Appellate Case: 21-4121 Document: 133-1 Date Filed: 02/11/2025 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 11, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________________
MELYNDA VINCENT,
Plaintiff - Appellant,
v. No. 21-4121
PAMELA J. BONDI, Attorney
General of the United States,
Defendant - Appellee.
___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:20-CV-00883-DBB)
____________________________________________
Sam Meziani, Goebel Anderson PC, Salt Lake City, Utah (Amberly Page,
Goebel Anderson PC, Salt Lake City, Utah, Jeremy Delicino, Jeremy
Delicino LLC, Salt Lake City, Utah, and Jeffrey T. Green, Green Law
Chartered LLC, Bethesda, Maryland, with him on the briefs), for PlaintiffAppellant.
Kevin Benjamin Soter, Attorney, Appellate Staff (Trina A. Higgins, United
States Attorney, Brian M. Boynton, Principal Deputy Assistant Attorney
General, Mark B. Stern and Michael S. Raab, Attorneys, Appellate Staff,
U.S. Department of Justice, Washington, D.C., with him on the brief), for
Defendant-Appellee.
____________________________________________
Before BACHARACH, KELLY, and CARSON, Circuit Judges.
Pursuant to Fed. R. App. P.43(c)(2), Pamela J. Bondi is substituted
for Merrick B. Garland as the Appellee in this appeal .
Appellate Case: 21-4121 Document: 133-1 Date Filed: 02/11/2025 Page: 2
_____________________________________________
BACHARACH, Circuit Judge.
_____________________________________________
Ms. Melynda Vincent sued the Attorney General, claiming that the
Second Amendment entitles her to possess firearms. We rejected this claim
and dismissed the action. Vincent v. Garland, 80 F.4th 1197, 1200–02 (10th
Cir. 2023). But the Supreme Court vacated our dismissal and remanded for
reconsideration in light of United States v. Rahimi,
602 U.S. 680 (2024).
Vincent v. Garland,
144 S. Ct. 2708 (2024) (mem.). 1 Given this remand,
we’ve freshly considered the Second Amendment claim and conclude that
Rahimi doesn’t undermine the panel’s earlier reasoning or result.
1. Ms. Vincent is prohibited from possessing firearms.
Ms. Vincent was convicted of bank fraud, a federal felony. 18 U.S.C.
§ 1344. This conviction triggered
18 U.S.C. § 922(g)(1), which prohibits
individuals with felony convictions from possessing firearms. Ms. Vincent
claims that the Second Amendment prohibits application of § 922(g)(1) to
nonviolent offenders like herself.
1
The remand doesn’t necessarily signal a disagreement with the
panel’s reasoning or result. See Stephen M. Shapiro et al., Supreme Court
Practice ch. 5, § 5.12(b) (11th ed. 2019); see also Lawrence v. Chater, 516
U.S. 163, 174 (1996) (noting that the Supreme Court was granting
certiorari, vacating the circuit court’s judgment, and remanding given the
uncertainty about “the legal impact of a new development”). So we view
the Supreme Court’s remand as a direction to reassess the validity of our
panel opinion in light of Rahimi.
2
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2. Our precedent renders this prohibition constitutional.
We addressed a similar constitutional challenge to § 922(g)(1) in
United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). There we held
that § 922(g)(1) does not violate the Second Amendment. Id. at 1047. A
precedent like McCane would generally bind us when addressing the same
issue. United States v. Salazar,
987 F.3d 1248, 1254 (10th Cir. 2021). But
an exception exists when the Supreme Court has indisputably and
pellucidly abrogated our precedent. Barnes v. United States,
776 F.3d 1134,
1147 (10th Cir. 2015).
Ms. Vincent argues that the Supreme Court abrogated McCane in
United States v. Rahimi, 602 U.S. 680 (2024). In a non-precedential
opinion, we rejected Ms. Vincent’s reading of Rahimi. United States v.
Curry,
2024 WL 3219693, at *4 n.7 (10th Cir. June 28, 2024)
(unpublished). We do so again.
In McCane, we held that § 922(g)(1) was constitutional, relying on
the Supreme Court’s statement in District of Columbia v. Heller that it was
not “cast[ing] doubt on longstanding prohibitions on the possession of
firearms by felons.” 573 F.3d 1037, 1047 (10th Cir. 2009) (quoting District
of Columbia v. Heller,
554 U.S. 570, 626 (2008)). Rahimi again recognized
the presumptive lawfulness of these longstanding prohibitions, “like those
on the possession of firearms by ‘felons.’” Rahimi,
602 U.S. at 682
(quoting Heller,
554 U.S. at 626, 627 n.26). With this recognition of the
3
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prohibitions as presumptively lawful, three other circuits have held that
Rahimi doesn’t abrogate their earlier precedents upholding the
constitutionality of § 922(g)(1). United States v. Hunt, 123 F.4th 697, 703–
04 (4th Cir. 2024); United States v. Jackson,
110 F.4th 1120, 1125 (8th Cir.
2024); United States v. Hester,
2024 WL 4100901, at *1 (11th Cir. Sept. 6,
2024) (per curiam) (unpublished). 2
The Sixth Circuit has taken a different approach, concluding that its
precedent on § 922(g)(1) is no longer viable. United States v. Williams, 113
F.4th 637, 648 (6th Cir. 2024). For this conclusion, the court relies on
Bruen and Rahimi, which reiterated the need to consult historical analogs.
