PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA,

 Plaintiff - Appellant, 

v. 

JONATHAN ALEXANDER MORALESLOPEZ, 

Defendant - Appellee.

No. 22-4074 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF UTAH 

(D.C. No. 2:20-CR-00027-JNP-1)

_________________________________ 

Nathan Jack, Assistant United States Attorney (Trina A. Higgins, United States Attorney, 

and Jennifer P. Williams, Assistant United States Attorney, on the briefs), Salt Lake City, 

Utah, for Plaintiff-Appellant. 

Scott Keith Wilson, Federal Public Defender (Jessica Stengel and Bretta Pirie, Assistant 

Federal Public Defenders, with him on the brief), Salt Lake City, Utah, for DefendantAppellee. 

_________________________________ 

Before CARSON, BALDOCK, and EBEL, Circuit Judges. 

_________________________________ 

BALDOCK, Circuit Judge. 

________________________________ 

Federal law prohibits certain people from possessing firearms. 18 U.S.C. 

§ 922(g). The portion of § 922(g) at issue in this appeal is subsection (g)(3), which 

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2024

Christopher M. Wolpert

Clerk of Court

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in relevant part forbids any person “who is an unlawful user of . . . any controlled 

substance” from possessing a firearm. A jury convicted Defendant Jonathan Morales 

of violating § 922(g)(3). But post-trial, the district court granted Defendant’s motion 

to dismiss the charge as violative of the Fifth Amendment’s Due Process Clause. 

U.S. Const. amend. V. According to the district court, subsection (g)(3)’s phrase 

“unlawful user” was unconstitutionally vague both on its face and as applied to the facts 

underlying Defendant’s conviction. United States v. Morales-Lopez, 2022 WL 2355920 

(D. Utah 2022) (unpublished). The Government appeals. Exercising jurisdiction 

pursuant to 18 U.S.C. § 3731, we first hold, based on binding precedent, that the district 

court erred in considering whether § 922(g)(3) was unconstitutional on its face. We 

further hold, again based on binding precedent, that the district court erred in determining

§ 922(g)(3) was unconstitutional as applied to Defendant’s criminal conduct. 

Accordingly, we reverse and remand with instructions to reinstate the jury’s verdict.1

I.

Let us begin with the facts established at trial. Defendant Morales and Jose 

Amaya were partners in crime. On January 10, 2020, the two men were stealing firearms 

and ammunition from the Sportsman’s Warehouse in Midvale, Utah during morning

business hours. Amaya served as point man and Defendant as lookout. Store employees 

1

 In United States v. Wilson, 420 U.S. 332, 344–45 (1975), the Supreme Court 

explained: “[W]here appellate review would not subject the defendant to a second 

trial, this Court has held that an order favoring the defendant could constitutionally 

be appealed by the Government. . . . Since reversal on appeal would merely reinstate 

the jury’s verdict, review of such an order does not offend the policy against multiple 

prosecution.” In other words, “where there is no threat of either multiple punishment 

or successive prosecutions, the Double Jeopardy Clause is not offended.” Id. at 344.

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observed the two men on security video and phoned police. While Amaya gathered the 

ware, Defendant moved to the front of the store. Defendant exited the store and walked

west, away from the parking lot. Amaya’s Nissan Altima, in which the two suspects had 

arrived, was parked across the street in a handicap space directly in front of the store.

Meanwhile, a number of officers responded to the call of a robbery in progress. 

Dispatch informed officers that Defendant was leaving the store. Sergeant Chacon and 

Officer Wathen arrived on scene about the same time. Sergeant Chacon “observed a 

Hispanic male dressed in a black jacket, jeans, and a black hat which fit the description 

given.” The two officers ordered Defendant to the ground and he complied. During a 

Terry frisk, Officer Wathen recovered a loaded semiautomatic .40 caliber Smith & 

Wesson Shield handgun from Defendant’s waistband.2

 Investigation revealed Amaya 

had stolen the firearm found on Defendant from the same Sportsman’s Warehouse five 

days earlier on January 5. Officer Wathen handcuffed Defendant and placed him in the 

backseat of his patrol car.

