Vehicular-Evasion Felony as a Second Amendment “Dangerousness” Marker for As-Applied § 922(g)(1) Challenges

1. Introduction

Peter Villa Cordova pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), without a written plea agreement. He nonetheless pursued an as-applied constitutional challenge on appeal, contending that § 922(g)(1) violates the Second Amendment as applied to him.

The appeal sits within the Fifth Circuit’s post-New York State Pistol & Rifle Association v. Bruen, 597 U.S. 1 (2022) body of cases assessing whether firearm prohibitions are “consistent with this Nation’s historical tradition of firearm regulation.” The key practical question was whether Cordova’s specific criminal history—especially his conviction for evading arrest in a vehicle—places him within a historically supported class of persons who may be disarmed because they present a “credible threat to the physical safety of others.”

2. Summary of the Opinion

Per curiam (judgment of the court)

The court affirmed. Relying on its “well-trod approach” to § 922(g)(1) challenges, the panel held that Cordova’s felony conviction for evading arrest with a motor vehicle is probative of dangerousness and demonstrates a “credible threat to the physical safety of others,” defeating his as-applied Second Amendment challenge.

The panel treated United States v. Simpson, 152 F.4th 611, 614 (5th Cir. 2025) as controlling on the proposition that people pose such a threat when they evade arrest in a motor vehicle. It further underscored the real-world risks of high-speed pursuits (“often catastrophic”), referencing Lange v. California, 594 U.S. 295, 324 (2021) (Roberts, C.J., concurring in the judgment) and an earlier Fifth Circuit characterization of vehicular flight as creating substantial risk, United States v. Lee, 989 F.2d 180, 183 (5th Cir. 1993) (per curiam).

Concurring opinions (not controlling, but doctrinally significant)

• Judge Ho concurred in the judgment while warning that § 922(g)(1)’s breadth (any felony “punishable by imprisonment for a term exceeding one year”), its lifetime duration, and its application even to persons never sentenced to prison can raise “serious constitutional questions.” He highlighted that United States v. Rahimi, 602 U.S. 680 (2024) addressed temporary disarmament of persons found to pose a “credible threat,” and that the Supreme Court expressly did not resolve permanent disarmament. He also noted Cordova did not meaningfully litigate any time-lapse theory in this appeal and pointed to the presentence report’s discussion of drug use, referencing United States v. Connelly, 117 F.4th 269, 277 (5th Cir. 2024).
• Judge Oldham concurred in the judgment but launched a sustained critique of the Fifth Circuit’s framework rooted in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), calling it “historically bankrupt” (echoing his separate writing in United States v. Wilson, ___ F.4th ___, No. 24-10633, 2026 WL 1190659, at *5 (5th Cir. Apr. 30, 2026)). He proposed replacing the circuit’s methodology with a “dangerousness standard” tied to historical traditions of disarming persons deemed dangerous, and concluded that Cordova’s vehicular evasion conviction demonstrates dangerousness even under that alternative approach.

3. Analysis

3.1. Precedents Cited

A. Waiver/preservation after a guilty plea

• Class v. United States, 583 U.S. 174, 178-82 (2018): supports the proposition that a guilty plea does not inherently waive a constitutional challenge to the statute of conviction when properly preserved. The panel used Class to validate appellate review because Cordova raised the as-applied challenge in his motion to dismiss.
• United States v. Gil, No. 23-50525, 2024 WL 2186916 (5th Cir. May 15, 2024) (per curiam): an in-circuit example allowing such challenges to proceed post-plea when preserved.

B. The Fifth Circuit’s as-applied § 922(g)(1) line and “credible threat” framing

• United States v. Diaz, 116 F.4th 458, 462, 471-72 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025): identified by the per curiam as establishing the circuit’s “well-trod approach.” While the per curiam did not re-derive Diaz’s method, it treated Diaz as the operative framework for assessing as-applied challenges. Judge Oldham, by contrast, argued Diaz created doctrinal confusion and weak historical reasoning.
• United States v. Bollock, 123 F.4th 183, 185 (5th Cir. 2024) (per curiam): quoted for the circuit’s recognition of a tradition of disarming individuals whose convictions stem from threats or violence involving firearms. The per curiam used Bollock as a bridge from firearm-related violence to broader violent-offense disarmament.
• United States v. Arredondo, No. 24-50386, 2025 WL 1249901, at *1 (5th Cir. Apr. 30, 2025) (per curiam) (robbery conviction) and United States v. Davis, No. 24-20258, 2025 WL 958265, at *2 (5th Cir. Mar. 31, 2025) (per curiam) (misuse of firearms): cited as examples of extending the disarmament rationale to violent offenses and firearm misuse.
• United States v. Reyes, 141 F.4th 682, 686 (5th Cir. 2025) (per curiam): supplied the “credible threat to the physical safety of others” formulation used to justify disarmament. The per curiam deployed Reyes as a general dangerousness premise; Judge Oldham later emphasized Reyes when debating whether courts may consider broader criminal history.
• United States v. Simpson, 152 F.4th 611, 614 (5th Cir. 2025): treated as the key case translating “credible threat” logic to vehicular evasion, making it effectively dispositive for Cordova.

