United States v. Simmons

21-3064 (L)
United States v. Simmons
In the
United States Court of Appeals
For the Second Circuit
August Term, 2022
Nos. 21-3064 (L), 22-118 (XAP)
U NITED S TATES OF AMERICA,
Appellee-Cross-Appellant,
v.
VALDEZ S IMMONS, AKA S EALED DEFENDANT 1,
Defendant-Appellant-Cross-Appellee.∗
On Appeal from a Judgment of the United States District Court for
the Southern District of New York.
ARGUED: J UNE 2, 2023
D ECIDED: AUGUST 11, 2025
Before: N ARDINI , PÉREZ , and KAHN, Circuit Judges.
∗ The Clerk of Court is respectfully directed to amend the case caption as
indicated above.

-- 1 of 20 --

2
Defendant-Appellant-Cross-Appellee Valdez Simmons
pleaded guilty to one count of possessing a firearm after being
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9). The United States District Court for the
Southern District of New York (P. Kevin Castel, District Judge)
subsequently sentenced Simmons to forty-eight months of
imprisonment and three years of supervised release. On appeal,
Simmons argues that § 922(g)(9) violates the Second Amendment to
the U.S. Constitution, and that his sentence is procedurally and
substantively unreasonable. In its cross-appeal, the Government
initially challenged the district court’s conclusion that a 2013 state
drug conviction in Simmons’ criminal record was not a “controlled
substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). The Government
now concedes, however, that our decision in United States v. Minter,
80 F.4th 406 (2d Cir. 2023), issued during the pendency of this appeal,
forecloses that argument. We conclude that § 922(g)(9) is
constitutional, and that Simmons’ sentencing challenges are moot,
now that he has completed his prison term. Moreover, we agree with
the Government that Minter forecloses its cross-appeal. Accordingly,
we DISMISS Simmons’ appeal in part as moot and otherwise AFFIRM
the district court’s judgment of conviction and sentence.
WON S. S HIN (T. Josiah Pertz, Michael D.
Maimin, on the brief), Assistant United States
Attorneys, for Damian Williams, United
States Attorney, Southern District of New

-- 2 of 20 --

3
York, New York, NY, for Appellee-Cross-
Appellant.
KENDRA L. H UTCHINSON, Appeals Bureau,
Federal Defenders of New York, Inc., New
York, NY, for Defendant-Appellant-Cross-
Appellee.
WILLIAM J. N ARDINI , Circuit Judge:
Pursuant to 18 U.S.C. § 922(g)(9), those who have been
convicted of a misdemeanor crime of domestic violence may not
“possess in or affecting commerce, any firearm or ammunition.” In
2012, after he beat the mother of his infant child, Defendant-
Appellant-Cross-Appellee Valdez Simmons was convicted of assault
in the third degree under N.Y. Penal Law § 120.001. Simmons does
not dispute that this offense constitutes a “misdemeanor crime of
domestic violence” for purposes of § 922(g)(9). Several years later,
Simmons was arrested in New York City and found to be in
possession of a .380 caliber Kel-Tec model P-3AT pistol. Simmons
subsequently pleaded guilty to one count of violating § 922(g)(9), and
the United States District Court for the Southern District of New York
(P. Kevin Castel, District Judge) sentenced him to forty-eight months
in prison, to be followed by three years of supervised release.
Simmons now appeals both his conviction and sentence,
arguing that § 922(g)(9) violates the Second Amendment to the U.S.
Constitution, and that his prison sentence is procedurally and