Id.
We depart from the Sixth Circuit’s approach. Under the Supreme
Court’s order, our sole task is to consider the effect of Rahimi. To do so,
we must follow our prior opinion in McCane unless it has been
2
After Rahimi was decided, the Third and Fifth Circuits recognized
abrogation of their earlier precedents. But to do so, those courts relied on
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)—not Rahimi.
Range v. Att’y Gen. U.S.,
2024 WL 5199447, at *3 (3d Cir. Dec. 23, 2024);
United States v. Diaz,
116 F.4th 458, 465 (5th Cir. 2024). Unlike our court,
those circuits had earlier upheld the constitutionality of gun restrictions by
considering the relationship between § 922(g)(1) and a sufficiently
important governmental interest. United States v. Marzzarella,
614 F.3d 85,
97 (3d Cir. 2010); United States v. Emerson,
270 F.3d 203, 261 (5th Cir.
2001). The Supreme Court rejected that method of analysis in Bruen,
597
U.S. at 26. But McCane had approached the issue differently than the Third
and Fifth Circuits. See p. 3, above. In any event, the remand requires
reconsideration in light of Rahimi, not Bruen.
4
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indisputably and pellucidly abrogated. Barnes v. United States, 776 F.3d
1134, 1147 (10th Cir. 2015).
In McCane, we relied on Heller’s instruction that felon dispossession
laws are presumptively valid. United States v. McCane, 573 F.3d 1037,
1047 (10th Cir. 2009); see p. 3, above. This presumption was reaffirmed in
Rahimi.
602 U.S. at 682. So Rahimi doesn’t clearly abrogate the
presumptive validity of § 922(g)(1). See United States v. Hunt,
123 F.4th
697, 703 (4th Cir. 2024) (concluding that “nothing in Bruen or Rahimi”
would undermine the Fourth Circuit’s earlier reliance on Heller to uphold
the constitutionality of § 922(g)(1)).
One district court in our circuit ruled that Rahimi had overturned
McCane, relying on the absence of a historical inquiry. United States v.
Forbis, 2024 WL 3824642, at *4–5 (N.D. Okla. Aug. 14, 2024). But that
court and three other district courts have elsewhere concluded that McCane
remains binding after Rahimi.
Case Is McCane abrogated
by Rahimi?
United States v. Rodish, 2024 WL 4905716, at No.
*3 (D. Colo. Nov. 27, 2024)
United States v. Hawkins,
2024 WL 4751401, No.
at *4 (D. Kan. Nov. 12, 2024)
United States v. Sutton,
2024 WL 3932841, at No.
*4 (N.D. Okla. Aug. 23, 2024)
United States v. Harris,
2024 WL 3571756, at No.
*4 (W.D. Okla. July 29, 2024)
5
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We too conclude that McCane remains binding.
3. McCane applies to nonviolent as well as to violent offenders.
Ms. Vincent argues, however, that the Second Amendment protects
nonviolent offenders like herself. But this argument is unavailable under
McCane. There we upheld the constitutionality of § 922(g)(1) without
drawing constitutional distinctions based on the type of felony involved.
See In re: United States, 578 F.3d 1195, 1200 (10th Cir. 2009)
(unpublished) (stating that McCane had “rejected the notion that Heller
mandates an individualized inquiry concerning felons pursuant to
§ 922(g)(1)”) 3; accord United States v. Jackson,
110 F.4th 1120, 1125 (8th
Cir. 2024) (concluding “that there is no need for felony-by-felony
litigation regarding the constitutionality of § 922(g)(1)”). McCane instead
upheld the constitutionality of § 922(g)(1) for all individuals convicted of
felonies. See p. 3, above. Under McCane, the Second Amendment doesn’t
prevent application of § 922(g)(1) to nonviolent offenders like
Ms. Vincent. So we readopt our prior opinion and affirm the dismissal. 4
3
In re: United States is persuasive but not precedential. 10th Cir.
R. 32.1(A).
4
Ms. Vincent also requests that we sua sponte engage in en banc
review to reassess our pre-Bruen precedent. But the panel can’t order en
banc consideration. See Fed. R. App. R. 40(a) (eff. Dec. 1, 2024). And
Ms. Vincent hasn’t filed a petition for en banc consideration.
6
