United States of America v. Keshon Daveon Baxter

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-2752
___________________________
United States of America
Plaintiff - Appellee
v.
Keshon Daveon Baxter
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: April 16, 2026
Filed: July 13, 2026
____________
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
A federal grand jury indicted Keshon Baxter on a charge of possessing a
firearm as an unlawful drug user in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(8). After proceedings before this Court and remand back to the district court,1
1The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

-- 1 of 11 --

-2-
Baxter made an oral renewed motion to dismiss his indictment, arguing
that § 922(g)(3) is unconstitutional as applied to him. The district court reserved
ruling on this motion pending his trial and a post-trial dangerousness hearing. At a
bench trial on stipulated facts and evidence, the district court found Baxter
provisionally guilty until it resolved his constitutional challenge contained within
his motion to dismiss. The district court then held an evidentiary hearing regarding
Baxter’s motion to dismiss and subsequently denied it. It then sentenced him to 64
months’ imprisonment and 3 years’ supervised release. Baxter appeals the denial of
his motion to dismiss the indictment. Having jurisdiction under 28 U.S.C. § 1291,
we affirm.
I.
On May 21, 2023, gang members from two gangs—Strap and C-Block—
began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was
involved in this fight. When law enforcement attempted to break up the fight, the
gang members ran in opposite directions, but resumed fighting 30 minutes later. The
officers again approached, and Baxter and other Strap members chased the C-Block
gang. As the officers were pursuing the chase, a bystander told them that Baxter had
a gun. The officers then confronted Baxter and asked what was in his pocket. Baxter
responded, “nothing” and ran from the officers. He was apprehended shortly
thereafter. The officers searched Baxter and found a loaded pistol and a baggie of
marijuana on his person. The officers then obtained a search warrant to test Baxter’s
urine for the presence of controlled substances; the test confirmed the presence of
THC or marijuana metabolites. Baxter was subsequently charged in a one-count
indictment for being an unlawful drug user in possession of a firearm (namely, a
Taurus 0.40 caliber pistol) between August 31, 2022, and May 21, 2023.
This is the second time this case has been before our Court. In August 2023,
Baxter filed a motion to dismiss his indictment on the grounds that 18
U.S.C. § 922(g)(3) violated the Second Amendment as applied to him; he also
claimed that the statute was unconstitutionally vague. The district court denied his
motion without a hearing, and Baxter entered a conditional guilty plea to being an

-- 2 of 11 --

-3-
unlawful user of marijuana in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(3) and 924(a)(8) but reserved the right to appeal the district court’s
ruling on his motion to dismiss. The district court sentenced him to 64 months’
imprisonment. Baxter appealed.
We affirmed the district court’s conclusion that § 922(g)(3) was not
unconstitutionally vague but reversed and remanded its denial of Baxter’s motion to
dismiss, finding that the record was insufficient to determine whether § 922(g)(3)
was unconstitutional as applied to him. See United States v. Baxter, 127 F.4th 1087,
1090-92 (8th Cir. 2025). On remand, the district court granted Baxter leave to
withdraw his guilty plea. He did so. The parties then proceeded to a bench trial on
a stipulated record, and the district court found Baxter guilty. The district court then
held an evidentiary hearing regarding Baxter’s motion to dismiss.
At the evidentiary hearing, the Government introduced photographs and
videos taken by law enforcement and from Baxter’s social media accounts, police
reports, and physical evidence. Many of these photos and videos showed Baxter
smoking or possessing marijuana, while others depicted Baxter displaying,
brandishing, or pointing various firearms at the camera. The Government also
presented testimony from Dr. Marilyn Huestis, a toxicologist, and detective Jeffrey
George of the Des Moines Police Department.
Dr. Huestis has more than 55 years of experience as a pharmacologist and
toxicologist. Although she did not evaluate Baxter, she testified that there is a strong
connection between chronic cannabis use and aggressive and violent behavior. She
noted that such behaviors are also common symptoms of withdrawal, which
individuals can experience several days after their last marijuana use.
Detective George works in the Des Moines Police Department’s Intelligence
Section, and his expertise is in gang-related crime and violent crime. He
acknowledged that Baxter admitted he started using marijuana at age 13. Moreover,
he testified that although Baxter claimed he smoked one blunt of marijuana twice a