-- 3 of 20 --

4
substantively unreasonable. The Government filed a cross-appeal of
the sentence, challenging the district court’s conclusion that
Simmons’ 2013 conviction for criminal possession of a controlled
substance in the third degree under N.Y. Penal Law § 220.16(1) was
not a “controlled substance offense” for purposes of determining his
base offense level under the U.S. Sentencing Guidelines. 1 The
Government now concedes, however, that our decision in United
States v. Minter, 80 F.4th 406 (2d Cir. 2023), issued during the
pendency of this appeal, forecloses that argument.
We conclude that § 922(g)(9) is constitutional, and that
Simmons’ sentencing challenges are moot, now that he has completed
his prison term. In addition, we agree with the Government that our
decision in Minter forecloses its cross-appeal. Accordingly, we
DISMISS Simmons’ appeal in part as moot and otherwise AFFIRM
the district court’s judgment of conviction and sentence.
I. Background
In May of 2020, a pedestrian on Mace Avenue in the Bronx
alerted a police officer that a man, later identified to be Simmons, had
a gun. The officer yelled for Simmons to stop, but he instead began
to run. The officer chased Simmons onto Cruger Avenue and then
into a narrow driveway between two buildings. After seeing
Simmons rise from behind a car parked in the driveway, the officer
shouted for him to lie down on the ground. Instead of obeying this
1 This case was held pending this Court’s decisions in Zherka v. Bondi, 140
F.4th 68 (2d Cir. 2025), and United States v. Minter, 80 F.4th 406 (2d Cir. 2023).

-- 4 of 20 --

5
command, Simmons began walking toward the officer, who again
told him to get on the ground. Simmons continued walking closer to
the officer but eventually lay down on the sidewalk and was arrested.
During the incident, officers found a gun and an ammunition
magazine under the car in the driveway. The firearm was a .380
caliber Kel-Tec model P-3AT pistol, which had been manufactured
outside the state of New York.
In June of 2020, a grand jury returned a one-count indictment
charging Simmons with possessing a firearm after having been
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9). Simmons’ domestic violence conviction
stemmed from an incident in 2011 when he beat the mother of his
infant child. According to an affidavit submitted by the victim,
Simmons began punching her in the face and body, even though their
five-month-old daughter was in between them, because he was upset
with her for turning off the television. The victim picked up the child
and tried to run away, but Simmons kept punching and biting her as
she asked him to stop and watch out for their daughter. Simmons
was subsequently convicted of assault in the third degree in violation
of N.Y. Penal Law § 120.001.
Simmons is no stranger to the criminal justice system. His 2012
domestic violence conviction was one of more than a dozen state
convictions in his criminal record at the time of his arrest in this case.
He had been convicted for various other assaults, an attempted
assault, petit and grand larceny, robbery, menacing, criminal
possession of a weapon, criminal possession of a controlled

-- 5 of 20 --

6
substance, criminal possession of stolen property, intent to obtain
transportation without paying, attempted possession of burglar’s
tools, false personation, operating a vehicle while impaired by drugs,
and bail jumping. As relevant to the Government’s cross-appeal,
Simmons was convicted in 2013 of criminal possession of a controlled
substance in the third degree, in violation of N.Y. Penal Law
§ 220.16(1).
On February 22, 2021, Simmons pleaded guilty, without a plea
agreement, to the one-count indictment. The district court held a
sentencing hearing on December 14, 2021. At sentencing, the court
addressed the parties’ dispute as to whether Simmons’ 2013 state
drug conviction constituted a “controlled substance offense” for
purposes of determining his base offense level under the U.S.
Sentencing Guidelines. The court held that, because New York state
law defines “controlled substance” more broadly than federal law, the
2013 conviction was not a controlled substance offense under U.S.S.G.
§ 2K2.1(a)(4)(A). After calculating Simmons’ advisory range of
imprisonment under the Guidelines to be twenty-seven to thirty-
three months, the district court imposed an above-Guidelines-range
sentence of forty-eight months of imprisonment and three years of
supervised release. Both Simmons and the Government appealed.
In his initial briefing on appeal, Simmons argued that the
district court violated 18 U.S.C. § 3582(a) by considering his medical
needs when imposing his prison sentence, and that his prison
sentence was otherwise substantively unreasonable. While this
appeal was pending, the Supreme Court issued its decision in New

