United States of America v. Earl B. Penn

United States Court of Appeals
For the Eighth Circuit
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No. 23-1262
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United States of America
Plaintiff - Appellee
v.
Earl B. Penn
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: December 16, 2024
Filed: March 24, 2025
[Unpublished]
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Before SMITH, GRUENDER, and STRAS, Circuit Judges.
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PER CURIAM.
Earl Penn received a mandatory-minimum sentence of 180 months, see 18
U.S.C. § 924(e)(1), after a jury found him guilty of unlawfully possessing a firearm,
see id. § 922(g)(1). On appeal, he argues that his conviction violates the Second
Amendment and that a fact underlying his sentence should have been determined by

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a jury, not the district court.1 Circuit precedent rules out relief on both points, so we
affirm. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It
is a cardinal rule in our circuit that one panel is bound by the decision of a prior
panel.” (citation omitted)).
I.
Under federal law, felons like Penn cannot possess firearms. See 18 U.S.C.
§ 922(g)(1) (disarming those “who ha[ve] been convicted” of “a crime punishable
by imprisonment for a term exceeding one year”). In two recent cases, we held that
this prohibition is constitutional, regardless of the facts of the crime itself or the
nature of the underlying felony.2 See United States v. Cunningham, 114 F.4th 671,
675 (8th Cir. 2024) (concluding that 18 U.S.C. § 922(g)(1) is facially constitutional);
United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024) (cutting off as-applied
challenges to the statute). To the extent Penn disagrees with either decision, his
remedy lies with the en banc court, not with us. See Liberty Mut. Ins. Co. v. Elgin
Warehouse & Equip., 4 F.3d 567, 571 (8th Cir. 1993) (“In this circuit only an en
banc court may overrule a panel decision.”).
1 The Honorable Beth Phillips, Chief Judge, United States District Court for
the Western District of Missouri.
2 Even if he could bring an as-applied challenge, cf. United States v. Veasley,
98 F.4th 906, 909 (8th Cir. 2024), it would not succeed. His criminal record includes
several convictions, some of them violent. It is safe to say that Penn “pose[s] a
credible threat to the physical safety of others.” United States v. Rahimi, 602 U.S.
680, 693 (2024); see United States v. Jackson, 85 F.4th 468, 470–72 (8th Cir. 2023)
(Stras, J., dissenting from denial of reh’g en banc) (explaining that, based on
Founding-era history, the government can strip “dangerous” individuals of their
firearms).

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II.
His other challenge arises under the Sixth Amendment. In his view, the
district court violated it by deciding whether his prior felony convictions were
“committed on occasions different from one another,” 18 U.S.C. § 924(e)(1), rather
than submitting the question to a jury for determination. Under Erlinger v. United
States, 602 U.S. 821 (2024), he is right. See U.S. Const. amend. VI. A jury must
make the different-occasions finding “unanimously and beyond a reasonable doubt.”
Erlinger, 602 U.S. at 835.
Like most other constitutional errors, however, the government can
demonstrate that any mistake was harmless beyond a reasonable doubt. See United
States v. Stowell, 82 F.4th 607, 610 (8th Cir. 2023) (en banc). Here, the undisputed
facts in the presentence investigation report, see id. at 610 n.2, show that Penn’s
prior crimes took place weeks apart and had no apparent connection with one
another, see Wooden v. United States, 595 U.S. 360, 366, 369–70 (2022). The
victims were different, and so were the places where the crimes occurred. See id. at
369–70. Based on these facts, no reasonable jury could have found that Penn
committed them on the same occasion.3 See Stowell, 82 F.4th at 610.
III.
We accordingly affirm the judgment of the district court.
3 Rather than dispute these facts, Penn insists that the statute itself is
unconstitutional “because [it] prohibits the [different-occasions] issue from being
submitted to a jury.” It does nothing of the sort. Like other criminal statutes, it just
lays out the elements, and the entitlement to a jury trial comes from the Sixth
Amendment. See Erlinger, 602 U.S. at 835.

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STRAS, Circuit Judge, concurring.
I still harbor doubts about the way the court deals with both issues. See United
States v. Jackson, 121 F.4th 656, 656–57 (8th Cir. 2024) (Stras, J., dissenting from
denial of reh’g en banc) (“[W]hat Jackson says about as-applied challenges conflicts
with both [United States v. Rahimi, 602 U.S. 680 (2024), and New York State Rifle
& Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)].”); United States v. Stowell, 82 F.4th
607, 613 (8th Cir. 2023) (Erickson, J., joined by Kelly, Grasz, & Stras, JJ.,
dissenting) (“With no admissible evidence in the record, we can have no confidence
about what a jury might have found.”). But given that our opinion today is consistent
with binding circuit precedent, I concur.
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