-- 3 of 11 --

-4-
week, from his review of Baxter’s Snapchat activity from January 2022 to March
2023, he posited that Baxter used marijuana daily as “[t]here were hundreds of
videos of him in possession of and consuming marijuana.” He also testified that
there were a similar number of photos and videos showing Baxter possessing
firearms; Baxter frequently posted photos and videos with at least ten different
firearms—four of which are now in law enforcement possession.
Following the evidentiary hearing, the district court denied Baxter’s motion
to dismiss, holding that § 922(g)(3) did not violate the Second Amendment as
applied to him. It applied the two-part Bruen2 test and first concluded that Baxter’s
conduct was clearly protected by the plain text of the Second Amendment. As to
prong two, the district court concluded that the Government has the burden of
establishing the facts necessary to demonstrate a historical analogue by a
preponderance of the evidence. It acknowledged that this Court has recognized two
historical analogues for § 922(g)(3): the longstanding tradition of disarming those
who are both mentally ill and dangerous and those who terrorize or threaten others.
It went on to hold that § 922(g)(3) was constitutional as applied to Baxter under both
analogues. First, it concluded that his conduct on the night of his arrest was
“precisely the type of dangerous behavior which would have been prohibited under
historical analogue for the mentally ill.” Second, the court held that Baxter terrorized
and posed a credible threat to public safety based on his criminal history, his social
media activity, and his conduct on the night of his arrest. Accordingly, the district
court sentenced Baxter to 64 months’ imprisonment and 3 years’ supervised release.
Baxter appeals the district court’s denial of his motion to dismiss.
II.
Baxter contends that the district court erred in denying his motion to dismiss
because, as applied to him, 18 U.S.C. § 922(g)(3) violates his Second Amendment
right to keep and bear arms. “We review the decision denying dismissal of the
2N.Y. State Rifle & Pistol Ass’n, v. Bruen, 597 U.S. 1, 26 (2022).

-- 4 of 11 --

-5-
indictment de novo and the underlying factual findings for clear error.” United
States v. Woods, 978 F.3d 554, 564 (8th Cir. 2020) (citation omitted).
Pursuant to 18 U.S.C. § 922(g)(3), unlawful drug users are prohibited from
possessing firearms. “We have held that a defendant falls within the statute’s ambit
if he ‘was actively engaged in the use of a controlled substance during the time he
possessed firearms.’” United States v. Perez, 145 F.4th 800, 804 (8th Cir. 2025)
(citation omitted). Baxter does not contest that he was a marijuana user at the time
that he possessed his Taurus 0.40 caliber pistol. Rather, he contends that his
indictment under § 922(g)(3) violates his Second Amendment rights.
As Baxter raises an as-applied challenge, we must look at the facts of his case
to determine whether his indictment deprived him of his Second Amendment rights.
See id. “A two-part test, based on ‘text and historical understanding,’ governs” such
a challenge. United States v. Veasley, 98 F.4th 906, 909 (8th Cir. 2024) (quoting
Bruen, 597 U.S. at 26). We first ask if “the Second Amendment’s plain text covers
an individual’s conduct.” Bruen, 597 U.S. at 17. If so, then the Government must
show that the “regulation is consistent with this Nation’s historical tradition.” Id.
We have previously concluded that “drug users ‘are part of “the people” whom the
Second Amendment protects.’” Veasley, 98 F.4th at 910 (citation omitted). Neither
party argues for a contrary result here. Accordingly, we conclude that the Second
Amendment covers Baxter’s conduct, so we must resolve only whether Baxter’s
indictment is “analogically consistent with firearms regulation at the Founding.”
Perez, 145 F.4th at 804.
A.
The Government has the burden of demonstrating that § 922(g)(3), as applied
to Baxter, comports with this Nation’s historical tradition of firearm regulation. See
Bruen, 597 U.S. at 24. However, the parties dispute what standard of proof applies
to this burden. The district court concluded that the Government has the burden of
establishing the facts necessary to demonstrate that Baxter’s conduct is consistent