-- 6 of 20 --

7
York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). With this
Court’s permission, Simmons filed a supplemental brief arguing that
§ 922(g)(9) violates the Second Amendment. Simmons was released
from prison on February 12, 2024, and he is currently on supervised
release.
In its cross-appeal, the Government challenged the district
court’s determination that Simmons’ 2013 conviction for violating
N.Y. Penal Law § 220.16(1) is not a “controlled substance offense”
under U.S.S.G. § 2K2.1(a)(4)(A). While this appeal was pending,
however, we issued our decision in Minter. The Government
concedes that Minter forecloses its cross-appeal.
II. Discussion
We conclude that § 922(g)(9) is constitutional, and that
Simmons’ sentencing challenges no longer present a live controversy.
In addition, we agree with the Government that our decision in Minter
forecloses its cross-appeal. Accordingly, we dismiss Simmons’
appeal in part as moot, and we otherwise affirm the district court’s
judgment of conviction and sentence.
A. Constitutionality of 18 U.S.C. § 922(g)(9)
We begin by rejecting Simmons’ challenge to the
constitutionality of § 922(g)(9). Simmons concedes that plain error
review applies here because he raised his constitutional challenge for
the first time on appeal. See Fed. R. Crim. P. 52(b); United States v.
Donziger, 38 F.4th 290, 302–03 (2d Cir. 2022). To prevail on plain error

-- 7 of 20 --

8
review, an appellant must show “that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable dispute; (3) the
error affected the appellant’s substantial rights, which in the ordinary
case means it affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S.
258, 262 (2010) (alterations adopted) (internal quotation marks
omitted). Under the first prong—whether there is any error at all—
we review the constitutionality of § 922(g)(9) de novo. See United States
v. Houtar, 980 F.3d 268, 273 (2d Cir. 2020). Because we conclude that
Simmons has not shown any error, much less error that is clear or
obvious, we affirm the district court’s judgment of conviction without
reaching the other three prongs of plain error review.
The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.” U.S. Const. amend.
II. In Bruen, the Supreme Court set forth a two-step framework for
determining whether a statute violates the Second Amendment. See
597 U.S. at 17; Zherka v. Bondi, 140 F.4th 68, 75–79 (2d Cir. 2025). First,
we determine whether “the Second Amendment’s plain text covers
an individual’s conduct.” Bruen, 597 U.S. at 17. If it does not, then
there has been no constitutional violation. If, on the other hand, the
Second Amendment’s plain text covers the conduct at issue, then “the
Constitution presumptively protects that conduct,” and we proceed
to step two. Id. At the second step, the government must “justify its
regulation” by demonstrating that it is “consistent with this Nation’s

-- 8 of 20 --

9
historical tradition of firearm regulation.” Id. To meet this burden,
the government must “identify a well-established and representative
historical analogue” to the challenged regulation. Id. at 30 (emphases
omitted). “Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct
falls outside the Second Amendment’s unqualified command.” Id. at
17 (internal quotation marks omitted).
Here, we conclude that, although the Second Amendment’s
plain text covers Simmons’ conduct, the Government has met its
burden of showing that § 922(g)(9) is consistent with this nation’s
historical tradition of firearm regulation. Accordingly, and because
Simmons offers no basis to distinguish himself from other domestic
violence misdemeanants for purposes of assessing the
constitutionality of the statute, we conclude that § 922(g)(9) is
constitutional, both facially and as applied to him.
First, the plain text of the Second Amendment covers the
conduct charged in this case. As the Supreme Court made clear in
Bruen, “the Second and Fourteenth Amendments protect an
individual’s right to carry a handgun for self-defense outside the
home.” Id. at 10. Section 922(g)(9), however, prohibits those “who
ha[ve] been convicted in any court of a misdemeanor crime of
domestic violence” from “possess[ing] in or affecting commerce, any
firearm or ammunition,” including for self-defense outside the home,
see Zherka, 140 F.4th at 76. Simmons’ conviction in this case resulted
from his possession of a handgun—namely, a .380 caliber Kel-Tec
model P-3AT pistol—outside his home. Thus, § 922(g)(9) “clearly

