United States of America v. Kevin Paul Cantu

United States Court of Appeals
For the Eighth Circuit
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No. 24-2338
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United States of America
Plaintiff - Appellee
v.
Kevin Paul Cantu
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 21, 2025
Filed: April 18, 2025
[Unpublished]
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kevin Cantu was charged with one count of being a prohibited person in
possession of a firearm, see 18 U.S.C. §§ 922(g)(1), (g)(9), and 924(a)(8), and one
count of possession of a firearm with an obliterated serial number, see id. §§ 922(k)
and 924(a)(1)(B). Cantu moved to dismiss both counts, arguing that the underlying

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statutes violate his Second Amendment right to possess firearms. The district court1
denied his motion to dismiss. Cantu then entered into a plea agreement in which he
pleaded guilty to the prohibited person in possession of a firearm count in exchange
for the Government’s agreement to dismiss the obliterated serial number count. In
the plea agreement, Cantu reserved his right to appeal the denial of his motion to
dismiss.
On appeal, Cantu reiterates his argument that the statutes underlying the
counts violate the Second Amendment following the Supreme Court’s recent
decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022),
and United States v. Rahimi, 602 U.S. 680 (2024). We review this argument de
novo. United States v. Hoeft, 128 F.4th 917, 921 (8th Cir. 2025).
We first dispense with Cantu’s challenge to the second count. He argues that
§ 922(k), which prohibits the possession of a firearm with an obliterated serial
number, is unconstitutional. However, the Government agreed to dismiss the
§ 922(k) count as part of the plea agreement, so Cantu’s challenge is moot. See
United States v. Askia, 893 F.3d 1110, 1122 (8th Cir. 2018) (holding that if “an
intervening circumstance deprives the [litigant] of a personal stake in the outcome”
such that resolution of an issue on appeal would no longer have any “direct
consequence” on the litigant, the issue is moot) (internal quotations omitted).
Accordingly, we do not address the merits of Cantu’s § 922(k) challenge.
We now turn to the first count, which charged Cantu with violating both
§ 922(g)(1), which prohibits convicted felons from possessing firearms, and also
(g)(9), which prohibits individuals convicted of misdemeanor domestic violence
from possessing firearms. In United States v. Jackson, we held that § 922(g)(1) is
facially constitutional under the Supreme Court’s Second Amendment
jurisprudence, including Bruen and Rahimi. 110 F.4th 1120, 1125 (8th Cir. 2024).
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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We also rejected attempts at “felony-by-felony litigation” challenging the statute’s
constitutionality as applied to individual felons. Id.; see also United States v.
Sharkey, 131 F.4th 621, 622 (8th Cir. 2025) (noting that Jackson forecloses both
facial and as-applied challenges to § 922(g)(1)). Cantu acknowledges that his
interpretation of Bruen and Rahimi conflicts with Jackson and urges us to overturn
that decision. However, we are bound by Jackson unless and until an en banc panel
of our court overturns it or the Supreme Court issues a decision inconsistent with it.
See United States v. Flynn, 969 F.3d 873, 882 (8th Cir. 2020).
We need not consider the constitutionality of § 922(g)(9), which is charged in
the same count as (g)(1). See Hoeft, 128 F.4th at 921 (having upheld a § 922(g)(1)
conviction under Jackson, declining to consider the defendant’s challenge to (g)(9));
see also United States v. Marin, 31 F.4th 1049, 1054 n.2 (8th Cir. 2022) (stating that
when a defendant’s “conviction can be sustained on any one of the § 922(g)
categories, this court need not address” whether the conviction can also be sustained
under a different § 922(g) category).
We affirm the judgment of the district court.
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