Virginia Code § 18.2-53.1 (Use of a Firearm) Is Not a “Crime of Violence” for USSG § 2K2.1(a)(4)(A) When Tethered to Virginia Robbery

I. Introduction

In United States v. Rashad Ebron (4th Cir. July 20, 2026) (unpublished, per curiam), the Fourth Circuit addressed three recurring issues in federal felon-in-possession prosecutions under 18 U.S.C. § 922(g)(1): (1) post-New York State Rifle & Pistol Ass'n v. Bruen Second Amendment challenges to § 922(g)(1); (2) sufficiency of the evidence of “possession” (here, constructive possession in a vehicle); and (3) whether a prior Virginia conviction under Va. Code § 18.2-53.1 (use of a firearm in the commission of a felony, here robbery) qualifies as a “crime of violence” that increases the base offense level under U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2023).

The parties were the United States of America (appellee) and Rashad Laroy Ebron (appellant). Ebron was convicted by a jury of being a felon in possession of a firearm and ammunition. He received a 48-month sentence, which he challenged on Guidelines-calculation grounds.

II. Summary of the Opinion

  • Conviction affirmed. The court held Ebron’s Second Amendment challenge to § 922(g)(1) was foreclosed by binding circuit precedent, and that the evidence was sufficient (under forfeiture/plain-error standards) to support constructive possession of the firearm.
  • Sentence vacated and remanded. Relying on its intervening decision in United States v. Scott, the court held the district court procedurally erred by treating Ebron’s prior Va. Code § 18.2-53.1 conviction (use of a firearm in a robbery) as a “crime of violence” for purposes of USSG § 2K2.1(a)(4)(A).

The disposition was: affirmed in part, vacated in part, and remanded.

III. Analysis

A. Precedents Cited

1. Second Amendment / § 922(g)(1) after Bruen

  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022): Ebron invoked Bruen to argue § 922(g)(1) is unconstitutional facially and as applied. The panel did not re-litigate Bruen’s merits; it treated Bruen as the backdrop to a question controlled by circuit precedent.
  • United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025): The key gatekeeping precedent. The panel cited Hunt for the proposition that, absent a claim that the disqualifying convictions were pardoned or found unconstitutional/unlawful, Bruen-based challenges to § 922(g)(1) are foreclosed in the circuit.
  • United States v. Canada, 123 F.4th 159 (4th Cir. 2024): Reinforced the same point: § 922(g)(1) challenges of this kind are precluded by circuit law.
  • United States v. Runyon, 994 F.3d 192 (4th Cir. 2021): Cited for the panel-rule principle—one panel cannot overrule another—explaining why the court would not revisit Hunt/Canada in this appeal.

2. Sufficiency of the evidence and constructive possession

  • United States v. Hicks, 64 F.4th 546 (4th Cir. 2023): Provided the elements of § 922(g)(1), focusing the appeal on “possession.”
  • United States v. Speed, 175 F.4th 272 (4th Cir. 2026): Supplied the deferential sufficiency standard and the principle that the appellate court asks only whether a reasonable jury could find guilt beyond a reasonable doubt, drawing inferences in the Government’s favor.
  • United States v. Watkins, 111 F.4th 300 (4th Cir. 2024): Critical to the standard of review. Because Ebron failed to renew his Rule 29 motion after presenting evidence or after the verdict, Watkins treated the claim as forfeited and reviewable only to prevent a “manifest miscarriage of justice,” which the opinion equated to plain-error framing for insufficiency claims.
  • United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc): Cited for the clarification that “manifest miscarriage of justice” is essentially a formulation of plain-error review as applied to sufficiency challenges.
  • United States v. Lawing, 703 F.3d 229 (4th Cir. 2012): Established the dichotomy of actual vs. constructive possession.
  • United States v. Moody, 2 F.4th 180 (4th Cir. 2021): The primary constructive-possession authority used here. Moody supplied (a) the definition (dominion/control plus knowledge), (b) the “totality of circumstances” approach, and (c) the inference that a vehicle’s driver has knowledge of contraband within it.
  • United States v. Herder, 594 F.3d 352 (4th Cir. 2010): Quoted within Moody for the constructive possession definition.
  • United States v. Blue, 808 F.3d 226 (4th Cir. 2015): Emphasized that “mere proximity” is insufficient—important because the defense narrative was that the gun “slid” into view.
  • United States v. Freitekh, 114 F.4th 292 (4th Cir. 2024) and United States v. Huskey, 90 F.4th 651 (4th Cir. 2024): Reinforced how rare reversals for insufficiency are and restated the “any rational trier of fact” standard.

3. Sentencing—crime-of-violence classification for USSG § 2K2.1(a)(4)(A)

  • United States v. Scott, 176 F.4th 806 (4th Cir. 2026): The decisive precedent for resentencing. The panel held the case in abeyance pending Scott and then applied Scott’s holding that “neither Virginia robbery nor Virginia Code § 18.2-53.1—alone or in combination—have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’” As a result, Ebron’s prior § 18.2-53.1 conviction could not support the higher base offense level under § 2K2.1(a)(4)(A).