-- 9 of 20 --

10
covers conduct that the Second Amendment presumptively protects.”
Id.
Because the Second Amendment is presumed to protect
Simmons’ offense conduct, the only remaining question at step one of
our Bruen analysis is whether Simmons, as a domestic violence
misdemeanant, “is included among ‘the people’ protected by the
Second Amendment.” Id. We conclude that he is.
At the outset, we agree with the Sixth Circuit that the Supreme
Court’s recent decision in United States v. Rahimi, 602 U.S. 680 (2024),
suggests that domestic violence misdemeanants are indeed part of
“the people” whose conduct the Second Amendment protects. See
United States v. Gailes, 118 F.4th 822, 826 (6th Cir. 2024). In Rahimi, the
Court assessed the constitutionality of § 922(g)(8), which prohibits a
person subject to a domestic violence restraining order from
possessing a firearm or ammunition if the order “includes a finding
that he represents a credible threat to the physical safety of an
intimate partner, or a child of the partner or individual.” 602 U.S. at
684–86 (alteration adopted) (internal quotation marks omitted). In
finding the statute constitutional, the Court proceeded directly to step
two of the Bruen analysis, without addressing whether the
defendant’s conduct was covered by the Second Amendment’s plain
text. Id. at 690. The Court’s decision to do so implies a general
understanding that, despite their past offenses, domestic violence
misdemeanants nonetheless fall within “the people.” See id. at 708
(Gorsuch, J., concurring) (“[N]o one questions that [§ 922(g)(8)]
addresses individual conduct covered by the text of the Second

-- 10 of 20 --

11
Amendment.”); see also United States v. Jackson, 138 F.4th 1244, 1253 n.4
(10th Cir. 2025) (“The Supreme Court presumed, without any
analysis, persons with an outstanding domestic violence restraining
order were part of the people.”).
Moreover, as we explained in Zherka, the Supreme Court has
“defined ‘the people’ broadly to include ‘all Americans’”—that is, “all
members of the political community, not an unspecified subset.” 140
F.4th at 76 (quoting, in part, District of Columbia v. Heller, 554 U.S. 570,
580, 581 (2008)). In Zherka, we rejected the premise “that there are
certain groups of people—for example, violent felons—who fall
entirely outside the Second Amendment’s scope.” Id. (quoting Kanter
v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting)). We
explained that the better approach to assessing the constitutionality
of gun dispossession laws is to recognize that “all people have the
right to keep and bear arms but . . . history and tradition support
Congress’s power to strip certain groups of that right.” Id. (quoting
Kanter, 919 F.3d at 452 (Barrett, J., dissenting)). Applying this
approach, we held that felons are among “the people” whose conduct
the Second Amendment protects. Id. at 75–77.
Here, the Government offers no basis to distinguish domestic
violence misdemeanants from felons for purposes of defining “the
people.” Nor does it otherwise argue that Simmons is not properly
considered part “of the political community.” Heller, 554 U.S. at 580.
Accordingly, we conclude that the Constitution presumptively
protects Simmons’ conduct. The Government must therefore justify

-- 11 of 20 --

12
§ 922(g)(9) by demonstrating that it is consistent with this nation’s
historical tradition of firearm regulation.
Turning to the second step of our analysis, we join every other
Circuit that has addressed the issue post-Bruen in concluding that the
Government has met its burden of justifying § 922(g)(9). See Jackson,
138 F.4th at 1253–55; United States v. Nutter, 137 F.4th 224, 231–32 (4th
Cir. 2025); United States v. Bernard, 136 F.4th 762, 765–66 (8th Cir.
2025); Gailes, 118 F.4th at 827–28. Before 1996, “a dangerous loophole
in the gun control laws” allowed domestic violence misdemeanants
to possess firearms. United States v. Castleman, 572 U.S. 157, 160 (2014)
(alteration adopted) (internal quotation marks omitted).
“Recognizing that firearms and domestic strife are a potentially
deadly combination,” id. at 159 (alteration adopted) (internal
quotation marks omitted), Congress enacted § 922(g)(9) to disarm
those convicted of a “misdemeanor crime of domestic violence,”
defined to include offenses involving “the use or attempted use of
physical force” or “the threatened use of a deadly weapon” by, among
other people, a parent, guardian, current or former spouse, or dating
partner of the victim, 18 U.S.C. § 921(a)(33)(A)(ii). Guided by the
Supreme Court’s decisions in Bruen and Rahimi, as well as our recent
application of those two cases in Zherka, we conclude that disarming
domestic violence misdemeanants fits neatly within this nation’s
historical tradition of disarming those deemed dangerous to the
physical safety of others.
While this appeal was pending, the Supreme Court issued its
decision in Rahimi, concluding that § 922(g)(8)’s disarmament of those