About the same time, Officer Jonkman arrived on the scene and parked his vehicle 

directly behind Amaya’s Nissan to “block it in.” While providing “over-watch security,” 

Jonkman witnessed Defendant acting suspiciously. Officer Jonkman testified:

So I went back over by Officer Wathen’s patrol car. And shortly later I 

noticed [Defendant] in the back of the patrol car making some extreme 

movements. To me it kind of worried me, believing that maybe . . . 

somebody missed a weapon or something on him. But it looked like he 

was trying to maneuver something.

2

 During this time, other responding officers were inside the Sportsman’s Warehouse 

arresting Amaya and dispossessing him of stolen firearms and ammunition.

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So I actually moved myself to the front of the patrol car and spoke to other 

officers and said, hey, something’s going on in there. And it was 

determined that . . . [Defendant] was going to be taken out of the car and 

another search be done. . . .

After he was taken out of the car, I noticed in between the back cushion of 

the seat and the bottom cushion a plastic bag sticking out about two inches, 

sticking out from in between the seats.

Between the cushions behind where Defendant had been sitting, Officer Jonkman 

recovered a plastic baggy containing about 5.7 grams of methamphetamine. Detective 

Davis testified that in his opinion, in the absence of other evidence or factors indicating 

an intent to distribute, the 5.7 grams was intended for personal use. Officer Wathen 

additionally testified that his standard practice was to inspect and clean the backseat of 

his patrol car after an individual had occupied and vacated the seat. Wathen confirmed 

no one other than Defendant had been in the backseat of his patrol car that day.

After securing Defendant and Amaya, officers turned their attention to Amaya’s

Nissan Altima. Officer Bartholomew testified he saw what looked to be a glass pipe used 

for smoking drugs in the vehicle’s center console. Once officers impounded the vehicle 

and obtained a search warrant, they recovered the glass pipe which contained

methamphetamine residue. Officers also recovered a butane lighter and baggy containing 

about 22.7 grams of methamphetamine from the driver’s door panel. This amount of 

methamphetamine, according to Detective Davis, “without other factors or indicators,” 

was “consistent with distribution.”

Two months later, while Defendant was in custody awaiting trial, Officer 

Atkin interviewed him regarding a separate investigation apparently involving a drug 

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house and a drug dealer named Jesus. During this conversation, Defendant admitted to 

using drugs regularly in early December 2019, about a month prior to his arrest at the 

Sportsman’s Warehouse. Defendant confirmed that he went to a house to use 

methamphetamine on the day in question, but his memory was unclear because he had 

been using and had not slept for a number of days. Defendant did not know who owned 

the house. Defendant mentioned he was purchasing user amounts of methamphetamine

from Jesus around the same time. Defendant told Officer Atkin “yes, I have been—was 

buying from him.” Defendant continued: “I would see [Jesus] on the street . . . there 

were always people that I knew that would see me . . . , and they would ask me, ‘Hey, 

you want some?’ I would say, ‘Yes.’” Defendant also told Officer Atkin that he had 

smoked marijuana, still illegal in Utah, with Amaya at the latter’s invitation around 

December 6.

II.

At trial, the district court instructed the jury that an “unlawful user” of a controlled 

substance as the language appears in § 922(g)(3) is an individual who “had been using a 

controlled substance on a regular and ongoing basis at the time he was found to be in 

possession of a firearm.” After the jury returned a verdict of guilty based on the 

foregoing evidence, the district court granted Defendant’s motion to dismiss the 

§ 922(g)(3) count because, in the court’s view, subsection (g)(3) was unconstitutionally 

vague both on its face and as applied. Because the district court granted Defendant’s 

motion to dismiss as a matter of law upon an uncontested trial record, we review both its

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constitutional rulings de novo. United States v. Wenger, 427 F.3d 840, 851 (10th Cir. 

