United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-50525 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Adrian Gil, II, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 3:22-CR-773-1 

______________________________ 

Before Elrod, Graves, Circuit Judges, and Ashe, District Judge.

*

Per Curiam:†

Adrian Gil II pleaded guilty to one count of being an unlawful drug 

user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). On 

appeal, he argues that the statute of conviction is unconstitutional as applied 

to him. We VACATE and REMAND for consideration of Gil’s as-applied 

_____________________ 

*

 United States District Judge for the Eastern District of Louisiana, sitting by 

designation. 

†

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

May 15, 2024 

Lyle W. Cayce 

Clerk 

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2 

challenge in light of United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), 

petition for cert. filed, No. 23-376 (U.S. Oct. 10, 2023). 

I. FACTUAL AND PROCEDURAL BACKGROUND 

On July 15, 2021, the El Paso Police Department (“EPPD”) was 

dispatched to a home in response to a fight involving a firearm. EPPD officers 

found marihuana in a vacuum-sealed clear plastic bag just inside the front 

door. Officers then performed a “protective sweep” and found another bag 

of marihuana. After obtaining a search warrant, the officers’ subsequent 

search uncovered several more stashes of marihuana, THC products, drug 

paraphernalia, and “suspected steroids” in the house, as well as six firearms. 

EPPD arrested several individuals, including Gil. 

In a recorded custodial interview, Gil was Mirandized but agreed to 

talk with an agent of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives. Gil admitted that all the firearms found in the house were his and 

explained how he had obtained some of them. Gil told the agent that he began 

using marihuana at age fourteen and transitioned to daily use after high 

school. Gil said that marihuana helped him eat more and he “like[d] good 

weed.” When the agent asked if Gil knew it was a federal offense to be a drug 

user in possession of a firearm, Gil responded, “Trap. Trap. You got me.” 

Gil also stated that he knew it was illegal to have marihuana, a medical card 

from New Mexico, and firearms. Gil admitted that he was concerned about 

people breaking into his house because he had drugs on the premises. 

On June 1, 2022, a federal grand jury returned an indictment charging 

Gil with violating 18 U.S.C. § 922(g)(3), which prohibits unlawful users of, 

or those addicted to, a controlled substance from possessing firearms. Gil 

pleaded guilty as charged, without a plea agreement, on November 10, 2022. 

Prior to Gil’s sentencing hearing, this court handed down its decision 

in Rahimi, holding 18 U.S.C. § 922(g)(8), which prohibits persons subject to 

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3 

a restraining order from possessing firearms, unconstitutional on its face. 

United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 

2688 (2023). Gil then moved to withdraw his guilty plea and dismiss the 

indictment, relying on Rahimi and New York State Rifle & Pistol Ass’n, Inc. v. 

Bruen, 597 U.S. 1 (2023), to pose facial and as-applied challenges to 

§ 922(g)(3).1

 

On July 5, 2023, the district court, analyzing only the facial challenge, 

denied Gil’s motion. United States v. Gil, EP-22-CR-773-DB, 2023 WL 

4356067 (W.D. Tex. July 5, 2023). Following the Rahimi court’s 

interpretation of the phrase “law-abiding, responsible citizens,”2

 the district 

court held that Gil—an admitted unlawful drug user—was not subject to any 

limitations on his Second Amendment rights at the time of arrest because 

“he was not a ‘convicted felon or otherwise subject to another longstanding 

prohibition’ on firearm possession.” Id. at *4 (emphasis in original) (quoting 

Rahimi, 61 F.4th at 452). Next, the district court found that Gil’s conduct—

possession of rifles and pistols—is covered by the Second Amendment’s 

plain text. Id. at *5. The district court then determined that unlawful drug 

use and addiction was not “a problem that existed at the nation’s founding” 

but instead is an “unprecedented societal concern” that, under Bruen, 

requires a “nuanced approach,” often involving reasoning by analogy, to 

evaluate whether the challenged regulation is consistent with the text and 

historical understanding of the Second Amendment. Id. Applying the 

“nuanced approach,” the district court found that the historical tradition of 

_____________________ 

1

 In the memorandum filed in support of his motion to withdraw guilty plea and 

dismiss indictment, Gil states that he raises both types of challenges, but it appears that he 

only analyzes the facial challenge. 