-- 12 of 20 --

13
subject to domestic violence restraining orders is constitutional. 602
U.S. at 700. In reaching this conclusion, the Court discussed our
nation’s history of regulations, including surety and “going armed”
laws, that “target[ed] individuals who physically threatened others.”
Id. at 693–98. First, surety laws “authorized magistrates to require
individuals suspected of future misbehavior to post a bond.” Id. at
695. As pertinent here, such laws “targeted the misuse of firearms”
and “could be invoked to prevent all forms of violence, including
spousal abuse.” Id. at 695–96. Next, going armed laws “prohibited
‘riding or going armed, with dangerous or unusual weapons, to
terrify the good people of the land’” and “punished these acts with
‘forfeiture of the arms and imprisonment.’” Id. at 697 (alterations
adopted) (quoting 4 W. Blackstone, Commentaries on the Laws of
England 149 (10th ed. 1787)). “Taken together,” the Court explained,
“the surety and going armed laws confirm what common sense
suggests: When an individual poses a clear threat of physical violence
to another, the threatening individual may be disarmed.” Id. at 698.
Like § 922(g)(8), § 922(g)(9) is analogous to the founding era
regime of surety and going armed laws to the extent it disarms people
deemed dangerous to the physical safety of others, including those
who have threatened or committed violence in the form of spousal
abuse. Rahimi therefore provides strong support for concluding that
§ 922(g)(9) is constitutional. Still, given the distinctions between
§ 922(g)(8) and § 922(g)(9), Rahimi is not squarely on all fours with this
case. First, unlike the specific provision of § 922(g)(8) the Court
discussed in Rahimi, disarmament under § 922(g)(9) does not require

-- 13 of 20 --

14
a particularized, forward-looking judicial determination “that the
defendant ‘represents a credible threat to the physical safety’ of
another.” Id. at 699 (quoting 18 U.S.C. § 922(g)(8)(C)(i)). Moreover,
disarmament under § 922(g)(8) is temporally limited to the period
during which the disarmed individual is subject to a restraining
order, whereas § 922(g)(9) includes no such temporal limitation.
Nonetheless, to the extent there remained room for debate after
Rahimi as to the constitutionality of § 922(g)(9), Zherka removed it.
First, we recognized in Zherka that “[m]ost of the historical analogues
that the Supreme Court identified in Rahimi . . . involved firearms
restraints imposed on specific individuals.” 140 F.4th at 85. Still, we
upheld the broad, status-based disarmament of all convicted felons
under § 922(g)(1) after reviewing “laws from seventeenth century
England, the American Colonies, and the early United States” that
“establish that it has long been permissible to regulate firearms
possession through legislative proscription on a class-wide basis,
without a particularized finding that the individuals disarmed pose a
threat to society.” Id. at 78–79 (footnotes omitted). Such “historical
analogues” to § 922(g)(1) included laws disarming “[r]eligious
minorities, political dissenters, Native Americans, and persons of
color . . . based on a perception that persons in those categories were
inherently dangerous or non-law-abiding.” Id. at 85.2 Thus, as we
2 In Zherka, we recognized that many of the disarmament laws in place
around the time of the nation’s founding “are, to say the very least, offensive to
contemporary morals and rooted in prejudiced stereotypes and racial, religious,
or class bigotry,” and that they “would undoubtedly offend other constitutional

