Full Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0421n.06 No. 25-3887 UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 20, 2026 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff -Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE ) NORTHERN DISTRICT OF TYSHAWN MCCUTCHEN, ) OHIO Defendant -Appellant. ) ) OPINION ) Before: CLAY, NALBANDIAN, and BLOOMEKATZ, Circuit Judges. BLOOMEKATZ, Circuit Judge. A grand jury indicted Tyshawn McCutchen of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). McCutchen moved to dismiss the indictment, challenging the statute as unconstitutional as applied to him under the Second Amendment. The district court denied the motion and McCutchen pled guilty. McCutchen now appeals the district court’s decision, claiming that he was entitled to a hearing to prove that he is not dangerous and therefore cannot be constitutionally convicted as a felon in possession. He thus asks that we remand for that hearing. But McCutchen has not demonstrated that a hearing was necessary in his case. And because McCutchen had a reasonable opportunity to demonstrate that he is not dangerous but failed to do so, we affirm. BACKGROUND In 2014, McCutchen was convicted of an attempted robbery and two aggravated robberies. McCutchen was between the ages of 15 and 16 years old when he committed the offenses. The attempted robbery conviction arose from an incident in which McCutchen approached a juvenile No. 25-3887, United States v. McCutchen and demanded his belongings, threatening to kill the victim if he reported him to the police. The first aggravated robbery entailed McCutchen and another individual robbing two women, resulting in a struggle, with one suspect brandishing a gun when the women refused to hand over their purses. In the second, McCutchen robbed a juvenile while brandishing a handgun and then threatened to shoot the victim if he went to the police. An Ohio state court sentenced McCutchen to ten years of incarceration. He was released in December 2023, beginning a term of parole supervision. Roughly six months later, federal officers were surveilling a liquor store when McCutchen and two other individuals entered the store. The officers observed one of the men carrying a concealed weapon and proceeded to search all three men. They found that McCutchen was carrying a loaded gun. McCutchen initially gave false personal identifying information but later complied with the investigation. At the time, McCutchen was on post-release supervision and was prohibited from possessing firearms. For violating the terms of his post-release control, a state court sentenced him to nine months in prison. McCutchen’s firearm possession not only violated his post-release supervision; it also led to a federal grand jury indictment for violating 18 U.S.C. § 922(g)(1), which makes it unlawful for someone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year” to possess a gun. McCutchen moved to dismiss the indictment. In his motion, he did not contest his previous convictions. Instead, he argued that the § 922(g)(1) charge was unconstitutional as applied to him because he cannot be considered “dangerous.” He contended that his past convictions were not indicative of dangerousness because he committed them over a decade ago as a juvenile with a difficult and unstable upbringing. He also argued that he “remained law abiding” after release from prison, including by finding employment, refraining from drug -2- No. 25-3887, United States v. McCutchen use, and living with a family member. Appellant’s Mot. to Dismiss, R. 16, PageID 66. McCutchen requested a hearing on the matter. The district court denied the motion on the briefs. The court, relying on our decision in United States v. Williams, 113 F.4th 637 (6th Cir. 2024), reasoned that McCutchen’s prior robbery convictions constituted “crimes against the person” that “presumptively demonstrate dangerousness.” Op. & Order, R. 18, PageID 90–91. The court considered McCutchen’s youth and lack of parental guidance at the time of the offenses but concluded that, even if relevant, they were insufficient to overcome the presumption created by his convictions, especially when considering that McCutchen, now an adult, had violated the terms of his supervision by possessing a firearm within six months of being released. McCutchen and the government subsequently entered into a plea agreement wherein McCutchen agreed to plead guilty while preserving his right to appeal the district court’s ruling on his motion to dismiss the indictment. The district court sentenced him to 30 months’ incarceration and three years of supervised release. McCutchen timely appealed. ANALYSIS On appeal, McCutchen does not challenge the district court’s denial of his motion to dismiss the indictment on the merits, so we do not review the constitutionality of disarming him. Instead, he claims that the district