2

 The phrase comes from the Supreme Court’s opinion in District of Columbia v. 

Heller, 554 U.S. 570, 635 (2008), and, says the government, delimits those persons covered 

by the Second Amendment. 

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disarming intoxicated persons—the first analogue examined—does not 

support the constitutionality of § 922(g)(3), because an unlawful drug user 

or addict may not be impaired at the time he possesses a firearm. Id. at *6. 

This means that “the temporal restriction under § 922(g)(3) has the 

potential to far exceed the [comparable temporal] restriction under the 

historical intoxication laws.” Id. However, the district court, citing several 

district court opinions, including United States v. Daniels, 610 F. Supp. 3d 

892, 895–97 (S.D. Miss. 2022), held that the historical tradition of disarming 

presumptively dangerous groups—the second analogue examined—

supports the constitutionality of § 922(g)(3), because unlawful drug users 

and addicts, especially those with guns, pose a risk to society.3

 Gil, EP-22-

CR-773-DB, 2023 WL 4356067, at *6–7. Thus, the court rejected Gil’s facial 

challenge to the constitutionality of § 922(g)(3). Id. at *7. 

On July 19, 2023, the district court sentenced Gil to a 35-month term 

of imprisonment, followed by a three-year term of supervised release. Gil 

appealed from the judgment. 

On August 9, 2023, this court issued its decision in Daniels, holding 

that § 922(g)(3) was unconstitutional as applied where there was no evidence 

that the defendant—an admitted regular marihuana user—was intoxicated at 

the time of his arrest, and no evidence of when he last used marihuana. 

Daniels, 77 F.4th at 339–40. Gil moved for a new trial, arguing that Daniels 

demonstrated that § 922(g)(3) was unconstitutional as applied to him. The 

district court denied the motion as untimely. 

_____________________ 

3

 The court distinguished Rahimi by stating that the purpose of the historical laws 

disarming dangerous groups was “the preservation of political and social order,” whereas 

the purpose of a restriction on firearm possession by persons subject to a restraining order 

is the protection of “an identified” person, not society at large. Gil, EP-22-CR-773-DB, 

2023 WL 4356067, at *7. 

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II. DISCUSSION

On appeal, Gil challenges the district court’s denial of his motion to 

withdraw his guilty plea and dismiss the indictment, arguing that § 922(g)(3) 

violates the Second Amendment as applied to him given Bruen, Rahimi, and 

Daniels.

4

 

Gil preserved his right to challenge the constitutionality of the statute 

of conviction on direct appeal by raising the challenge in the district court in 

his motion to dismiss the indictment. See Class v. United States, 583 U.S. 174, 

178–79 (2018); Daniels, 77 F.4th at 341. This court reviews constitutional 

questions—including the constitutionality of a statute—de novo. United 

States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003). Review of the denial 

of a motion to dismiss the indictment is likewise de novo. United States v. 

Arrieta, 862 F.3d 512, 514 (5th Cir. 2017). On the other hand, this court 

reviews a district court’s denial of a motion to withdraw a guilty plea for 

abuse of discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 

2009). And a district court’s factual findings are reviewed for clear error. 

United States v. Scully, 951 F.3d 656, 668 (5th Cir. 2020). 

Subject to some limitations, “[t]he Second Amendment protects the 

right of individuals to keep and bear firearms for their self-defense.” Daniels, 

77 F.4th at 341 (internal quotation marks and citations omitted). With Bruen, 

the Supreme Court articulated a new test for assessing the constitutionality 

of a gun-restriction statute under the Second Amendment. Id. (citing Bruen, 

597 U.S. at 22–27). Because “the Second Amendment codified a pre-existing 

right with pre-existing limits,” courts must look to “historical gun 

regulations [that] evince the kind of limits that were well-understood at the 

_____________________ 

4

 Because Gil raises only an as-applied challenge on appeal, this court need not 

consider the government’s argument that § 922(g)(3) is constitutional on its face. 