-- 5 of 11 --

-6-
with a historical analogue by a preponderance of the evidence. Baxter contends that
the Government should be held to a reasonable doubt standard.3
Although we have not weighed in on this question before, we agree with the
district court that a preponderance of the evidence standard is appropriate. The
district court reasoned that adopting a preponderance standard does not violate
Baxter’s due process rights because determining whether the application of
§ 922(g)(3) as applied to him is consistent with the Nation’s historical tradition of
firearm regulation is not an element of the crime. We agree. See In re Winship, 397
U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.”); see also United
States v. Ochoa Moreno, 811 F. Supp. 3d 981, 986 (S.D. Iowa 2025) (“The Due
Process Clause does not require proof beyond a reasonable doubt every time the
Government must justify a burden on a fundamental right.” (collecting cases)).
Baxter’s reliance on the Supreme Court’s decision in Chapman v. California, 386
U.S. 18 (1967), to suggest a contrary result is in vain. There, the Supreme Court
held that before a “federal constitutional error [at trial] can be held harmless,” it must
be “harmless beyond a reasonable doubt.” Id. at 24. However, Baxter does not
argue that the district court committed any constitutional errors at his bench trial, so
Chapman is inapposite. As such, we conclude that the Government must establish
3It is unclear whether Baxter challenges the Government’s burden of proof in
identifying historical analogues or its burden in demonstrating that his conduct is
relevantly similar to a historical analogue. Regarding the former inquiry, the
Supreme Court has stated that the Second Amendment does not require the
Government to identify “a historical twin,” Bruen, 597 U.S. at 30 (emphasis
omitted), and this Court has held that § 922(g)(3) comports with the Nation’s history
of firearm regulation when the use of a controlled substance made the defendant act
like someone mentally ill and dangerous or caused the defendant to induce terror or
pose a credible threat to the safety of others. See, e.g., United States v. Cooper, 127
F.4th 1092 (8th Cir. 2025); see also Perez, 145 F.4th 800. We therefore assume that
Baxter advances only the latter argument—that the Government has not met its
burden in establishing that his conduct falls within the scope of the identified
historical analogues.

-- 6 of 11 --

-7-
the facts necessary to demonstrate that Baxter’s conduct is consistent with a
historical analogue by a preponderance of the evidence.
B.
Next, we must examine whether Baxter’s indictment is consistent with firearm
regulation at the Founding. The district court concluded that § 922(g)(3) is
constitutional as applied to Baxter under both Founding-era analogues that we
identified in Veasley and Cooper: “confinement of the mentally ill” and the
“criminal prohibition on taking up arms to terrify the people.” See Veasley, 98 F.4th
at 912, 916; United States v. Cooper, 127 F.4th 1092, 1095-96 (8th Cir. 2025). The
Government advances these same two historical analogues on appeal as well as the
Founding-era prohibition on the possession of firearms by habitual drunkards. As
we only need to identify one historical analogue, our analysis will start and end with
the “Terror of the People” analogue. Veasley, 98 F.4th at 916; see Bruen, 597 U.S.
at 30 (explaining that “analogical reasoning requires only that the government
identify a well-established and representative historical analogue, not a historical
twin” (emphasis added and omitted)).
We have held that § 922(g)(3) is consistent with the Second Amendment when
a drug user’s conduct is analogous to conduct falling within the “criminal prohibition
on taking up arms to terrify the people.” Cooper, 127 F.4th at 1095 (citation
omitted); see also United States v. Rahimi, 602 U.S. 680, 693 (2024) (“[T]he Second
Amendment permits the disarmament of individuals who pose a credible threat to
the physical safety of others.”). We explained that Founding-era laws authorized
imprisonment and forfeiture of arms when an individual offensively used a firearm
to terrorize others. See Cooper, 127 F.4th at 1095 (“As ‘a mechanism for punishing
those who had menaced others with firearms,’ an essential element was ‘terrorizing
behavior . . . accompany[ing] the possession[.]’” (second and third alteration in
original) (citation omitted)).

