United States of America v. Matthew E. Mosby

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2025
Decided January 24, 2025
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-1851
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW E. MOSBY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:22CR00145-001
Matthew P. Brookman,
Judge.
O R D E R
Matthew Mosby pleaded guilty to possessing a firearm as a felon under 18 U.S.C.
§ 922(g)(1). The district judge sentenced Mosby to an above-guidelines sentence of
seven years in prison and three years of supervised release. Mosby has filed a notice of
appeal, but his appointed counsel believes that the appeal is frivolous and seeks to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Mosby has not responded to
counsel’s motion to withdraw. See C IR . R. 51(b). Based on our review of counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1851 Page 2
submission, and following our practice in similar appeals, we will suspend this appeal
to determine if it presents a nonfrivolous issue.
Counsel acknowledges that Mosby was convicted under § 922(g)(1). The
constitutionality of § 922(g)(1) has been questioned after New York State Rifle & Pistol
Association, Inc. v. Bruen, in which the Supreme Court held that restrictions on
possessing firearms are constitutional only if there is a tradition of such regulation in
the Nation’s history. 597 U.S. 1, 24 (2022). We have been holding in abeyance appeals
involving convictions under § 922(g)(1) pending the outcome of United States v. Prince,
No. 23-3155 (7th Cir. argued Dec. 11, 2024), in which we will determine whether that
statute violates the Second Amendment. See, e.g., United States v. Mowen, No. 23-1890
(7th Cir. Feb. 23, 2024); United States v. Taylor, No. 22-3298 (7th Cir. July 9, 2024).
We acknowledge that Mosby did not preserve this challenge in the district court,
so our review would be for plain error. See Greer v. United States, 593 U.S. 503, 507
(2021). Under the state of the law as of today, any error would not be plain. Still, after
Prince is decided, Mosby might be able to argue reasonably that the district judge
plainly erred in this case. See Henderson v. United States, 568 U.S. 266, 269 (2013) (error
may become “plain” under precedents released while appeal is pending). For that
reason, we suspended the appeal sua sponte in United States v. Randall, No. 23-1261
(7th Cir. May 8, 2024), an Anders case implicating a potential plain-error challenge to
§ 922(g)(1). We also note that Mosby does not face another, concurrent sentence that
might obviate a plain-error challenge to § 922(g). Cf. United States v. Leija-Sanchez, 820
F.3d 899, 902 (7th Cir. 2016) (concurrent sentences can justify refusal to review possible
plain error in the lesser sentence). Thus, consistent with our practice in these cases, we
will hold this appeal in abeyance pending the outcome of Prince.
Proceedings in this appeal are SUSPENDED pending resolution of Prince.
Counsel shall file a statement of position within 14 days of a decision in that case,
stating whether counsel intends to withdraw the Anders motion or further supplement
the Anders brief, or whether a further stay is appropriate.

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