Validation of Felon-in-Possession Prohibition and Sentencing Cross-Reference for Attempted Murder in United States v. Hernandez

Introduction

United States v. Hernandez (5th Cir. 2025) addresses two core issues: first, whether 18 U.S.C. § 922(g)(1) — the federal prohibition on firearm possession by convicted felons — violates the Second Amendment when applied to an individual with prior non‐violent convictions, and second, whether the Sentencing Guidelines cross‐reference for attempted first‐degree murder (§ 2A2.1(a)(1)) was properly applied at Hernandez’s sentencing despite his claim of self-defense.

Defendant‐Appellant Christopher Blair Hernandez, previously convicted in Texas of evidence tampering and cocaine possession (each punishable by over one year in prison), pleaded guilty to being a felon in possession of a 9 mm handgun under 18 U.S.C. § 922(g)(1). The district court imposed a 165-month term of imprisonment by applying a cross-reference to the guideline for attempted first-degree murder (USSG § 2A2.1(a)(1)). On appeal, Hernandez raised an as-applied Second Amendment challenge to § 922(g)(1) and contested the attempted‐murder cross-reference on grounds of self-defense and lack of intent to kill.

Summary of the Judgment

The Fifth Circuit affirmed. On the Second Amendment question, the court held (under plain-error review) that binding precedent forecloses Hernandez’s as-applied challenge to § 922(g)(1) — drug‐felony and evidence‐tampering convictions fall within the longstanding tradition of disarming certain categories of persons. On the sentencing issue, the court reviewed application of USSG § 2A2.1(a)(1) de novo for Legal Reasoning and for clear error on factual findings. It found ample record support for (a) inferring specific intent to kill because Hernandez pointed his weapon and fired at the victim, and (b) rejecting his self-defense theory in light of conflicting testimony, deleted surveillance video, and lack of physical evidence showing the victim fired first. The cross-reference and resulting 165-month sentence were therefore affirmed.

Analysis

Precedents Cited

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) — supplied the two-step test for Second Amendment challenges: (1) does the Amendment’s plain text cover the conduct, and if so (2) is the restriction consistent with the Nation’s historical tradition of firearm regulation?
United States v. Cisneros, 130 F.4th 472 (5th Cir. 2025) — held that an as-applied Second Amendment challenge by a drug‐felon under § 922(g)(1) is foreclosed by binding precedent.
United States v. Vargas, 74 F.4th 673 (5th Cir. en banc 2023) — confirmed that Sentencing Guidelines commentary is binding.
United States v. Paul, 274 F.3d 155 (5th Cir. 2001) — placed the burden on the Government to prove Sentencing Guidelines cross-references by a preponderance of the evidence.
United States v. Torres-Magana, 938 F.3d 213 (5th Cir. 2019) — explained the clear-error standard for reviewing sentencing-court factual findings.
United States v. Santiago, 96 F.4th 834 (5th Cir. 2024) — articulated the elements for asserting self-defense at sentencing under § 1111 murder guidelines.

Legal Reasoning

1. Second Amendment, § 922(g)(1), and Bruen. Hernandez conceded that his facial challenge failed in light of Bruen and binding Fifth Circuit precedent. He pressed only an as-applied challenge, contending that his non-violent felonies (evidence tampering and drug possession) did not fit “the Nation’s historical tradition of firearm regulation.” Under plain-error review, the court found no “clear or obvious” error: Cisneros and other circuits confirm that § 922(g)(1) applies to those with drug felonies and similar convictions.

2. Sentencing Guidelines cross-reference (USSG § 2A2.1(a)(1)). The Guidelines require a base offense level of 14 for simple felon-in-possession offenses (§ 2K2.1), but if the defendant “used or possessed” the weapon “in connection with the commission or attempted commission of another offense,” a cross-reference to the attempted‐murder guideline applies (§ 2A2.1(a)(1)). The Government must show attempt‐murder conduct by a preponderance of the evidence. Here:

Intent to kill: By pointing and firing a 9 mm pistol at Villalobos, Hernandez exhibited specific intent to kill, as permitted by prior Fifth Circuit decisions inferring intent from aimed gunfire.
Self-defense rejected: To invoke self-defense, Hernandez bore the initial burden to produce evidence of an imminent threat and lack of alternative to violating the law. Even assuming conflicting witness accounts, the district court plausibly credited the Government’s version (no shell casings or witness testimony to prove Villalobos fired first, plus deleted camera footage), and therefore it had no clear error in concluding self-defense failed.

Impact

United States v. Hernandez reinforces two significant points:

Felons—including those with non-violent convictions—cannot evade § 922(g)(1) under Bruen by arguing insufficient historical analogues. As-applied challenges by such felons face near-certain defeat in the Fifth Circuit unless Supreme Court precedent changes.
At sentencing, district courts enjoy broad discretion to apply Guidelines cross-references for violent offenses when the record supports an attempt-murder inference and rejects self-defense. Defendants who use or possess firearms during violent episodes risk significantly higher guideline ranges even if they claim defensive motives.

Complex Concepts Simplified

Plain-error review: An appellate standard under which the defendant must show a clear or obvious legal error that affects substantial rights and seriously impacts fairness.
Bruen test: First, does the Amendment cover the conduct? Second, if so, is the restriction justified by historical tradition?
Sentencing Guidelines cross-reference: A rule that, if a weapon is used in connection with another offense (or attempted offense), the harsher guideline for that offense applies instead of the base guideline for simple possession.
Clear error: A deferential standard requiring the appellate court to affirm unless it is left with a “definite and firm conviction” that a mistake occurred in the fact-finding process.

Conclusion

United States v. Hernandez confirms the solidity of the federal felon-in-possession prohibition both facially and as applied to non-violent offenders, and underscores district courts’ authority to impose Guidelines cross-references for attempted murder when defendants discharge firearms at others. Practitioners should note that (1) Second Amendment challenges to § 922(g)(1) under Bruen will almost always fail in the Fifth Circuit for felons, and (2) use of a weapon—even in claimed self-defense—can subject a defendant to a dramatically higher sentencing range under the attempted‐murder guideline.