-- 14 of 20 --

15
explained in Zherka, our nation’s “tradition of status-based,
categorical restrictions on firearms possession is indicative of an
understanding, before, during, and after the period of the Founding
and continuing to the present day, of a legislative power, consistent
with the Second Amendment, to disarm categories of persons
presumed to be dangerous.” Id. at 90.
The same historical analogues that justify the class-wide
disarmament of felons under § 922(g)(1) also justify the disarmament
of domestic violence misdemeanants under § 922(g)(9). Section
922(g)(9), like § 922(g)(1), prohibits a class of people from possessing
firearms because “Congress perceives them, broadly, as dangerous.”
Id. This perception is well-founded. “[D]omestic abusers with
firearms are dangerous not only to their direct victims, but also to
accompanying loved ones, bystanders, and responding law
enforcement officers.” Gailes, 118 F.4th at 827. In addition,
“[d]omestic violence often escalates in severity over time, and the
presence of a firearm increases the likelihood that it will escalate to
homicide.” Castleman, 572 U.S. at 160 (internal citations omitted). It
is therefore “no surprise . . . that Congress sought to deprive people
with domestic-violence convictions from possessing firearms,” Gailes,
118 F.4th at 827, and Zherka confirms that Congress may do so without
provisions today,” including the First and Fourteenth Amendments. 140 F.4th at
85, 90. Nonetheless, we explained that the laws are “relevant to the Second
Amendment historical analysis that Bruen requires we conduct” because they
“show that at the time of the adoption of the Second Amendment, legislatures had
the authority to use status as a basis for disarmament.” Id. at 85. Thus, we cited
these laws as historical analogues to the class-wide disarmament of felons under
§ 922(g)(1). Id. at 85–91.

-- 15 of 20 --

16
a particularized judicial determination as to the future dangerousness
of the particular domestic violence misdemeanant to be disarmed, 140
F.4th at 78–79.
Zherka further confirms that the lack of an express temporal
limitation on disarmament under § 922(g)(9) does not make it
unconstitutional. In Zherka, we upheld the constitutionality of
§ 922(g)(1), even though it places no temporal limitation on the
disarmament of felons. See id. at 92–93. And, in any event,
disarmament under § 922(g)(9) is “not necessarily permanent.”
Jackson, 138 F.4th at 1254; see Gailes, 118 F.4th at 829; Bernard, 136 F.4th
at 766. Rather, a domestic violence misdemeanant may regain the
right to possess a firearm if his conviction is “expunged or set aside,”
or if he has been pardoned or had his civil rights restored. 18 U.S.C.
§ 921(a)(33)(B)(ii); see Gailes, 118 F.4th at 829 (explaining that “[t]he
purported permanent ban in § 922(g)(9) may not always be so”);
Bernard, 136 F.4th at 766 (same).
Finally, we reject Simmons’ argument that this nation’s
historical tradition of firearm regulation supports the disarmament
only of felons, not misdemeanants like him. In making this argument,
Simmons asserts that misdemeanors, unlike felonies, do not involve
a “serious violation of the law” or a “serious disregard for
fundamental legal norms.” Simmons’ Ltr. Br. at 5–6 (emphasis
removed) (quoting Zherka, 140 F.4th at 91). But § 922(g)(9) does not
disarm all misdemeanants; it disarms those convicted of a
misdemeanor crime of domestic violence. Notwithstanding any
purported distinctions between misdemeanor and felony convictions,

-- 16 of 20 --

17
Congress has assessed domestic violence misdemeanants, as a class,
to be dangerous. And that is not surprising, because such people have
a proven track record of actually committing violent acts, or of
threatening violence, in the past. Thus, § 922(g)(9) fits squarely within
this nation’s history of disarming those considered to be a danger to
the physical safety of others.
For these reasons, we conclude that the statute is constitutional
both facially and as applied to Simmons, who has undisputedly been
convicted of a misdemeanor crime of domestic violence.
Accordingly, we affirm his judgment of conviction.
B. Simmons’ Sentencing Challenges
Having rejected Simmons’ challenge to his conviction, we turn
next to his challenges to the procedural and substantive
reasonableness of his sentence. Simmons completed his prison
sentence on February 12, 2024, and he is presently serving a three-
year term of supervised release. Although a defendant’s release from
prison will not necessarily moot his sentencing challenges if he
remains under supervision at the time of his appeal, such challenges
remain live only if there is “more than a remote and speculative
possibility that the district court could or would impose a reduced
term of supervised release were we to remand the matter.” United
States v. Chestnut, 989 F.3d 222, 225 (2d Cir. 2021) (internal quotation
marks omitted). Because the record in this case does not support any
likelihood that the district court would reduce Simmons’ term of

