USA v. Avila

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U NITED STATES OF A MERICA ,
v. 	No. 4:26-cr-00248-P
M ARC L ANCE A VILA J R .
OPINION & ORDER
Before 	the 	Court 	is 	Defendant 	Marc 	Lance 	Avila’s 	Motion 	for
Reconsideration. ECF No. 21. Having considered the Motion, relevant
docket filings, and applicable law, the Court will DENY the Motion.
BACKGROUND
A grand jury found that, on or about May 16, 2026, Avila violated the
possession prong of 18 U.S.C. § 922(g)(1) and § 924(a)(8). Section
922(g)(1) provides, in pertinent part:
(g) It shall be unlawful for any person—(1) who has been
convicted 	in 	any 	court 	of, 	a 	crime 	punishable 	by
imprisonment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1).
On October 5, 2026, Avila filed a Motion to Dismiss Count One of the
Indictment. ECF No. 18. The Motion argues that Section 922(g)(1)
exceeds Congress’s power under the Commerce Clause and violates the
Second Amendment. The Court denied that Motion, ECF No. 19,
reasoning that his Commerce Clause challenge was foreclosed by Fifth
Circuit Precedent. Avila now asks the Court to reconsider based on his
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argument that 922(g)(1) violates the Second Amendment as applied to
him.
LEGAL STANDARD
Federal Rule of Criminal Procedure 12(b)(1) allows a defendant to
“raise by pretrial motion any defense, objection, or request that the court
can determine without a trial on the merits.” F ED. R. CR. P. 12(b)(1). In
deciding the motion, the Court should “take the allegations of the
indictment as true.” United States v. Kay, 359 F.3d 738, 742 (5th Cir.
2004) (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir.
1998)).
ANALYSIS
18 U.S.C. § 922(g)(1) prohibits the possession of firearms by convicted
felons. In support of his Motion, Avila asserts that 18 U.S.C. § 922(g)(1)
violates the Second Amendment because neither his possession nor
fraud charge would qualify for disarmament under the analysis required
by Bruen and Rahimi. ECF No. 18.
The Fifth Circuit has consistently denied as-applied challenges to
§ 922(g)(1)’s constitutionality under the Second Amendment. See United
States v. Diaz, 116 F.4th 458 (5th Cir. 2024); United States v. Contreras,
125 F.4th 725 (5th Cir. 2025); United States v. Schur, 132 F.4th 863, 870
(5th Cir. 2025); United States v. Hernandez, 159 F.4th 425, 428 (5th Cir.
2025) (“To date, this court has recognized three categories of offenses
that doom a defendant’s as-applied challenge . . . theft, violence, and
violating the terms of one’s release by possessing arms while on parole.”)
(internal marks omitted); United States v. Kimble, 142 F. 4th 308, 313
(5th Cir. 2025) (canvassing historical laws that severely punished
offenses involving theft, fraud, or deceit, including a Virginia law
punishing mail theft and counterfeiting with death or estate forfeiture).
Avila’s prior convictions for fraud-related offenses are sufficiently
analogous. Thus, Defendant’s argument that § 922(g)(1) violates the
Second Amendment as applied to him is foreclosed.
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CONCLUSION
For the foregoing reasons, the Court hereby DENIES Avila’s Motion
for Reconsideration. ECF No. 21.
SO ORDERED on this 8th day of October 2026.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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