that substantial violent histories, even if partially unscored, can justify major variances if the judge builds a record keyed to § 3553(a).

Complex Concepts Simplified

Intrinsic vs. Extrinsic Evidence

Intrinsic evidence is part of the same chain of events as the charged crime, so it is automatically admissible (subject to Rule 403). Extrinsic evidence is a separate “other act” and must pass Rule 404(b)’s test.

Rule 403 “Unfair Prejudice”

The court balances how helpful the evidence is (probative value) against how likely it is to inflame the jury. Excluding relevant evidence is an “extraordinary” step.

Sentencing Cross-Reference (§ 2K2.1(c))

When a firearm offense facilitates another crime (e.g., robbery), the Guidelines instruct courts to sentence as though the other crime occurred—even if the defendant is not separately charged.

Variance vs. Departure

A departure relies on a specific Guideline provision; a variance is simply a judge’s decision that the advisory range is “insufficient” under § 3553(a). Pettway’s 180-month term was a variance.

Prior-Panel-Precedent Rule

An Eleventh Circuit panel may not overrule an earlier published panel unless intervening Supreme Court or en banc authority directly conflicts with it.

Facial vs. As-Applied Challenge

A facial attack claims the statute is unconstitutional in all applications. An as-applied attack targets the statute’s application to a particular defendant’s circumstances.

Conclusion

United States v. Pettway is more than a routine affirmance; it is a strategic reaffirmation of doctrinal cornerstones in federal criminal law:

• Evidence: The Eleventh Circuit signals a liberal approach to declaring evidence “intrinsic,” shrinking the safe harbor for Rule 404(b) objections.
• Sentencing: Cross-references remain potent tools; defense silence or vague objections invite steep offense-level jumps.
• Variance Jurisprudence: Judges retain broad discretion to escalate sentences when § 3553(a) factors—especially public safety—cry out for it.
• Second Amendment Litigation: Until the Supreme Court says otherwise, § 922(g)(1) is untouchable in the Eleventh Circuit. Pettway thus closes the door on Bruen-style challenges by felons, at least for now.

In sum, the opinion fortifies prosecutorial pathways for using narrative-completing evidence, green-lights significant upward variances grounded in unscored violent histories, and slams the constitutional door on felon-possession arguments post-Rahimi. Practitioners should treat Pettway as the latest roadmap for litigating (and defending) firearm cases in the Eleventh Circuit.