-- 17 of 20 --

18
supervised release on remand, we conclude that his sentencing
challenges are now moot.
At the outset, Simmons’ sentencing challenges pertain only to
his prison sentence, not his term of supervised release. Indeed,
Simmons has never asked the district court (or us) to reduce his term
of supervision, even though he has been on supervised release for
well over a year and may seek such relief from the district court under
18 U.S.C. § 3583(e) if he so chooses. Given the lack of a challenge to
Simmons’ term of supervision, it would be “quite strange” for us to
conclude that a live controversy exists as to that issue. See Chestnut,
989 F.3d at 225.
Moreover, during and after sentencing, the district court
repeatedly expressed its concern with ensuring that Simmons’
sentence would provide him with the proper medical care for his
mental health issues. The “need for the sentence imposed . . . to
provide the defendant with needed . . . medical care . . . in the most
effective manner” is an appropriate factor for district courts to
consider when imposing a term of supervised release. 18 U.S.C.
§ 3553(a)(2)(D); see 18 U.S.C. § 3583(c). Thus, the district court’s focus
on this factor strongly suggests that it would be disinclined to reduce
Simmons’ term of supervision if we were to conclude that it erred in
fixing the length of his prison sentence.
Because the record contains no indication that the district court
would reduce Simmons’ term of supervised release on remand, his
sentencing challenges no longer present a live controversy. Thus, to

-- 18 of 20 --

19
the extent Simmons challenges the procedural and substantive
reasonableness of his prison sentence, his appeal is dismissed as
moot.
C. The Government’s Sentencing Challenge
Although the Government initially argued that the district
court erred by failing to apply U.S.S.G. § 2K2.1(a)(4)(A) when
determining Simmons’ base offense level, it now concedes that our
decision in Minter forecloses that argument. We agree. Section
2K2.1(a)(4)(A) provides that a defendant’s base offense level is 20 if
he “committed any part of the instant offense subsequent to
sustaining one felony conviction of . . . a controlled substance
offense.” A state drug conviction will qualify as a “controlled
substance offense” under § 2K2.1(a) only “if the state conviction
aligns with, or is a categorical match with, federal law’s definition of
a controlled substance.” United States v. Townsend, 897 F.3d 66, 72 (2d
Cir. 2018) (internal quotation marks omitted). Simmons was
convicted in 2013 of violating N.Y. Penal Law § 220.16(1), which
criminalizes, among other things, “knowingly and unlawfully
possess[ing] . . . a narcotic drug with intent to sell it.” “Narcotic drug”
is defined under New York law to include cocaine, see N.Y. Penal Law
§ 220.00(7); N.Y. Pub. Health Law § 3306, and we held in Minter that
“New York’s definition of cocaine is categorically broader than the
federal definition,” 80 F.4th at 411. Thus, as the Government
concedes, Minter forecloses the argument it raised in its cross-appeal.

-- 19 of 20 --

20
III. Conclusion
Recent decisions of the Supreme Court, this Court, and other
Circuits illuminate a commonsense principle firmly rooted in this
nation’s history of firearm regulation: A person deemed to be a
danger to the physical safety of others may be disarmed. Our decision
today confirms that this principle extends to the disarmament of
domestic violence misdemeanants under 18 U.S.C. § 922(g)(9).
Because Congress’s decision to disarm domestic violence
misdemeanants aligns with our nation’s history of disarming those
deemed dangerous to the physical safety of others, we conclude that
§ 922(g)(9) is constitutional.
In sum, we hold as follows:
(1) 18 U.S.C. § 922(g)(9) is constitutional, both facially and as
applied to Simmons;
(2) Simmons’ challenges to his prison sentence are moot
because he has completed his prison term and because we
discern no reason to conclude that the district court would
reduce his term of supervised release on remand; and
(3) Simmons’ previous conviction for violating N.Y. Penal Law
§ 220.16(1) is not a “controlled substance offense” under
U.S.S.G. § 2K2.1(a)(4)(A).
For these reasons, we DISMISS Simmons’ appeal in part as
moot and otherwise AFFIRM the district court’s judgment of
conviction and sentence.

-- 20 of 20 --