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time the Second Amendment was ratified.” Id. (emphasis in original) (citing 

Bruen, 597 U.S. at 20). A modern-day gun regulation that is inconsistent with 

the historical limits on firearms is inconsistent with the Second Amendment. 

Id. 

To that end, the Bruen court prescribed a two-step approach for 

analyzing the constitutionality of modern firearms laws. Id. First, a court 

must determine whether the Second Amendment’s plain text covers the 

individual’s conduct, and if it does, the Constitution presumptively protects 

that conduct. Id. (citing Bruen, 597 U.S. at 24). Second, a court must 

consider “whether a given gun restriction is ‘consistent with the Nation’s 

historical tradition of firearm regulation.’” Id. (quoting Bruen, 597 U.S. at 

24). The government bears the burden of showing a tradition supporting the 

challenged law, i.e., “that the law does not tread on the historical scope of the 

right.” Id. At this second step, courts are to take one of two pathways: (1) 

“If the modern regulation addresses ‘a general societal problem that has 

persisted since the 18th century,’ then ‘the lack of a distinctly similar 

historical regulation addressing that problem is relevant evidence that the 

challenged regulation is inconsistent with the Second Amendment’”; or (2) 

“if a modern law addresses ‘unprecedented societal concerns or dramatic 

technological changes,’ it calls for a ‘more nuanced approach,’” where 

courts “reason by analogy to determine whether older regulations are 

‘relevantly similar’ to the modern law.” Id. at 342 (quoting Bruen, 597 U.S. 

at 26–29). 

Employing Bruen’s analytical framework, the court in Daniels held 

that § 922(g)(3) was unconstitutional as applied to the defendant. Id. at 

339–55. First, the court found that the defendant—an admitted regular 

marihuana user—was covered by the plain text of the Second Amendment 

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and had a presumptive right to bear arms.5 Daniels, 77 F.4th at 342. At 

Bruen’s second step, the Daniels court found that unlawful drug use and 

addiction represent an unprecedented societal concern that did not exist in 

the 18th century, thus requiring the nuanced approach, analyzing by analogy 

whether older regulations are relevantly similar to § 922(g)(3).6

 Daniels, 77 

F.4th at 343–44. The court examined three potential historical analogues: (1) 

statutes disarming persons intoxicated by alcohol, (2) statutes disarming the 

mentally ill, and (3) statutes disarming those adjudged dangerous or disloyal. 

Id. at 344–55. 

After reviewing several 18th and 19th century statutes that disarmed 

intoxicated persons, the Daniels court held that those laws do not support the 

constitutionality of § 922(g)(3) because they did not bar gun possession by 

regular drinkers. Id. at 345–47. The analogous “statutes support . . . banning 

the carry of firearms while under the influence,” but “[s]ection 922(g)(3) bans 

all possession [by unlawful drug users or those addicted to a controlled 

substance], and it does so for an undefined set of ‘users,’ even if they are not 

under the influence.” Id. at 347 (emphasis in original). The court pointed 

out that “there is a considerable difference between someone who is actively 

intoxicated and someone who is an ‘unlawful user’ under § 922(g)(3),” 

because the “temporal nexus” of the latter is vague in that “it does not 

specify how recently an individual must ‘use’ drugs to qualify for the 

prohibition.” Id. at 347–48. Notably, the government did not present any 

evidence that the defendant was intoxicated at the time he was found with 

the gun. Id. at 348. 

_____________________ 

5

 The district court in this case held the same. Gil, EP-22-CR-773-DB, 2023 WL 

4356067, at *5. 

6

 Again, the district court in this case held the same. Gil, EP-22-CR-773-DB, 2023 

WL 4356067, at *5. 

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The district court in this case determined that the historical analogues 

disarming the intoxicated do not support the facial constitutionality of 

§ 922(g)(3). Gil, EP-22-CR-773-DB, 2023 WL 4356067, at *6. It did so, 

though, without the benefit of our decision in Daniels. The government asks 

this court to infer that Gil was intoxicated when he possessed the guns and at 

the time of arrest because he admitted to using marihuana daily and he failed 

a sobriety test when stopped for speeding on two occasions. We decline the 

invitation to make such an inference at this stage, and also leave to the district 

court the question of whether, if that inference is appropriate, it would satisfy 

a finding of constitutionality under Daniels. 

