Unreported / Non-Citable
Background
Wesley Dylan Talmage Sims was convicted under 18 U.S.C. § 922(g)(1) of possessing a firearm after a felony conviction. His prohibited status rested on a Texas felony conviction for possession of a controlled substance.
Sims appealed, arguing that applying § 922(g)(1) to him violated the Second Amendment. The government conceded that his conviction had to be reversed even if he had not adequately preserved the issue in the district court and plain-error review applied.
The Court’s Holding
The Fifth Circuit held that § 922(g)(1) violated the Second Amendment as applied to Sims. The court relied on United States v. Hembree, in which it had held the statute unconstitutional as applied to a defendant whose predicate felony was simple drug possession.
Because Sims’s predicate offense was a Texas felony for controlled-substance possession, the panel concluded that Hembree controlled. It reversed Sims’s conviction.
Key Takeaways
- In the Fifth Circuit, § 922(g)(1) is unconstitutional as applied when the predicate felony is simple drug possession under the court’s Hembree precedent.
- The government conceded that reversal was required even under plain-error review.
- The court reversed Sims’s conviction rather than remanding for further consideration of his as-applied challenge.
Why It Matters
The decision applies the Fifth Circuit’s recent Second Amendment precedent to invalidate a federal felon-in-possession conviction based on a simple drug-possession felony. It confirms that Hembree directly governs similarly situated defendants in the circuit while review of that precedent has been sought in the Supreme Court.