C. Risk of vehicular flight and real-world dangerousness evidence

• Lange v. California, 594 U.S. 295, 324 (2021) (Roberts, C.J., concurring in the judgment): cited to underscore that “vehicular pursuits” are “often catastrophic,” supporting the inference that vehicular evasion signals dangerousness.
• United States v. Lee, 989 F.2d 180, 183 (5th Cir. 1993) (per curiam): used as additional Fifth Circuit support for characterizing vehicular evasion as posing serious risk.

D. The broader Second Amendment framework and intra-circuit debate (from concurrences)

• New York State Pistol & Rifle Association v. Bruen, 597 U.S. 1 (2022): Judge Oldham relied on Bruen’s rejection of interest-balancing and its demand for historical-tradition justification.
• United States v. Rahimi, 602 U.S. 680 (2024): central to both concurrences—Judge Ho emphasized its “temporary disarmament” language; Judge Oldham quoted its instruction to look to principles underpinning regulatory tradition. Judge Ho also referenced the Fifth Circuit’s earlier Rahimi concurrence: United States v. Rahimi, 117 F.4th 331, 335 (5th Cir. 2024) (Ho, J., concurring).
• United States v. Cockerham, 162 F.4th 500, 505 (5th Cir. 2025): invoked by Judge Ho for the notion that the Fifth Circuit has tried to proceed case-by-case via “relevantly similar” historical practices, and for its admonition that analysis be “guided by history—not hoplophobia.”
• Competing approaches to what conduct may be considered in an as-applied challenge: United States v. Hernandez, 159 F.4th 425, 428 (5th Cir. 2025) (per curiam), United States v. Alaniz, 146 F.4th 1240, 1242 (5th Cir. 2025) (per curiam), United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), and United States v. Orozco, No. 24-50104, 2025 WL 2623429, at *3 (5th Cir. Sept. 11, 2025) (Graves, J., dissenting); Judge Oldham framed these as illustrating doctrinal instability traceable to Diaz.
• Rule-of-orderliness anchor: United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014), used by Judge Oldham to argue earlier panel decisions (e.g., United States v. Reyes, 141 F.4th 682) constrain later panels.
• Sister-circuit comparators and scholarly debate (as cited): Kanter v. Barr, 919 F.3d 437, 461 (7th Cir. 2019) (Barrett, J., dissenting); Range v. Attorney General, 124 F.4th 218, 249 (3rd Cir. 2024) (Phipps, J., concurring); Range v. Att'y Gen. U.S. of Am., 69 F.4th 96, 105 (3d Cir. 2023) (en banc); Pitsilides v. Barr, 128 F.4th 203, 212 (3d Cir. 2025); United States v. Williams, 113 F.4th 637, 657-58 (6th Cir. 2024); United States v. Duarte, 101 F.4th 657 (9th Cir.) (and its subsequent en banc history as described).

3.2. Legal Reasoning

A. The per curiam’s controlling rationale: dangerousness inferred from vehicular evasion

The per curiam proceeds by (1) situating Cordova’s claim within existing Fifth Circuit methodology (citing United States v. Diaz), and then (2) resolving the case through a dangerousness-based application of circuit precedent:

• The court relies on the premise (from United States v. Reyes) that some offenders may be disarmed because they present a “credible threat to the physical safety of others.”
• It then treats vehicular evasion as categorically (or at least strongly) probative of dangerousness, citing United States v. Simpson as already establishing that link.
• Finally, it reinforces the dangerousness inference with practical and doctrinal observations about the catastrophic risks of “vehicular pursuits,” citing Lange v. California and United States v. Lee.

On this reasoning, Cordova’s as-applied challenge fails not because every felony necessarily justifies disarmament, but because his record includes a conviction the court treats as demonstrating danger to others.

