Full Opinion

USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 1 of 7 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13132 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID GIBSON, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 4:22-cr-00032-CDL-ALS-1 ____________________ Before JORDAN, JILL PRYOR, and KIDD, Circuit Judges. PER CURIAM: Following jury selection, David Gibson pled guilty without a plea agreement to violating 18 U.S.C. § 922(g)(3) (prohibiting, as relevant here, any person “who is an unlawful user of or addicted USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 2 of 7 2 Opinion of the Court 23-13132 to any controlled substance” from possessing “in or affecting com- merce, any firearm or ammunition”). The district court later de- nied Mr. Gibson’s motion to withdraw the guilty plea and imposed a sentence of 30 months’ imprisonment. Mr. Gibson appeals, raising a number of issues. After a re- view of the record, and with the benefit of oral argument, we af- firm in part and relinquish jurisdiction to the district court in part. 1 I Mr. Gibson first argues that § 922(g)(3) is facially unconstitu- tional under the Second Amendment. See Br. for Appellant at 10– 17. His guilty plea does not foreclose such a claim, see Class v. United States, 583 U.S. 174, 178 (2018), so we address the argument. A defendant who mounts a constitutional facial challenge to a criminal statute on non-First Amendment grounds bears a heavy burden. He must “establish that no set of circumstances exists un- der which the Act would be valid.” United States v. Rahimi, 602 U.S. 680, 693 (2024) (internal quotation marks and citation omitted). Every circuit that has addressed the issue, both before and after New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), has held that § 922(g)(3) is not facially unconstitutional because our his- tory and tradition support disarming individuals who are presently intoxicated. See, e.g., United States v. Seiwert, 152 F.4th 854, 872 (7th 1 Because we write for the parties, we assume their familiarity with the record and set out only what is necessary to explain our decision. USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 3 of 7 23-13132 Opinion of the Court 3 Cir. 2025); United States v. Stennerson, 150 F.4th 1276, 1285 (9th Cir. 2025); United States v. Daniels, 124 F.4th 967, 974 (5th Cir. 2025), cert. denied, 146 S. Ct. 2792 (2026); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010). We agree with those circuits and reject Mr. Gibson’s facial challenge. Cf. Rahimi, 602 U.S. at 700 (“Our tradition of fire- arm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.”).2 II Mr. Gibson also makes a number of related arguments about his guilty plea to the § 922(g)(3) charge: that there was an insuffi- cient factual basis for his plea; that he was denied his due process rights because he was not told what the term “unlawful user of . . . any controlled substance” means; and that his plea was involun- tary because he did not know what mens rea § 922(g)(3) requires after Rehaif v. United States, 588 U.S. 225, 237 (2019) (“We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he pos- sessed a firearm and that he knew he belonged to the relevant cat- egory of persons barred from possessing a firearm.”). See Br. for Appellant at 17–29. 2 As part of his facial attack, Mr. Gibson argues that Bruen abrogated our cases upholding § 922(g) against Second Amendment challenges, such as United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir. 2010). But we have recently rejected that very same argument. See United States v. Dubois, 139 F.4th 887, 888–89 (11th Cir. 2025) (addressing § 922(g)(1)), cert. denied, No. 25-6281, 2026 WL 135685 (U.S. Jan. 20, 2026). USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 4 of 7 4 Opinion of the Court 23-13132 After Mr. Gibson filed his brief, the Supreme Court decided United States v. Hemani, 608 U.S. 772 (2026), which involved an as- applied Second Amendment challenge to § 922(g)(3). In that case the Court affirmed the dismissal of an indictment charging a vio- lation of § 922(g)(3), explaining that under the Second Amendment the government could not “automatically strip [a non-dangerous defendant] of his Second Amendment right to possess a firearm be- cause he uses marijuana a few times a week.” Id. at 794. See also id. at 794–95 (similarly rejecting the government’s contention that § 922(g)(3) only requires a showing that the defendant “regularly uses any amount of any controlled substance”). We asked the parties to submit supplemental briefs address- ing Hemani, and they have done so. Under the circumstances, we think the best resolution of the rest of this appeal is to remand the case to the district court for it to reconsider Mr. Gibson’s motion to withdraw the guilty plea in light