2005); see also United States v. Copeland, 921 F.3d 1233, 1241 (10th Cir. 2019).

A.

Addressing Defendant’s facial challenge first, we observe that for over a century

federal courts have adjudicated challenges to the constitutionality of penal statutes by 

relying on the general rule that a defendant to whose conduct a statute clearly applies 

may not pose a facial challenge to the statute. See, e.g., Broadrick v. Oklahoma, 413 U.S. 

601, 610 (1973) (citing cases). In other words, “[a] plaintiff who engages in some 

conduct that is clearly proscribed cannot complain of the vagueness of the law as applied 

to the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) 

(quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). 

Even where a statute threatens to chill the fundamental right to speech, a “plaintiff whose 

speech is clearly proscribed cannot raise a successful vagueness claim” to the face of the 

statute. Expressions Hair Design v. Schneiderman, 581 U.S. 37, 48 (2017) (quoting 

Holder, 561 U.S. at 20).

All this makes perfectly good sense. The “first essential of due process of law” is 

grounded in the principle that where a person of ordinary intelligence may reasonably 

understand that the law proscribes his own conduct, criminal responsibility justifiably

may follow. United States v. Davis, 139 S. Ct. 2319, 2325 (2019). “Void for vagueness 

simply means that criminal responsibility should not attach where one could not 

reasonably understand that his contemplated conduct is proscribed.” Parker v. Levy, 417 

U.S. 733, 757 (1974) (quoting United States v. Harriss., 347 U.S. 612, 617 (1954)). 

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After all, why should one to whom application of a statute is plainly constitutional be 

allowed to attack the law for the reason that it might be unconstitutionally vague when 

applied to hypothetical facts not before the court?

Where the text of a statute applies to a violator’s conduct, either by its plain 

language or “settled interpretations,” these “violators certainly are in no position to say 

that they had no adequate advance notice that they would be visited with punishment. 

They are not punished for violating an unknowable something.” United States v. Lanier, 

520 U.S. 259, 267 (1997) (internal brackets, ellipses, and quotation marks omitted). As 

the Supreme Court has explained: “Embedded in the traditional rules governing 

constitutional adjudication is the principle that a person to whom a statute may 

constitutionally be applied will not be heard to challenge that statute on the ground that it 

may conceivably be applied unconstitutionally to others, in other situations not before the 

Court.” Broadrick, 413 U.S. at 610 (emphasis added). We have long heeded this 

admonition.

Consider United States v. Reed, 114 F.3d 1067 (10th Cir. 1997), where we

addressed the very same facial challenge to § 922(g)(3) that confronts us today. We

applied this traditional rule of constitutional adjudication to conclude that a vagueness 

challenge to § 922(g)(3) “cannot be aimed at the statute on its face but must be limited to 

the application of the statute to the particular conduct charged.” Id. at 1070. We 

explained the traditional rule applied “except in those rare instances where a legislature 

has enacted a statute which is so totally vague as to ‘proscribe[] no comprehensible 

course of conduct at all.’” Id. at 1070 n.1 (emphasis added) (quoting United States v. 

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Powell, 423 U.S. 87, 92 (1975)). But, we reasoned, § 922(g)(3) was not such a statute 

because it was “susceptible of a construction which would avoid the vagueness problem.” 

Id. at 1071.

Although our decisions in this area have not wavered from these principles of 

construction, the district court had a different perspective. In Johnson v. United States, 

576 U.S. 591 (2015), the Supreme Court held that the residual clause of the Armed 

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), specifically its definition of a “violent 

felony,” was unconstitutionally vague for the purpose of sentencing enhancement. The

district court became the first and to date only federal court to read Johnson as

overturning a significant number of Supreme and Circuit Court precedents and telling us

facial challenges to criminal statutes are now readily available to defendants. MoralesLopez, 2022 WL 2355920, at *5 (opining that Johnson “allows a defendant to bring a 

facial challenge without regard to the particular facts of his case”). But neither Johnson

nor its progeny can reasonably be read to support the district court’s conclusion.

