Reported / Citable
Background
A federal grand jury charged David Michael Gilliam with possessing a firearm as a prohibited person, based on a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The case was set for trial later that month.
The parties agreed to focus on Gilliam’s 2014 Texas theft conviction as the predicate offense. Gilliam had pleaded guilty to stealing a wallet and socks worth less than $1,500; although the offense was classified as a state-jail felony because of prior convictions, the state court punished it as a Class A misdemeanor and imposed a one-year sentence.
The Court’s Holding
Judge Marcia A. Crone denied Gilliam’s Rule 12 motion to dismiss the indictment. Gilliam argued that applying § 922(g)(1) to him violated the Second Amendment because the government could not establish a historical tradition of disarming someone with his low-value theft conviction.
The court held that Fifth Circuit precedent, particularly United States v. Diaz, foreclosed the challenge because theft is among the offenses for which historical practice supports severe punishment and permanent disarmament. The court distinguished United States v. Debrow, which concerned aggravated criminal damage to property and did not undermine Fifth Circuit precedent treating theft-related felony convictions as valid predicates for § 922(g)(1).
Key Takeaways
- In the Fifth Circuit, a prior felony theft conviction defeats an as-applied Second Amendment challenge to § 922(g)(1).
- The court considered the agreed-upon theft conviction rather than Gilliam’s broader criminal history or unproven conduct.
- A theft’s low value did not take it outside the historical tradition identified in Diaz.
Why It Matters
The decision applies the Fifth Circuit’s post-Bruen framework to hold that theft-related felony predicates remain sufficient for the federal felon-in-possession prohibition. It also limits Debrow to its distinct property-damage offense and evidentiary record, rather than reading it as reopening challenges based on theft convictions.