of Hemani. During the plea colloquy, the district court had the govern- ment lay out the elements of a § 922(g)(3) offense. The prosecutor stated that the government would have to prove, among other things, that Mr. Gibson was “an unlawful user of controlled sub- stance[s] in close proximity to the time he possessed the firearm.” D.E. 69 at 16. Later on, the prosecutor proffered that (1) on No- vember 17, 2022, federal and local law enforcement agents exe- cuted a federal search warrant on Mr. Gibson’s residence, and found 26 firearms; (2) Mr. Gibson admitted that he “has been a reg- ular user of marijuana and has dabbled in methamphetamine”; (3) USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 5 of 7 23-13132 Opinion of the Court 5 Mr. Gibson admitted to smoking methamphetamine the night be- fore and the morning of the execution of the search warrant; (4) Mr. Gibson overdosed on narcotics in a home in Georgia on Sep- tember 11, 2021; and (5) Mr. Gibson pled guilty to a state charge of unlawful possession of methamphetamine in February of 2021. See id. at 31–32. Although Mr. Gibson admitted to most of those proffered facts, he told the district court that he “wasn’t a regular user like that. My dad passed away. I started using [a] little bit of it and I got caught with it[.]” Id. at 33. Nevertheless, he agreed that he “did use drugs at some point while those guns were there at the house[.]” Id. (emphasis added). See also id. at 34 (“I smoked some marijuana. I hit a joint probably two or three times.”). Hemani left a number of issues about § 922(g)(3) unan- swered. See, e.g., Hemani, 608 U.S. at 794 (“We do not address efforts to ban addicts, . . . , or those presently intoxicated, from possessing a firearm . . . . We do not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by indi- vidualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others.”). To our knowledge no circuit court has delineated the permissible reach of § 922(g)(3) (i.e., explained what constitutes constitutionally suffi- cient evidence for a conviction) after Hemani. And the Fifth Circuit has recently commented that, with respect to what evidence suf- fices to make a conviction under § 922(g)(3) constitutional, Hemani USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 6 of 7 6 Opinion of the Court 23-13132 “does not make the answer obvious.” United States v. Nyandoro, ___ F.4th ___, 2026 WL 2619961, at *7 (5th Cir. Sept. 4, 2026). Nevertheless, we reject Mr. Gibson’s evidentiary contention that the government’s proffer was insufficient to make out a viola- tion of § 922(g)(3). Our cases hold that a defendant who pleads guilty waives non-jurisdictional challenges like one based on the al- leged insufficiency of the evidence. See United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir. 1998) (“Appellant Viscome also attacks the sufficiency of the government’s evidence regarding the interstate nexus element [of 18 U.S.C. § 844(i)]. However, Viscome’s guilty plea waived all non-jurisdictional defects in the proceedings against him; and Viscome’s sufficiency of the evidence challenge is non- jurisdictional.”). As for Mr. Gibson’s due process and involuntariness argu- ments, the resolution is less clear. Take, for example, Mr. Gibson’s mens rea argument. The prosecutor advised Mr. Gibson during the plea colloquy that the government had to prove, among other things, that he “knew that he was an unlawful user of [a] controlled substance.” D.E. 69 at 16. Mr. Gibson’s claim that he was not properly informed of the mens rea requirement for § 922(g)(3) after Rehaif can only be decided once there is a constitutional baseline for what sort of a narcotics user falls within the ambit of that pro- vision. And, as of now, there are no authorities providing any guid- ance on that latter matter. Given the intervening decision in Hemani, and the uncertain legal landscape, we think it is best to remand the case to the district USCA11 Case: 23-13132 Document: 56-1 Date Filed: 10/26/2026 Page: 7 of 7 23-13132 Opinion of the Court 7 court for it to re-evaluate Mr. Gibson’s motion to withdraw the guilty plea in light of Hemani. We relinquish jurisdiction to the dis- trict court for the limited purpose of having it re-evaluate Mr. Gib- son’s motion to withdraw the guilty plea. Once the court has re- ceived supplemental briefing from the parties on the issue and ruled again on Mr. Gibson’s motion, it shall notify us so that we can then proceed as appropriate with the remainder of the appeal. III We reject Mr. Gibson’s facial challenge to § 922(g)(3) and claim of evidentiary insufficiency. But we remand to the district court and relinquish jurisdiction so it can re-evaluate Mr. Gibson’s motion to withdraw the guilty plea in light of Hemani. AFFIRMED IN PART AND JURISDICTION RELINQUISHED TO THE DISTRICT COURT IN PART.