United States v. David Gibson
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 26, 2026
Docket23-13132
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION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
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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.
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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).
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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)
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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
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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
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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.