Background
Michael A. Nolan pleaded guilty without a plea agreement in the Eastern District of Virginia to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). District Judge Roderick Charles Young sentenced Nolan to 63 months in prison. The sentence included a four-level enhancement under U.S.S.G. § 2K2.1(a)(4)(B) based on the district court’s finding that Nolan possessed the firearm in connection with another felony — shooting at an occupied dwelling in violation of Va. Code Ann. § 18.2-279.
On appeal, Nolan raised two constitutional challenges to his conviction and one procedural challenge to his sentence. He argued that § 922(g)(1) violated the Second Amendment and exceeded Congress’s authority under the Commerce Clause. He also contended that the district court misapplied Virginia law in imposing the four-level sentencing enhancement.
The Court’s Holding
A per curiam panel of the Fourth Circuit affirmed on all grounds. As to the constitutional challenges, the court noted that Nolan himself conceded they were foreclosed by circuit precedent — specifically United States v. Canada, 123 F.4th 159 (4th Cir. 2024), which upheld § 922(g)(1)’s facial constitutionality, and United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), which foreclosed as-applied Second Amendment challenges. The Commerce Clause challenge was similarly foreclosed by United States v. Wells, 98 F.3d 808 (4th Cir. 1996).
On the sentencing enhancement, the court rejected Nolan’s argument that the district court misread Virginia law. Relying on the Virginia Supreme Court’s decisions in Dowdy v. Commonwealth (1979) and Kirby v. Commonwealth (2002), the Fourth Circuit confirmed that § 18.2-279 does not require the Commonwealth to prove that human life was actually endangered — only that it may have been put in peril. The court also found no clear error in the district court’s factual finding that Nolan’s conduct at the apartment complex could have endangered occupants, and it upheld the 63-month sentence as procedurally reasonable.
Key Takeaways
- Second Amendment and Commerce Clause challenges to § 922(g)(1) remain foreclosed in the Fourth Circuit under Canada, Hunt, and Wells.
- Virginia’s shooting-at-an-occupied-dwelling statute (Va. Code Ann. § 18.2-279) requires only a showing that life may have been put in peril, not that it was actually endangered — a standard the Fourth Circuit applied in upholding a § 2K2.1(a)(4)(B) sentencing enhancement.
- Factual findings supporting a sentencing enhancement are reviewed only for clear error, a high bar the defendant did not clear here.
Why It Matters
This unpublished decision underscores that constitutional attacks on the federal felon-in-possession statute continue to face an uphill battle in the Fourth Circuit despite post-Bruen litigation activity nationwide. Defense counsel should be aware that both facial and as-applied Second Amendment challenges to § 922(g)(1) are currently dead on arrival in this circuit.
The case also illustrates the breadth of Virginia’s shooting-at-an-occupied-dwelling offense as a predicate felony for federal sentencing enhancements. Because the statute’s “may endanger” threshold is legislatively presumed rather than factually required, virtually any discharge of a firearm near an occupied structure can support a four-level bump under U.S.S.G. § 2K2.1(a)(4)(B) in the Eastern District of Virginia and elsewhere in the circuit.