United States v. Juan David Cisneros

In United States v. Cisneros, —- F.4th —-, No. 23-40625 (5th Cir. Mar. 6, 2025), the FIfth Circuit affirmed Cisneros’s conviction for possessing ammunition after having been convicted of a felony, but it vacated his sentence and remanded his case for resentencing.

Holding 1: Cisneros’s facial challenge to 18 U.S.C. § 922(g)(1) is foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). Because a defendant cannot prove that “no set of circumstances exists under which the statute would be valid,” the statute is facially constitutional.

Holding 2: The district court plainly erred by enhancing Cisneros’s sentence under USSG § 2K2.1(b)(6)(B) for possessing ammunition in connection with another felony offense.

Under that Guideline, the enhancement is warranted when a firearm is found near drugs, drug-manufacturing materials, or drug paraphernalia because the firearm has the potential of facilitating the drug offense. § 2K2.1 cmt. n.14(B). But that presumption does not apply to situations like this, where the defendant possessed only ammunition, not a firearm.

Under certain circumstances, possession of ammunition alone might justify the enhancement, but only if the Government presents additional facts showing how the ammunition had the potential of facilitating drug trafficking—perhaps, for example, if the ammunition was displayed or brandished in a way that implied possession of a gun. Because no such evidence existed here, the district court committed plain error by enhancing Cisneros’s sentence. See United States v. Eaden, 914 F.3d 1004 (5th Cir. 2019).