3

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding a residual clause, 18 U.S.C. § 16(b), 

defining “crime of violence” unconstitutionally vague); United States v. Davis, 139 S. Ct. 

2319 (2019) (holding a residual clause, 18 U.S.C. § 924(c)(3)(B), defining “crime of 

violence” unconstitutionally vague).

3

 The Circuit Courts of Appeals to have addressed the question are uniform in their 

rejection of the district court’s view. At least seven Circuits have stated that Johnson

did not affect the traditional rule that a facial vagueness challenge cannot be lodged 

against a statute. Rather, a vagueness challenge requires application of the statute to the 

facts of the particular case. See United States v. Lewis, __ F. Supp. 3d __, __, 2023 

WL 4604563, at *3 (S.D. Ala. 2023) (citing decisions from the Fourth, Fifth, 

Seventh, Eighth, Ninth, Tenth, and Federal Circuits).

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The explanation is straightforward. These Supreme Court cases applied the socalled “categorical approach” to address the constitutionality of residual clauses

providing for sentencing enhancements. See Taylor v. United States, 495 U.S. 575, 600 

(1990). Under the categorical approach, a court assesses whether a crime qualifies for an 

enhanced sentence “in terms of how the law defines the offense and not in terms of how 

an individual offender might have committed it on a particular occasion.” Johnson, 576 

U.S. at 596 (internal quotation marks omitted). To determine whether the crime with 

which a defendant was charged was subject to a sentencing enhancement under the 

residual clauses, courts “had to disregard how the defendant actually committed his 

crime. Instead, [courts] were required to imagine the idealized ‘ordinary case’ of the 

defendant’s crime and then guess whether . . . [the level of risk specified by the residual 

clause] would attend its commission.” Davis, 139 S. Ct. at 2326 (emphasis added). 

These Supreme Court decisions “teach that imposition of criminal punishment can’t be 

made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined 

‘ordinary case.’” Id.

Section 922(g)(3) has little in common with the respective residual clauses at issue 

in Johnson, Dimaya, and Davis. Such clauses are sui generis. Unlike § 922(g)(3), the 

residual clauses at issue in these Supreme Court decisions, as a matter of statutory 

construction, did not permit the Court to apply the clauses’ proscribed course of conduct

to the actual facts of the defendant’s case. This is the critical distinction between those 

cases and the present one. In a routine vagueness challenge such as presented here, a 

court applies a statutory prohibition to the defendant’s “real-world” conduct. Because the 

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residual clauses in Johnson, Dimaya, and Davis did not permit the district court to 

consider the defendants’ actual conduct to determine the propriety of a sentencing 

enhancement, the traditional rule that a defendant to whose actual conduct a statute 

clearly applies may not successfully challenge it for vagueness is entirely beside the 

point. The Supreme Court’s observation in Davis, 139 S. Ct. at 2327, confirms our 

conclusion: “[A] case specific approach would avoid the vagueness problems that 

doomed the statutes in Johnson and Dimaya. In those cases, we recognized that there 

would be no vagueness problem with asking a jury to decide whether a defendant’s ‘realworld conduct’ created [the modicum of risk of physical violence called for by the 

residual clauses].”

Understandably then, neither Johnson, Dimaya, nor Davis had reason to address, 

let alone question, the indelible rule that a defendant whose own conduct is clearly 

prohibited by a penal statute cannot pose a facial challenge to the statute. The district 

court misread Johnson to “allow[] the defendant . . . to mount a facial attack on the 

residual clause without any showing that it was unconstitutional as applied to him.” 