B. Legal Reasoning

1. Why the Second Amendment challenge failed

The court treated Ebron’s Bruen-based facial and as-applied challenges as legally unavailable under existing Fourth Circuit precedent. The opinion specifically noted Ebron did not contend that his disqualifying convictions were pardoned or that the underlying criminal statutes had been found unconstitutional or otherwise unlawful—conditions that, under United States v. Hunt, matter to whether a defendant can pursue this category of Second Amendment claim in the circuit. Because United States v. Canada and Hunt controlled, and because the panel could not overrule those decisions (United States v. Runyon), the court affirmed the conviction on this issue without reaching a fresh Bruen merits analysis.

2. Why the sufficiency challenge failed

The opinion’s sufficiency analysis proceeded in two steps:

  1. Standard-of-review tightening due to forfeiture. Under Fed. R. Crim. P. 29 and United States v. Watkins, Ebron’s failure to renew his motion for judgment of acquittal converted a typical sufficiency review into a much steeper, forfeiture-based inquiry (described as “manifest miscarriage of justice” and aligned with plain-error review, with support from United States v. Delgado).
  2. Constructive possession under a totality of circumstances. Applying United States v. Moody (and related constructive-possession cases), the court held a rational juror could find knowledge and dominion/control based on: (a) Ebron being the driver and sole occupant, (b) the firearm being plainly visible on the driver’s-side floorboard, and (c) circumstantial evidence suggesting evasive conduct—exiting immediately during the stop, locking the car, and misleading officers about the location of keys and identification (both found during search incident to arrest). While recognizing United States v. Blue (mere proximity insufficient), the court concluded that this record supplied more than proximity and did not present the “rare case” warranting reversal (United States v. Freitekh; United States v. Huskey).

3. Why the sentence was vacated

The district court applied USSG § 2K2.1(a)(4)(A), setting a base offense level of 20 on the theory that Ebron’s 2016 conviction under Va. Code § 18.2-53.1 (use of a firearm in the commission of a robbery) was a “crime of violence.” After United States v. Scott, that classification was incorrect as a matter of Fourth Circuit law. The opinion framed this as procedural error in Guidelines calculation—an error requiring vacatur and remand for resentencing. The court also noted the district court did not have the benefit of Scott at the time of the original sentencing.

C. Impact

  • Immediate Guidelines impact in the Fourth Circuit. For defendants sentenced under USSG § 2K2.1(a)(4)(A), United States v. Rashad Ebron operationalizes United States v. Scott: a prior Va. Code § 18.2-53.1 conviction tied to Virginia robbery cannot be used to trigger the higher base offense level on the ground it is a “crime of violence.”
  • Continued foreclosure of many Bruen-based § 922(g)(1) arguments (within the circuit). The decision underscores that, unless and until the Fourth Circuit sitting en banc or the Supreme Court changes course, panels will treat Second Amendment challenges to § 922(g)(1) as controlled by United States v. Hunt and United States v. Canada on the facts described.
  • Trial practice signal: preserve Rule 29 motions. The opinion illustrates the real appellate cost of not renewing a Rule 29 motion: sufficiency arguments can become functionally plain-error review, making reversal exceptionally unlikely.
  • Persuasive, not binding. Because the opinion is unpublished, it is “not binding precedent” in the Fourth Circuit; its principal doctrinal force comes from its application of binding authorities (especially Scott, Hunt, and Moody).

IV. Complex Concepts Simplified

  • Facial vs. as-applied challenge: A facial challenge argues a law is unconstitutional in all (or nearly all) applications; an as-applied challenge argues the law is unconstitutional as applied to this particular defendant’s circumstances.
  • Constructive possession: You can “possess” a firearm without holding it. Constructive possession generally requires (1) knowing the firearm is there and (2) having the ability and intent to exercise control over it (often shown through control of the vehicle or location plus circumstantial evidence).
  • Rule 29 preservation: A defendant who moves for acquittal at the close of the Government’s case but then presents evidence typically must renew the motion at the close of all evidence (and/or after verdict) to preserve full sufficiency review on appeal.
  • Plain error / “manifest miscarriage of justice” in this setting: When an argument is forfeited, the appellate court will not reverse unless the error is clear under current law and seriously affects substantial rights and the fairness/integrity of proceedings—an especially difficult standard for sufficiency challenges.
  • “Crime of violence” (Guidelines context): Certain Guidelines provisions increase sentencing ranges if a prior offense qualifies as a “crime of violence,” typically requiring that the offense has as an element the use, attempted use, or threatened use of physical force against another person. After United States v. Scott, Virginia robbery and Va. Code § 18.2-53.1 (alone or together) do not satisfy that elements-based definition for the enhancement applied here.

V. Conclusion

United States v. Rashad Ebron is a straightforward but instructive Fourth Circuit decision with three key takeaways: (1) Bruen-inspired constitutional challenges to 18 U.S.C. § 922(g)(1) remain foreclosed in the circuit under United States v. Hunt and United States v. Canada on the facts presented; (2) constructive possession in a vehicle can be proven through circumstantial evidence and reasonable inferences, especially when the defendant is the sole driver and engages in conduct suggesting concealment or evasion; and (3) most significantly for sentencing, applying United States v. Scott, a prior conviction under Va. Code § 18.2-53.1 connected to Virginia robbery cannot support the higher base offense level under USSG § 2K2.1(a)(4)(A), requiring resentencing when that enhancement was used.