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.) 

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ORDER AND JUDGMENT*

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Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. 

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This appeal follows Jose Rosado’s entry of a guilty plea to one count of being 

a felon in possession of a firearm as proscribed by 18 U.S.C. § 922(g)(1). Mr. Rosado 

challenges his conviction on grounds that § 922(g)(1) is both facially unconstitutional 

and unconstitutional as applied to him under the framework announced in New York 

State Rifle & Pistol Association, 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 appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent 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: 1
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precedent confirming the constitutionality of the ban on convicted 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 description of the individual from the security guard, 

Denver police searched the area adjacent to the restaurant and located an individual 

matching that description, who would later be identified 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 information, charged 

Mr. Rosado with one violation of § 922(g)(1), and on January 17, 2023, a grand jury 

returned an indictment for the same charge. 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, Denver 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 police located a 9mm “privately manufactured 

firearm” (i.e., a so-called “ghost gun” devoid of any serial number) where they had 

heard the metallic sound “with a round chambered and three additional rounds in the 

seated magazine.” Id. at 87. Mr. Rosado’s guilty plea admits only that he possessed 

the 9mm magazine found in his front pocket. 

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ANALYSIS 

On appeal, Mr. Rosado asserts both a facial 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 convictions were for “nonviolent 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 sub 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 review it only for plain error. See Fed. R. Crim. P. 52(b). And 

Mr. Rosado further concedes that he cannot meet that standard because under 

existing law, any constitutional defect in § 922(g)(1) is not “plain”—that is, neither 

this court nor the Supreme Court has found that statute unconstitutional 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 marks 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 constitutional distinctions based on 

the type of felony involved”). Mr. Rosado therefore “brings this argument for 

preservation only.” Appellant’s Br. at 3. 

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Given Mr. Rosado’s concessions and the prevailing law, we affirm his 

conviction for a violation of § 922(g)(1). 

CONCLUSION 

For the foregoing reasons, we AFFIRM Mr. Rosado’s conviction. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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