-- 7 of 11 --

-8-
Baxter argues that the Government failed to prove that his conduct was
sufficiently analogous to the proscribed behavior under this historical analogue. The
Government counters that Baxter’s criminal history, social media activity, and
conduct on the night of his arrest demonstrate that his behavior is relevantly similar
to the conduct prohibited under the historical laws that criminalized terrorizing
others. The district court agreed with the Government.
To determine if Baxter’s conduct is relevantly similar to the conduct
sanctioned by the Terror of the People laws, we ask if Baxter’s marijuana use “would
or did make him ‘induce terror, or pose a credible threat to the physical safety of
others with a firearm.’” Perez, 145 F.4th at 809 (citation omitted). The answer is
undoubtedly yes. Baxter began using marijuana when he was 13 years old; he used
marijuana on a regular basis; and a sample of his urine taken following his arrest
tested positive for marijuana metabolites. At the evidentiary hearing, Dr. Huestis
explained that there is a strong connection between chronic cannabis use and
aggression and violence and that individuals can experience the cognitive effects of
withdrawal—including irritability and aggressiveness—for several days after their
last use. Baxter’s behavior on the night of his arrest mirrored Dr. Heustis’s findings:
he acted aggressively and combatively in his interactions with law enforcement and
civilians. Baxter—accompanied by fellow gang members—twice engaged in
altercations with a rival gang while displaying or otherwise indicating his possession
of a firearm. His behavior caused a bystander to report to law enforcement his
suspicion that Baxter had a firearm, and Baxter ran from an officer when asked what
was in his pocket.
Based on this conduct, the district court did not err in concluding by a
preponderance of the evidence that Baxter’s conduct on the night of the arrest was
sufficiently analogous to prohibited behavior under Founding-era going-armed laws.
As the district court pointed out, even if Baxter did not openly brandish his firearm,
Baxter’s possession of a firearm was obvious enough that an innocent bystander
reported it to the police. And when officers attempted to talk to Baxter, he fled. As
such, we agree with the district court’s assessment that Baxter “absolutely presented

-- 8 of 11 --

-9-
a credible threat to the safety of others” as he “engaged in a sustained public
confrontation while acting aggressively with other gang members and in possession
of a loaded firearm.” Unlike in Perez, here, the district court made an explicit finding
that marijuana impaired Baxter’s judgment on the night that he was arrested such
that it caused him to “threaten[] the physical safety of civilians, law enforcement,
and his adversaries alike.” See 145 F.4th at 808 (explaining that remand was
appropriate because “the district court did not make an explicit finding that
marijuana impaired [the defendant’s] decision-making on the day of the car chase
such that it caused him to threaten others’ safety, or that he induced terror by driving
at high speeds while under the influence of marijuana”). And the record amply
supports this finding. Accordingly, we conclude that the district court did not err in
denying Baxter’s motion to dismiss as the Government met its burden in
demonstrating that Baxter’s conduct was sufficiently analogous to the conduct
prohibited by the Founding-era Terror of the People laws. The Supreme Court’s
very recent unanimous decision in United States v. Hemani is not to the contrary.
No. 24-1234, 2026 WL 1751710, at *11 (June 18, 2026) (“We do not even address
whether the government could bring a prosecution under § 922(g)(3) accompanied
by individualized proof that the defendant’s use of marijuana (or any other drug)
renders him a danger to himself or others. Or proof that a certain drug always renders
its users dangerous because of its potency or for some other reason. None of those
issues is before us and we do not pass on them either way.”).4
III.
For the foregoing reasons, we affirm the district court’s denial of Baxter’s
motion to dismiss.
4As we may affirm based on any grounds supported by the record, see Mitchell
v. Dakota Cnty. Soc. Servs., 959 F.3d 887, 896 (8th Cir. 2020), we decline to address
Baxter’s other arguments concerning the Government’s evidence regarding his
social media activity and criminal history.