Morales-Lopez, 2022 WL 2355920, at *4 (emphasis added). The Supreme Court was 

quite clear, however, that the residual clause as Congress wrote it did not permit the 

Court to consider the facts underlying the defendant’s crime. Johnson, 576 U.S. at 603–

04. And neither did the residual clauses in Dimaya or Davis. Dimaya, 138 S. Ct. at 

1216–18 (plurality); Davis, 139 S. Ct. at 2327–29.

In reaching its conclusion, the district court relied on the Supreme Court’s 

statement in Johnson that, contrary to language in some of its earlier opinions, a

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purportedly vague statute is not necessarily constitutional on its face “merely because 

there is some conduct that clearly falls within the provision’s grasp.” Johnson, 576 U.S. 

at 602. According to the district court, “[b]ecause Johnson clarified that a statute can be 

facially void even if it could be constitutional under some factual scenarios, it stands to 

reason that defendants are no longer required to show that a statute is unconstitutional as 

applied to the facts of their cases.” Morales-Lopez, 2022 WL 2355920, at *4. But we

explained in 303 Creative LLC v. Elenis, 6 F.4th 1160, 1190 (10th Cir. 2021), rev’d on 

other grounds, 143 S. Ct. 2298 (2023), a decision the district court never referenced, that 

the Court’s language in Johnson “described the standard for determining whether a 

statute is, as a matter of law, unconstitutionally vague—not the standard for determining 

when a party may bring a vagueness challenge.”

In other words, the Johnson Court’s view that a statute need not be 

unconstitutional in all its applications for the statute to be vague on its face addresses 

what a defendant must show, or perhaps more accurately need not show, to wage a 

successful facial challenge where available. This bears upon a defendant’s burden of

proof. This says nothing about who may raise a facial challenge.4

 We opined as much in

4

 Prior to the district court’s decision, the three Circuit Courts to have addressed the 

matter post Johnson effectively rejected the district court’s reasoning and upheld the 

traditional rule of constitutional construction in cases involving facial challenges to 

§ 922(g)(3). United States v. Hasson, 26 F.4th 610, 619 (4th Cir. 2022) 

(“Johnson[‘s] . . . rejection of the vague-in-all-its-applications standard does not 

undermine the rule prohibiting defendants whose conduct a statute clearly proscribes 

from bringing vagueness challenges.”); United States v. Cook, 970 F.3d 866, 877 (7th 

Cir. 2020) (“Johnson did not alter the general rule that a defendant whose conduct is 

clearly prohibited by a statute cannot be the one to make a facial vagueness 

challenge.”); United States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (Per 

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Elenis, where we concluded the district court “correctly relied on Expressions Hair 

Design [137 S. Ct. at 1151–52] . . . , a case decided after Johnson, in which the Supreme 

Court reaffirmed that ‘a plaintiff whose speech is proscribed cannot raise a successful 

vagueness claim.’”5

 Elenis, 6 F.4th at 1190. If this is true in the First Amendment 

context, surely it is true in other contexts not calling for application of the “categorical

approach.”

In sum, the district court erred when it considered Defendant’s facial challenge to 

§ 922(g)(3) based upon its view that the Supreme Court in Johnson upended the 

traditional rule that a defendant whose conduct is clearly prohibited by a statute cannot 

pose a facial challenge to the statute while ignoring his own conduct. The Supreme Court 

does not lightly overturn its own precedents and certainly not with language that—if the 

district court’s reading of Johnson were to prevail—could only be described as cryptic. 

Any change to a canon that the Supreme Court has “[e]mbedded in the traditional rules of 

constitutional adjudication,” Broadrick, 413 U.S. at 610, and whose foundation rests in 

Curiam) (“Though [after Johnson a defendant] need not prove that § 922(g)(3) is 

vague in all its applications, our case law still requires him to show that the statute is 

vague as applied to his particular conduct.”). Both the Fourth and Seventh Circuits’ 

decisions, in particular, explain in much detail why today we reach a result consistent 

with their own. We do not create circuit splits without “sound reason” to do so and 

most assuredly no such reason exists in this case. United States v. Thomas, 939 F.3d 

1121, 1130–31 (10th Cir. 2019).