court failed to afford him an opportunity to demonstrate why § 922(g)(1) is unconstitutional as applied to him because it did not hold a hearing for him to prove that he is not dangerous. He therefore asks that we remand to the district court with instructions to allow him to develop the record more fully through a fact-finding hearing. McCutchen’s claim that the Second Amendment entitles him to a hearing raises a question of law that we review de -3- No. 25-3887, United States v. McCutchen novo. See United States v. Hostettler, 170 F.4th 539, 543 (6th Cir. 2026); United States v. Morton, 123 F.4th 492, 495 (6th Cir. 2024). To analyze McCutchen’s claim, we begin with an overview of the relevant framework. The Second Amendment to the Constitution states: “A well regulated Milita, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend II. It confers an “individual right to keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 595 (2008). But this right “is not unlimited.” Id. at 626. Congress may regulate firearm possession so long as the limitation is “consistent with the Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022). Applying Bruen, we have held that § 922(g)(1)—the felon-in-possession prohibition—is “constitutional on its face and as applied to dangerous people,” consistent with a historical tradition of disarming “classes of people [that] posed a great risk of violence.” Williams, 113 F.4th at 650, 662–63. In Williams, we concluded that “governments may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they aren’t.” Id. at 661–62. Accordingly, Williams upheld Congress’s general prohibition on felons bearing arms, but it also held that individuals could bring as-applied challenges. Id. Because § 922(g)(1) is “presumptively lawful,” Williams held that the burden falls on the defendant to show that “he himself is not actually dangerous,” and therefore § 922(g)(1) is unconstitutional as applied to him. Id. at 663. That is often a fact-intensive showing. And courts are required to “make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction.” Id. The dangerousness inquiry includes consideration of “any evidence of past convictions in the record, -4- No. 25-3887, United States v. McCutchen as well as other judicially noticeable information or other evidence the defendant submits.” Hostettler, 170 F.4th at 542 (citation modified). Although Williams entitles defendants to an opportunity to make this showing that they are not dangerous, it does not guarantee a hearing in all circumstances. Instead, Williams stated that individuals must have a “reasonable opportunity” to “demonstrate that their particular possession of a weapon pose[s] no danger to peace” and they “don’t fit the class-wide generalization.” 113 F.4th at 657, 661. And it contemplated that in some instances that might happen “without an evidentiary hearing.” Id. at 662. The critical question Williams requires us to ask, therefore, is whether, based on the facts and circumstances of the case, the defendant had a “reasonable opportunity” to challenge their § 922(g)(1) indictment as applied to them once charged. Id. at 661. McCutchen had such an opportunity when he directly challenged his dangerousness in his motion to dismiss the indictment. See United States v. White, No. 24-2064, 2025 WL 2060869, at *3 (6th Cir. July 23, 2025). Relying on Williams, McCutchen argued that his unique circumstances rebutted the presumption of dangerousness arising from his prior aggravated robberies. Specifically, he contended that he committed those crimes over ten years ago when he was a juvenile with a difficult upbringing, and that his conduct since he was released demonstrates that he is not dangerous. While McCutchen requested a hearing in his motion—and it may often be necessary or the best practice—he did not raise any basis for such a request. He did not identify a factual dispute that would require a fact-finding hearing. Nor did he specify whether anyone would testify and if so who and as to what. The district court also credited McCutchen’s arguments, so there was no need for a hearing to assess credibility. As a general rule, “[e]videntiary hearings are not necessary -5- No. 25-3887, United States v. McCutchen where the parties’ briefs clearly set forth the relevant facts and arguments of a case such that a hearing would not add anything to the briefs, and where the court has sufficient evidence before it.” Gonzales v. Galvin, 151 F.3d 526, 535 (6th Cir. 1998). And in evaluating dangerousness, district courts can “accept prior convictions without an evidentiary hearing or jury fact finding” and may review the uncontested evidence before them. Williams, 113 F.4th at 662. That is what the district court did here. Therefore, when McCutchen sought to dismiss the indictment, the district court provided him with a reasonable opportunity to mount his as-applied challenge and “present evidence that he is not dangerous.” See United States v. Poe, No. 24-6014, 2025 WL 1342340, at *2 (6th Cir. May 8, 2025). He was not entitled to a hearing. McCutchen resists this conclusion, but his arguments are unavailing. First, McCutchen argues that without a hearing, he was denied the opportunity to present the extenuating circumstances of his case that, in his view, demonstrate that he is not dangerous. But the facts he now claims he wants to present in a hearing were already before the district court. As we have acknowledged, he brought the length of time since the offenses, his age at the time, and the difficulty of his upbringing to the attention of the district court in his motion to dismiss the indictment. He detailed his homeless and parentless childhood, and also his success post-release in obtaining employment and stable housing and abstaining from alcohol and illegal drug use. The district court credited these facts yet concluded that McCutchen still did not rebut the presumption of dangerousness created by his robberies and reinforced by the fact that, at 27 years old, he violated his supervised release within a mere six months. To the extent that McCutchen wishes he could add more details describing his upbringing than he did in the motion, as were presented later -6- No. 25-3887, United States v. McCutchen in the presentence investigation report, he does not explain how they would change the court’s analysis.1 Second, McCutchen argues that our decision in Hostettler entitles him to a dangerousness hearing. But Hostettler did not announce a categorical rule. In Hostettler, the defendant moved to dismiss an indictment for violating § 922(g)(1) on Second Amendment grounds, and the district court granted it. 170 F.4th at 541. The district court decided the motion before our decision in Williams, so neither party nor the district court had the benefit of the standard Williams articulated. That means the parties did not present evidence and the district court did not adjudicate under the correct standard. Id. at 543. We decided Williams while the government’s appeal in Hostettler was pending. Id. Because of the unique timing of Hostettler, the defendant had not had an opportunity in the district court to develop a record and advance arguments pertinent to the newly announced standard. Id. As such, we remanded the case to the district court so that the defendant could have the opportunity to carry his burden. Id. at 544. That posture is a far cry from this case; here, Williams had already been decided when McCutchen moved to dismiss the indictment, the parties made arguments and proffered evidence based on the Williams standard, and the district court accordingly applied Williams in concluding that § 922(g)(1) is constitutional as applied to McCutchen. Citing Hostettler, McCutchen argues that remand is necessary so the district court can consider the evidence in the presentence investigation report that was not available when the 1 McCutchen raises one new argument on appeal as to his lack of dangerousness: that the district court allowed him to self-report for incarceration after his sentencing because of his successful pretrial supervision. However, because this fact arose from his sentencing on his § 922(g)(1) conviction, it could not have been before the district court in evaluating McCutchen’s constitutional challenge, regardless of whether he was given a hearing. We therefore do not consider it here. -7- No. 25-3887, United States v. McCutchen motion was adjudicated. In Hostettler, because the district court had granted the motion to dismiss, the record on appeal lacked additional information usually available after sentencing, such as the presentence investigation report. See 170 F.4th at 543–44. Such a deficient record distinguished Hostettler from other cases where we had found the record conclusive as to dangerousness and remand futile. Id. at 544. Here, the absence of the presentence investigation report before the district court does not raise a similar concern. It was undeniably McCutchen’s burden to show he was not dangerous; that he failed to do so does not entitle him to remand. See, e.g., Morton, 123 F.4th at 500. Finally, McCutchen alludes to a Fifth Amendment due process-based argument to support his request for a hearing. But he does not develop this claim, and we deem “[i]ssues adverted to in a perfunctory manner” waived. See United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004). Accordingly, we will not disturb the district court’s denial of McCutchen’s motion to dismiss the indictment. McCutchen had a reasonable opportunity to contextualize his criminal history and put forth evidence that § 922(g)(1) was unconstitutional as applied to him. That he failed to make such a showing and now seeks to provide further details through a hearing does not entitle him to remand. CONCLUSION We affirm. -8-