B. Judge Ho’s concurrence: flags unresolved constitutional questions about lifetime bans

Judge Ho accepts the judgment but emphasizes a constitutional pressure point the per curiam does not reach: § 922(g)(1) functions as a lifetime firearm ban for all felons, without time limits and even for individuals who served no prison time. He contrasts that breadth with the Supreme Court’s language in United States v. Rahimi, 602 U.S. 680 (2024), which upheld only temporary disarmament of persons found by a court to pose a “credible threat,” and notes Justice Gorsuch’s caution that permanence was not decided.

Importantly, Judge Ho treats these concerns as outside the issues Cordova actually briefed; thus, his concurrence signals doctrinal vulnerability in § 922(g)(1) applications without providing relief here.

C. Judge Oldham’s concurrence: proposes replacing Diaz with a “dangerousness standard,” but reaches the same result

Judge Oldham argues that United States v. Diaz produced a confused and historically unsound approach, criticizing (among other things) reliance on Founding-era capital punishment as a proxy for modern lifetime disarmament and the use of thin or non-analogous historical sources. He proposes a “dangerousness standard” grounded in historical practice: governments historically disarmed those deemed dangerous, though the identity of “dangerous” persons shifted across time.

Applying his proposed standard, Judge Oldham would still affirm because vehicular evasion is “purposeful, violent, and aggressive” and entails serious risk of injury, relying in part on United States v. Harrimon, 568 F.3d 531, 534-35, 537 (5th Cir. 2009) and the same pursuit-risk logic invoked by the per curiam.

3.3. Impact

A. Immediate doctrinal effect in the Fifth Circuit

• Vehicular evasion as a decisive fact: The per curiam opinion cements that a felony conviction for evading arrest with a motor vehicle is strong evidence of “dangerousness” sufficient to defeat an as-applied Second Amendment challenge to § 922(g)(1), particularly given United States v. Simpson.
• Streamlined adjudication: By treating Simpson as controlling and emphasizing the real-world danger of pursuits, the panel supplies a relatively straightforward template: when the predicate record includes vehicular flight, the “credible threat” inquiry is effectively resolved against the defendant.

B. Longer-term pressure points for § 922(g)(1) litigation

• Lifetime disarmament question remains open: Judge Ho’s concurrence highlights potential future challenges aimed not at dangerousness, but at the statute’s lifetime scope, lack of tailoring, and application to nonviolent felons or those never incarcerated—issues he suggests the Supreme Court has not settled.
• Potential en banc or Supreme Court reconsideration of analytic framework: Judge Oldham’s extensive critique of United States v. Diaz and his call to “jettison” it signals internal division. Even if not controlling, such writings can shape future petitions for rehearing en banc and certiorari by framing Diaz as unstable and in tension with Bruen/Rahimi methodology.
• Scope of record considered (predicate-only vs whole history): Oldham’s discussion of United States v. Hernandez, United States v. Alaniz, United States v. Kimble, and United States v. Reyes spotlights a recurring, case-dispositive procedural question: what facts courts may consider when deciding whether a person is constitutionally disarmable.

4. Complex Concepts Simplified

• “As-applied” challenge: A claim that a statute may be valid in general but unconstitutional when applied to a particular person given their specific circumstances (here, Cordova’s history).
• Bruen “historical tradition” test: Under New York State Pistol & Rifle Association v. Bruen, if the Second Amendment covers the conduct, the government must justify a restriction by showing it is consistent with historical firearm regulation tradition.
• “Credible threat to the physical safety of others”: A dangerousness-oriented concept (used in Fifth Circuit cases like United States v. Reyes and invoked alongside United States v. Rahimi) suggesting disarmament is justified when a person’s history indicates real risk of violence or serious harm.
• Lifetime disarmament: § 922(g)(1) generally operates as a permanent firearm prohibition for anyone with a qualifying felony conviction unless rights are restored through separate legal mechanisms; Judge Ho flagged the constitutional significance of permanence.
• Rule of orderliness: A Fifth Circuit doctrine (citing United States v. Traxler) that later panels cannot overrule earlier panel decisions absent intervening higher authority; it matters when panels disagree about what prior cases require.

5. Conclusion

United States v. Cordova reaffirms, as a practical matter, that a prior felony for evading arrest with a motor vehicle places a defendant within the Fifth Circuit’s recognized category of persons who may be disarmed under § 922(g)(1) because the conduct evidences dangerousness and a “credible threat to the physical safety of others.” While the per curiam opinion treats existing circuit precedent—especially United States v. Simpson and United States v. Diaz—as sufficient to resolve the case, the concurrences illuminate significant unresolved constitutional and methodological questions: whether lifetime disarmament for all felons is consistent with the Second Amendment, and whether the Fifth Circuit’s current framework faithfully implements Bruen and Rahimi.