UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE ROSADO, Defendant - Appellant. No. 23-1294 (D.C. No. 1:23-CR -00019-RMR-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , McHUGH , and FEDERICO , Circuit Judges.

________________ _________________ This appeal follows Jose Rosado’s entry of a guilty plea to one count of being a felon in possession of a firearm as proscr ibed by 18 U.S.C. § 922(g)(1). Mr. Rosado challenges his conviction on grounds that § 922(g)(1) is both facia lly unconstitutional and unconstitutional as app lied to him under the framework announced in New York State Rifle & Pistol Asso ciation, Inc. v. Bruen , 142 S. Ct. 2111 (2022). Because our precedent is settled “that Bruen did not indisputably and pellucidly abrogate” our

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Federal Rule of Appellate Procedure 32. 1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 9, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1294 Document: 010111046665 Date Filed: 05/09/2024 Page: 12 precedent confirming the constitutionality of the ban on convic ted felons’ possession of firearms, we affirm Mr. Rosado’s conviction. Vincent v. Garland , 80 F.4th 1197, 1202 (10th Cir. 2023), petition for cert. filed (U.S. Dec. 21, 2023) (No. 23-683).
BACKGROUND On January 9, 2023, following a report that an unknown male had threatened a security guard with a firearm, police officers responded to a McDonald’s in Denver, Colorado. After obtaining a de scription of the individual from the security guard, Denver police searched the are a adjacent to the restaurant and located an individual matching that description, who would later be identifi ed as Mr. Rosado. Denver police arrested Mr. Rosado and found a 9mm magazine loaded with eight rounds of ammunition in his right front pocket. 1 On January 12, 2023, the Government , through an info rmation, charged Mr. Rosado with one violation of § 922(g)(1 ), and on January 17, 2023, a grand jury returned an indictment for the same charg e. On April 3, 2023, Mr. Rosado tendered and the district court accepted his guilty plea, and on September 14, 2023, the district court sentenced Mr. Rosado to a term of 130 months’ imprisonment followed by three years of supervised release. This timely appeal followed.

1 Upon encountering Mr. Rosado in their patrol vehicle, De nver police saw his right hand dip to his side at which point they heard a metallic “clank.” ROA Vol. I at 86. After Mr. Rosado’s arrest, the polic e located a 9mm “pri vately manufactured firearm” (i.e., a so -called “ghost gun” devoid of any serial number) where they had heard the metallic sound “w ith a round chambered and three additional rounds in the seated magazine.” Id. at 87. Mr. Rosado’s guilty plea ad mits only that he possessed the 9mm magazine found in his front pocket. Appellate Case: 23-1294 Document: 010111046665 Date Filed: 05/09/2024 Page: 23 ANALYSIS On appeal, Mr. Rosado asserts both a fac ial and an as-applied challenge to the constitutionality of § 922( g)(1), arguing that under Bruen , that statute cannot withstand Second Amendment scrutiny. Mr . Rosado’s as-applied challenge appears to rest on a contention that under Bruen , § 922(g)(1) is unconstitutional as applied to persons whose prior felony co nvictions were for “nonviolen t offense[s].” Appellant’s Br. at 6 (citing Range v. Att’y Gen. , 69 F.4th 96, 105–06 (3d Cir. 2023) (en banc), petition for cert. filed s ub nom. Garland v. Range (U.S. Oct. 5, 2023) (No. 23-374)). Mr. Rosado concedes that because he did not raise this argument before the district court, we may rev iew it only for plain error. See Fed. R. Crim. P. 52(b). And Mr. Rosado further concedes that he cannot meet th at standard because under existing law, any constitutiona l defect in § 922(g)(1) is not “plain”—that is, neither this court nor the Supreme Court has f ound that statute unc onstitutional in any

measure. See United States v. Koch , 978 F.3d 719, 726 (10th Cir. 2020) (“In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue. ” (quotation mark s omitted)); Vincent , 80 F.4th at 1202 (holding that Bruen did not abrogate our precedent concluding that § 922(g)(1) was constitutional in United States v. McCane , 573 F.3d 1037, 1047 ( 10th Cir. 2009), and that “[u]nder McCane , we have no basis to draw c onstitutional distinctions based on the type of felony involved”). Mr. Ro sado therefore “brings this argument for preservation only.” Appe llant’s Br. at 3. Appellate Case: 23-1294 Document: 010111046665 Date Filed: 05/09/2024 Page: 34 Given Mr. Rosado’s concessions and th e prevailing law, we affirm his conviction for a violat ion of § 922(g)(1).
CONCLUSION For the foregoing reasons, we AFFI RM Mr. Rosado’s conviction.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 23-1294 Document: 010111046665 Date Filed: 05/09/2024 Page: 4