5

 The Supreme Court’s decision in Elenis did not address this point. Making the 

district court’s failure to reference our decision in Elenis all the more puzzling is the 

fact that at the time the district court rendered its opinion in the present case, the 

Supreme Court had not yet rendered its decision in Elenis, thus making the entirety 

of our decision in Elenis still good law at that point—and clearly binding on the 

district court.

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years of Supreme Court precedent must come in no uncertain terms from the Supreme 

Court itself. To tell us when its longstanding precedents, precedents on which inferior 

federal courts have long relied, are no longer good law is the sole prerogative of the 

Supreme Court. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s 

prerogative alone to overrule . . . its precedents.”).

B.

This leaves us with Defendant’s as-applied challenge to § 922(g)(3). The district 

court recognized it need not reach Defendant’s as-applied challenge after ruling the 

statute was unconstitutionally vague on its face. The court continued on, however,

explaining that “if forced to review [§ 922(g)(3)] under an as-applied challenge, the court 

would find the statute is vague as applied to [Defendant’s] conduct because the statute 

does not provide adequately clear notice to an ordinary person that possessing a gun five 

weeks after using drugs is prohibited conduct.” Morales-Lopez, 2022 WL 2355920, at 

*12. According to the district court, the Government presented no evidence at trial that 

Defendant “actually used drugs at any point in the five weeks leading up to his arrest.” 

Id. The entirety of the trial evidence and reasonable inferences to be drawn therefrom, 

properly considered in view of the governing law, however, tell a different tale.

“When the validity of a[] [statute] is drawn in question, and even if a serious doubt 

of constitutionality is raised, it is a cardinal principle that [courts] will first ascertain 

whether a construction of the statute is fairly possible by which the question may be 

avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932). To narrow the meaning of “user” 

and eliminate the risk that § 922(g)(3) could be vague in its application, federal appeals 

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courts, consistent with our view in Reed that the statute was susceptible to a narrowing 

construction, 114 F.3d at 1071, have interpreted § 922(g)(3) so a defendant may be 

convicted thereunder only if the Government “introduced sufficient evidence of a 

temporal nexus between the drug use and firearm possession.” United States v. Edwards, 

540 F.3d 1156, 1163 (10th Cir. 2008); see also United States v. Carnes, 22 F.4th 743, 

747–49 (8th Cir. 2022); United States v. Cook, 970 F.3d 866, 878–80 (7th Cir. 2020). In 

United States v. Bennett, 329 F.3d 769, 778 (10th Cir. 2003), we held that the defendant’s 

“regular and ongoing use of . . . methamphetamine during the same time as his firearm 

possession qualified him as an ‘unlawful user of a controlled substance.’” (internal 

brackets and ellipses omitted). Defendant does not suggest the district court improperly 

instructed the jury by telling it that to convict him under § 922(g)(3), it had to find his use 

of controlled substances “regular and ongoing” at the time he possessed the stolen 

firearm. So the question becomes just this: Where “use” is defined as “regular and 

ongoing,” whether a person of ordinary intelligence would understand that Defendant’s 

conduct could constitute a violation of § 922(g)(3).

We begin by considering Defendant’s post-arrest interview with Officer Atkin. 

This interview revealed that Defendant, based both on how he described procuring and 

using methamphetamine, was a serious drug user four or five weeks before he and 

Amaya attempted to rob the Sportman’s Warehouse on January 10. Defendant admitted 

buying drugs from Jesus as well as other individuals he ran into in the neighborhood in 

December 2019: “[T]here were always people that I knew that would see me . . . , and 

they would ask me, ‘Hey, you want some?’ I would say, ‘Yes.’” (emphasis added). The 

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fact that people “always” solicited Defendant to buy drugs and he accepted their 

solicitations certainly suggest that Defendant’s drug use was regular and ongoing in 

December 2019. That Defendant did not know the owner of the house where he went to 

ingest methamphetamine around the relevant time only bolsters our conclusion.

