NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2730

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UNITED STATES OF AMERICA

v.

JUSTIN A. RODRIGUEZ,

Appellant

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On Appeal from the United States District Court for the 

District of New Jersey

(District Court No. 2-20-cr-01064-001)

District Judge: Honorable Stanley R. Chesler 

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

July 9, 2024

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Before: BIBAS, FREEMAN, and RENDELL, Circuit Judges.

(Filed:July 24, 2024)

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O P I N I O N*

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∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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RENDELL, Circuit Judge.

Appellant Justin Rodriguez argues that he was denied a fair trial in violation of the 

Sixth Amendment when the District Court read a bifurcated portion of the indictment to a 

jury venire panel, and that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him.

These arguments lack merit, so we will affirm. 

I

In 2018, Rodriguez was convicted of a state felony drug-trafficking offense, and in 

July 2020, police found drugs and three guns in Rodriguez’s car. A federal grand jury 

indicted Rodriguez, charging him with unlawful possession of a firearm by a convicted 

felon, in violation of 18 U.S.C. § 922(g)(1); possession of cocaine with intent to distribute, 

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possession of a firearm in 

furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The 

District Court proceeded with a trial in which the jury’s consideration of the elements of 

the § 922(g)(1) charge would be bifurcated. In the first phase of the trial, the jury would 

consider whether Rodriguez possessed a firearm, and in the second phase it would consider 

the full § 922(g)(1) charge. During its preliminary instructions to the venire panel in 

advance of jury selection, the District Court stated that Rodriguez was “charged with a 

violation of Title 18 United States Code Section 922(g)(1), which is unlawfully possessing 

a firearm and ammunition knowing that he is a convicted felon.” App. 23. During a sidebar, 

defense counsel argued that Rodriguez had been unfairly prejudiced by the District Court’s

reading of the full charge, notwithstanding the bifurcated trial. The District Court then 

stated to the venire panel, 
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[b]efore we go any further, what I explained was what the charge is. It is the 

government’s burden to prove that charge . . . . This defendant, as every 

defendant, is presumed to be innocent unless and until the government proves 

guilt beyond a reasonable doubt. So when I asked you that question, it was 

simply to find out if there was something about the nature of the charges, 

given your background, which would make it difficult or impossible for you 

to be fair in deciding whether or not the defendant was guilty of the charges 

I just described. 

App. 27. 

Before the trial commenced, the defense moved for a mistrial based on the District 

Court’s preliminary statements to the panel. The District Court denied the motion.

However, before opening statements, the District Court stated to the jury, “[y]esterday 

when I was explaining the nature of the case, I made a mistake and incorrectly described

the charges in the case. . . . [W]ith regard to this particular matter I’m instructing you to 

put out of your mind what I previously said and tell you that this is indeed the correct 

statement of what this case is all about.” App. 146. During its subsequent reading of the 

charges to the jury, the District Court described the 18 U.S.C. § 922(g)(1) charge as 

“unlawful possession of a firearm[ ] and ammunition.” App. 146.

On May 10, 2022, the jury convicted Rodriguez on the 21 U.S.C. § 841(a)(1) and 

(b)(1)(C) charge and acquitted him of the 18 U.S.C. § 924(c)(1)(A)(i) charge. The jury 

also found that Rodriguez knowingly possessed a firearm. The parties then stipulated that 

in July 2020, Rodriguez knew he was a convicted felon. The jury deliberated on the 

§ 922(g)(1) count and returned a guilty verdict. 
4

On February 8, 2023, the District Court sentenced Rodriguez to 92 months’

imprisonment. Rodriguez did not challenge the constitutionality of 18 U.S.C. § 922(g)(1)

in the District Court.

II1

A

Rodriguez claims that he was denied a fair trial in violation of the Sixth 

Amendment because the District Court initially read the entirety of the § 922(g)(1) charge

to the venire panel. This Court reviews a district court’s denial of a mistrial for abuse of 

discretion. United States v. Noble, 42 F.4th 346, 354 n.9 (3d Cir. 2022).

No abuse of discretion occurred here. There was only a single instance where the 

District Court read the full charge to the venire panel. The District Court’s statement 

neither confirmed that Rodriguez had been previously convicted of a felony nor revealed

the nature of the prior felony conviction. Before opening statements, the District Court 

explained to the petit jury that it had “incorrectly described the charges in the case” and 

instructed the jury to “put out of your mind” what it had previously said. App. 146. The 

District Court then restated the charges without mentioning the bifurcated felony element.

This curative instruction cured the earlier misstatement, and we presume that the jury

followed the instruction. See United States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003).

Rodriguez relies on United States v. Coleman, 552 F.3d 853 (D.C. Cir. 2009), to 

make his Sixth Amendment argument. However, Coleman is distinguishable. There, the 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction 

under 28 U.S.C. § 1291.
5

district court read the unredacted indictment to a pool of prospective jurors, including a 

statement that the defendant had previously been convicted of “a crime of violence, that 

is, robbery with a deadly weapon” and “a crime of violence, that is, escape.” Id. at 857. 

The D.C. Circuit Court of Appeals held that it was reversible error for the district court to 

read the unredacted indictment when the defendant had offered to stipulate to his felon 

status and the evidence against the defendant was not strong. Id. at 859. The Coleman

court concluded that the defense had been “incurably compromised.” Id. at 860.

