Unreported / Non-Citable
Background
Gregory Scott Cook pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). On appeal, he argued for the first time that the statute facially violates the Second Amendment and exceeds Congress’s authority under the Commerce Clause.
Cook acknowledged that Fifth Circuit precedent foreclosed both arguments. He nevertheless asked the court to hold his appeal in abeyance because the Fifth Circuit had granted en banc rehearing in United States v. Squire, a case that potentially could alter the governing law.
The Court’s Holding
The Fifth Circuit declined to hold the appeal in abeyance. It explained that a panel remains bound by circuit precedent unless an intervening Supreme Court decision or a subsequent en banc decision changes the law; the mere grant of en banc rehearing in another case does not displace existing precedent.
Because current precedent foreclosed Cook’s Second Amendment and Commerce Clause challenges to § 922(g)(1), the court affirmed his sentence. It denied as moot the government’s alternative motion for additional time to file its brief.
Key Takeaways
- A grant of en banc rehearing does not itself overturn otherwise binding circuit precedent.
- Fifth Circuit precedent foreclosed Cook’s facial Second Amendment and Commerce Clause challenges to § 922(g)(1).
- The panel applied the law in effect at the time of decision instead of awaiting a potentially different ruling in Squire.
Why It Matters
The decision confirms that Fifth Circuit panels will continue applying existing precedent while an en banc case remains pending. Litigants challenging § 922(g)(1) cannot obtain relief from an ordinary panel merely because the full court may reconsider related law in another appeal.