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 is facially unconstitutional under the Second Amendment and exceeds Congress’s authority under the Commerce Clause.
Cook acknowledged that existing 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 could potentially affect the governing law. For purposes of the appeal, the panel assumed without deciding that the miscarriage-of-justice exception to appeal waivers recognized in Hunter v. United States applied to Cook.
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. A grant of en banc rehearing in another case does not itself displace existing precedent.
Because Cook conceded that binding Fifth Circuit precedent foreclosed his Second Amendment and Commerce Clause challenges to § 922(g)(1), the court affirmed his sentence. It also denied as moot the Government’s alternative motion for additional time to file its brief.
Key Takeaways
- A Fifth Circuit panel must apply existing circuit precedent until the Supreme Court or the en banc Fifth Circuit actually changes it.
- The grant of en banc rehearing in a potentially relevant case does not require a panel to stay or hold a separate appeal in abeyance.
- Cook’s facial Second Amendment and Commerce Clause challenges to § 922(g)(1) remained foreclosed by binding precedent.
Why It Matters
The decision underscores that anticipated changes in circuit law are not enough to avoid controlling precedent. Litigants may preserve foreclosed arguments for further review, but the mere pendency of an en banc case does not entitle them to delay resolution of their appeals.
For § 922(g)(1) cases in the Fifth Circuit, panels will continue applying current circuit law unless and until an en banc decision or intervening Supreme Court ruling changes the governing analysis.