-- 9 of 11 --

-10-
STRAS, Circuit Judge, concurring in the judgment.
The law should not be a game of telephone. But our drug-user-in-possession
cases have become one because the rule now “bears little resemblance to” what we
said “at the start.” Reprod. Health Servs. of Planned Parenthood of the St. Louis
Region, Inc. v. Parson, 1 F.4th 552, 568 (8th Cir. 2021) (Stras, J., dissenting), reh’g
en banc granted, opinion vacated (July 13, 2021). The relevant non-causal question
United States v. Cooper asked was whether a defendant had “induce[d] terror . . . or
pose[d] a credible threat to the physical safety of others with a firearm.”5 127 F.4th
1092, 1096 (8th Cir. 2025) (citations omitted).
Just months later, the inquiry morphed into whether drug use “caused” a
defendant “to induce terror or pose a danger to others with a firearm.” United States
v. Perez, 145 F.4th 800, 809–10 (8th Cir. 2025) (emphasis added). Yet Perez also
insisted it was remanding “[i]n light of . . . Cooper.” Id. at 802. Both could not be
true. Much like the telephone game, an innocent mistake—adding the word
“caused”—had changed the message. See Parson, 1 F.4th at 568 (Stras, J.,
dissenting); see also Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021)
(warning against the “risk” of “converting the ultimate message into something quite
different from the original [one]” like in the “game of telephone” (citation omitted)).
Perhaps far more than anyone thought. See United States v. Ledvina, 166 F.4th 716,
721 (8th Cir. 2026).
Just consider a drug user who argues that, high or not, he is flat-out dangerous
with guns. Suppose further that the evidence supports the argument: he ordinarily
uses them in a terrorizing way. He is so dangerous, in fact, that drug use hardly
5Other circuits have had no trouble sticking to Cooper’s formulation. See
United States v. Seiwert, 152 F.4th 854, 871 (7th Cir. 2025) (noting that “going-
armed laws may justify applying § 922(g)(3) to drug users engaging in terrifying
conduct” (emphasis added)); United States v. VanOchten, 150 F.4th 552, 558–62
(6th Cir. 2025) (rejecting the argument that “drug use” must “predispose[] [the
defendant] to violence”).

-- 10 of 11 --

-11-
moves the needle. Rather than just disarming him for terrorizing others, like the
historical analogues allow, Perez gives life to the absurd argument that he can have
them because drugs did not cause him to be dangerous. Compare Cooper, 127 F.4th
at 1095–96 (explaining that historical laws permitted disarmament if “terrorizing
behavior . . . accompan[ied] the possession” (ellipsis in original) (citation omitted)),
and United States v. Veasley, 98 F.4th 906, 916–17 (8th Cir. 2024) (discussing
“Terror of the People” laws that allowed disarmament for using weapons “in a way
that terrorized others”), with Perez, 145 F.4th at 809 (requiring the court to find that
the drug use “would or did make [the defendant] induce terror” (citation omitted)).
Fortunately, our first-in-time rule offers an easy fix.6 See United States v.
Johnson, 688 F.3d 494, 501 (8th Cir. 2012) (recognizing that when two panel
opinions conflict, “we are bound to follow the earliest opinion . . . as it should have
controlled the subsequent panels that created the conflict” (ellipsis in original)
(citation omitted)). Given that Ledvina and Perez said they were following Cooper,
why not take them at their word? See Perez, 145 F.4th at 807 (remanding “because
the district court and the parties lacked Cooper’s guidance”); Ledvina, 166 F.4th at
717 (doing the same “[i]n light of th[e] [c]ourt’s decisions in [Perez] and [Cooper]”).
If we do, all that matters is that Baxter was a drug user who actually “pose[d] a
credible threat to the physical safety of others with a firearm.” Cooper, 127 F.4th at
1096 (quoting United States v. Rahimi, 602 U.S. 680, 700 (2024)). I would start and
end the analysis there.
______________________________
6Perhaps the argument is so absurd that no panel of this court would accept it,
first-in-time rule or not. After all, like most things, dangerousness usually has more
than a single cause, and Perez does not say drug use has to be the only one. Cf.
Olympic Airways v. Husain, 540 U.S. 644, 653 (2004) (recognizing “the reality that
there are often multiple interrelated factual events that combine to cause any given
injury”). But following the rule not only provides a sure-fire way to brush away an
absurd argument, it avoids the need for expert testimony connecting drugs to
dangerousness in obvious cases like this one.

-- 11 of 11 --