The court in Daniels next examined the historical practice of 

institutionalizing—and consequently disarming—the mentally ill as 

historically analogous to disarming illegal drug users or those addicted to a 

controlled substance. Id. at 348–50. After acknowledging the obvious 

difference between mental illness and drug use, the court observed that 

“there is an intuitive similarity: Those who are briefly mentally infirm as a 

result of intoxication are similar to those permanently mentally infirm 

because of illness or disability.” Id. at 349 (quotation omitted). On appeal, 

the government asks this court to infer that Gil’s drug use rendered him 

continually impaired or mentally ill because he used marihuana daily to selfmedicate and stated in a letter to the district court prior to sentencing that he 

had a mind “like the mind of any addict.” We leave it to the district court to 

determine on remand whether that evidence satisfies a finding of 

constitutionality under Daniels. 

Lastly, the Daniels court examined historical laws that disarmed 

persons deemed dangerous to public peace or safety and found that those 

laws did not justify the application of § 922(g)(3) to repeat marihuana users. 

Id. at 350–55. Looking to “particular regulatory traditions instead of a 

general notion of ‘dangerousness,’” the court found that the analogous 

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historical laws were directed to the disarmament of politically disaffected 

citizens and religious dissenters, not just any group that the legislature might 

tag as dangerous, such as ordinary drunkards or, by extension, marihuana 

users. Id. at 354. The court also noted that § 922(g)(3) is not limited to 

persons with a history of violent behavior and, in any event, not all drug users 

or addicts are violent. Id. Thus, the Daniels court held that § 922(g)(3) was 

unconstitutional as applied to the defendant there because the government 

did not show how his marihuana use predisposed him to armed conflict or 

that he had a history of drug-related violence. Id. 

Here, the district court erred in invoking historical laws disarming 

dangerous groups to uphold the facial constitutionality of § 922(g)(3). In 

support of its holding, the district court relied on several district court cases, 

but it did not scrutinize the analysis done by those courts. Gil, EP-22-CR773-DB, 2023 WL 4356067, at *7. One of those cases was the district court’s 

decision in Daniels—a decision that was subsequently overturned by our 

court. Id. (citing United States v. Daniels, 610 F. Supp. 3d 892, 895–97 (S.D. 

Miss. 2022), rev’d, 77 F.4th at 340). Two of the others are factually 

distinguishable because there was evidence that the defendants in those cases 

were intoxicated at the time of arrest. See United States v. Sanchez, 646 F. 

Supp. 3d 825, 829 (W.D. Tex. 2022) (defendant tested positive for controlled 

substances at the time he was found with the firearm), appeal docketed, No. 

23-50293 (5th Cir. Apr. 27, 2023); United States v. Seiwert, No. 20 CR 443, 

2022 WL 4534605, at *1 (N.D. Ill. Sept. 28, 2022) (defendant admitted he 

had used drugs within hours of his arrest). The remaining two cases relied 

on the historical analogues of intoxication and mental illness disarmament. 

See United States v. Posey, 655 F. Supp. 3d 762 (N.D. Ind. 2023); Fried v. 

Garland, 640 F. Supp. 3d 1252 (N.D. Fla. 2022). The government asks this 

court to assume that Gil was part of a dangerous group because he carried a 

firearm while dealing marihuana and drug dealing is dangerous. However, 

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the government did not charge Gil with dealing marihuana or carrying a gun 

while doing so. It charged him with being an unlawful drug user in possession 

of a firearm. On remand, the district court must determine whether Gil, as a 

regular marihuana user or addict, was part of a dangerous group analogous to 

political and religious dissidents who could be disarmed at the time the 

Second Amendment was ratified. 

The judgment of conviction is therefore VACATED and this matter 

is REMANDED for reconsideration of Gil’s as-applied challenge to the 

constitutionality of § 922(g)(3) in light of Daniels.

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