Defendant admitted his memory was unclear because he had been using drugs and had 

not slept for a number of days.

Now let us move forward one month to January 2020 and consider the evidence of 

Defendant’s drug use uncovered on the day of his arrest—evidence the district court

apparently overlooked. Amaya and Defendant drove to the Sportsman’s Warehouse in 

the former’s Nissan Altima. Inside the vehicle, investigators located over 22 grams of 

methamphetamine and a lighter in the driver’s door panel. In the center console, 

investigators recovered a pipe with methamphetamine residue. Make of this evidence in 

isolation what you will because from this point forward things only get worse for 

Defendant. The elephant in the room is the 5.7 grams of methamphetamine uncovered in 

the backseat of Officer Wathen’s patrol car directly behind where Defendant had been 

sitting after he was placed in custody. Even the district court recognized that Defendant

possessed the methamphetamine before unloading it in the backseat of Officer Wathen’s 

squad car. Morales-Lopez, 2022 WL 2355920, at *12 (“[T]he same day he was arrested 

at Sportsman’s Warehouse, [Defendant] possessed methamphetamine.”). And what was 

Defendant’s reason for possessing the methamphetamine? Based on his training and 

experience, Detective Davis testified that the amount of methamphetamine Defendant 

possessed at the time of his arrest was for personal use.

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Considering the foregoing evidence in its entirety, Defendant’s December 2019 

drug use appears to have been still regular and ongoing as of January 10, 2020, when he 

was arrested. The district court opined that the Government presented no evidence 

Defendant “actually used drugs at any point in the five weeks leading up to his arrest.” 

Id. But the court’s apparent insistence on direct evidence is mistaken. We simply cannot

ignore the reasonable inferences to be drawn from the circumstantial evidence 

presented—inferences that could well lead a reasonable person to conclude Defendant’s 

drug use was regular and ongoing at the time he possessed a stolen firearm. Our words in 

Edwards, 540 F.3d at 1162, fit perfectly: “While . . . the Government did not introduce 

specific, direct evidence pinpointing precise dates on which Defendant used drugs, the 

evidence introduced at trial supported a reasonable inference that Defendant was a user of 

controlled substances during all relevant times.” See also Bennett, 329 F.3d at 776 (“[A] 

court may use evidence of a defendant’s unlawful use of drugs while on bond to infer he 

was a user at the time he possessed a firearm.”).

If Defendant’s regular and ongoing use of methamphetamine in December 2019 

was no longer regular and ongoing at the time of his arrest, why did he arrive to rob a gun 

store in a vehicle with a man he had used drugs with just the previous month and that

contained not only methamphetamine and a lighter, but, sitting in the center console in 

plain view, a pipe with methamphetamine residue? And most importantly of all, what

was Defendant doing with a user amount of methamphetamine on his person at the time 

of his arrest? People do not carry methamphetamine on their persons absent an intention 

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to use or distribute, or both. The uncontested evidence in this case was that the amount 

Defendant possessed was intended for personal use.

The dispositive point of all this is that § 922(g)(3)’s phrase “unlawful user of . . . 

any controlled substance” is clear in its application to Defendant’s conduct. The facts 

presented at trial, coupled with reasonable inferences drawn from those facts, could 

support the conclusion that Defendant was an “unlawful user” of methamphetamine, one 

whose use was “regular and ongoing,” while in possession of a stolen firearm on January 

10. Because the Government introduced sufficient evidence of the requisite temporal 

nexus between Defendant’s drug use and firearm possession, Defendant’s as applied 

challenge must fail.

* * *

Accordingly, the judgment of the district court dismissing the § 922(g)(3) charge 

against Defendant as violative of the Fifth Amendment’s Due Process Clause is 

REVERSED. This matter is REMANDED to the district court with instructions to 

reinstate the jury’s verdict and proceed accordingly.

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