We have a different situation here. Unlike the district court in Coleman, the 

District Court did not reveal any details of Rodriguez’s prior felony conviction. The 

District Court misstated to the venire panel that Rodriguez was charged with having a 

felony conviction, but it corrected itself to the petit jury, omitting any reference to the 

felony element in the first phase of the trial. And the prosecution presented strong 

evidence of firearm possession during that phase. Therefore, the District Court acted 

within its discretion in denying Rodriguez’s motion for mistrial. 

B

Because Rodriguez did not raise his Second Amendment challenge before the 

District Court, we review for plain error pursuant to Federal Rule of Criminal Procedure 

52(b). For Rodriguez to succeed under the plain error standard of review, he must 

demonstrate that (1) there was an error that was not affirmatively waived; (2) the error is 

clear or obvious, and not subject to reasonable dispute; and (3) the error affected his 

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If a defendant

satisfies all three parts of the test, we have the discretion to correct the error, but only if it 
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“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting United States v. Olano, 507 U.S. 725, 736 (1993)). “Whether an error is plain 

must be evaluated based on the state of the law while the case under review is on appeal.” 

United States v. Dorsey, 105 F.4th 526, 530 (3d Cir. 2024) (citing United States v. 

Henderson, 64 F.4th 111, 120 (3d Cir. 2023)).

Citing New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) and

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), cert. granted, judgment 

vacated sub nom. Garland v. Range, ___ S. Ct. ___, No. 23-374, 2024 WL 3259661 (July 

2, 2024), Rodriguez urges us to hold that § 922(g)(1) is clearly unconstitutional as 

applied to him. The Supreme Court issued Bruen one month after Rodriguez was 

convicted, and we issued Range four months after Rodriguez was sentenced. However, 

any error in the District Court is not clear or obvious under the cited cases, so 

Rodriguez’s Second Amendment argument fails.

Bruen does not help Rodriguez. There, the Supreme Court considered a challenge to a 

broadly applicable state firearm-licensing regime, Bruen, 597 U.S. at 11–12, and explained 

the standard for applying the second Amendment focuses on the plain text of the Constitution 

and the “Nation’s historical tradition of firearm regulation.” Id. at 24. However, the opinion 

did not “cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id.

at 81 (Kavanaugh, J., concurring) (quoting District of Columbia v. Heller, 554 U.S. 570, 626

(2008)); accord Bruen, 597 U.S. at 72 (Alito, J., concurring) (“Our holding decides nothing 

about who may lawfully possess a firearm.”).
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As to Range, our en banc decision is no longer good law. See Garland v. Range, ___ 

S. Ct. ___, No. 23-374, 2024 WL 3259661 (July 2, 2024) (vacating judgment and 

remanding to this Court for further consideration). At the very least, the Supreme Court’s 

vacatur of Range adds to our conclusion that there can be ongoing and reasonable debate as 

to whether felons or any individuals similarly situated to Rodriguez may be disarmed 

consistent with the Second Amendment. Cf. Dorsey, 105 F.4th at 532. But even if we were 

to arrive at substantially the same holding on remand after considering Range in light of 

United States v. Rahimi, 144 S. Ct. 1889 (2024), Rodriguez’s argument would still fail 

under plain error review. In Range, we applied Bruen and held that disarming an individual 

with a single, 25-year-old, non-violent criminal conviction for fraudulently obtaining food 

stamps was not consistent with the Second Amendment. Range, 69 F.4th at 98, 106. Range 

also argued that he wished to possess firearms for hunting and self-defense purposes, and, 

after learning why he was barred from buying a gun, sold his hunting rifle and filed a civil 

suit to prohibit the enforcement of § 922(g)(1) against him. Id. at 99. We determined that 

Range was among “the people” protected by the Second Amendment and that his request to 

possess firearms for hunting and self-defense was consistent with District of Columbia v. 

Heller, 554 U.S. 570 (2008). Range, 69 F.4th at 101–03. But we stated in Range that our 

holding was a narrow one, id. at 106, and we left open the possibility that dangerous felons 

could be disarmed. Id. at 104 n.9; accord id. at 110 (Ambro, J., concurring) (joining the 

majority opinion “with the understanding that it speaks only to [Range’s] situation, and not 

to those of murderers, thieves, sex offenders, domestic abusers, and the like”).
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Rodriguez is not similarly situated to the appellant in Range. Rodriguez’s prior 

felony conviction was for a drug-trafficking conspiracy offense, while Range was 

convicted for welfare fraud. Rodriguez’s prior felony conviction was recent, preceding

the instant offense by only two years. Indeed, Rodriguez had been participating in, and 

released to, an alternative to incarceration program, the Intensive Supervision Program, 

when he committed the instant offense. Finally, Rodriguez’s guns were found in close 

proximity to illegal drugs in his car, and he has failed to argue that he possessed, or 

wishes to possess, firearms for any lawful purpose. 

Accordingly, Rodriguez has not cited to any binding, current caselaw that the 

Second Amendment prohibits disarming people similarly situated to him, so Rodriguez’s 

challenge does not survive plain error review. Puckett, 556 U.S. at 135.

III

For the reasons stated above, we will affirm.