United States of America v. Terrence Wayne Vanochten

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0215p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRENCE WAYNE VANOCHTEN,
Defendant-Appellant.
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No. 23-1901
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:23-cr-00029-1—Paul Lewis Maloney, District Judge.
Argued: May 8, 2025
Decided and Filed: August 8, 2025
Before: CLAY, THAPAR, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Pedro Celis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,
Michigan, for Appellant. John J. Schoettle, UNITED STATES ATTORNEY’S OFFICE, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Sean R. Tilton, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. John J. Schoettle, UNITED
STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
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READLER, Circuit Judge. Section 922(g)(3) of Title 18 prohibits unlawful drug users
from possessing firearms. 18 U.S.C. § 922(g)(3). Echoing the sentiment that drug users in
possession of firearms raise heightened safety concerns, the Sentencing Guidelines instruct
>

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district courts to increase a defendant’s base offense level in firearm possession cases if he is a
“person described” in § 922(g)(3)—in other words, if he is an unlawful user of controlled
substances and possesses firearms. U.S. Sent’g Guidelines Manual § 2K2.1(a)(4)(B) (U.S.
Sent’g Comm’n 2024) (hereinafter Guidelines); id. cmt. n.3.
In this case, Terrence Wayne VanOchten pleaded guilty to possessing three unregistered
firearms (pipe bombs). Over VanOchten’s opposition, the district court increased his base
offense level on the grounds that he is a “person described” in § 922(g)(3). Id. cmt. n.3. That
leaves us to resolve the constitutional question at the heart of VanOchten’s objection: whether
§ 922(g)(3) may be enforced against him, consistent with the Second Amendment. We agree
with the government that it can, and thus affirm the district court’s sentence.
I.
Sheriff’s deputies in Kalkaska County (Michigan) received word that a man was shooting
a rifle in his backyard. Arriving at the suspect’s home, deputies discovered Terrence VanOchten
standing in his garage, holding a Glock pistol. VanOchten told the deputies what had happened:
using a rifle, he fired on some birds in his backyard.
In the moments that followed, the deputies learned several things. One, VanOchten
owned (at least) two Armalite rifles. Two, he had been shooting one of them in the direction of a
propane tank in his backyard, aiming, he claimed, for a flock of birds. Three, VanOchten was
drunk. He smelled strongly of alcohol, so the deputies asked him to take a field sobriety test,
which he failed; several hours later, after the deputies got a warrant for his blood, VanOchten
had a blood alcohol level of .157. Four, VanOchten was high on marijuana. A “marijuana pipe
still warm to the touch” rested “on a work bench.” PSR, R.38, PageID 197. VanOchten later
told the deputies he used marijuana regularly, “smok[ing] a bowl” “every three nights.” Id. at
199.
Taken together, these facts painted a fair picture of what had happened before the
deputies arrived on scene—VanOchten was “shooting” a rifle “in the direction of a propane tank
in a residential neighborhood” while “drunk and high.” Sent’g Hr’g Tr., R.48, PageID 319. The
deputies arrested VanOchten. An investigation ensued, with the deputies executing two search

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warrants for VanOchten’s home. During the searches, they found several semiautomatic
firearms, three pistols, three pipe bombs, and a large cache of ammunition.
The deputies contacted the federal Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) about the pipe bombs, which, as VanOchten explained, he built himself. As the ATF
would discover, each one had “black powder” and “a hole drilled in one of the end caps for
placement of a fuse.” PSR, R.38, PageID 198. When the ATF tested the pipe bombs, their
“powder and fuses rapidly burned as designed.” Plea Agreement, R.32, PageID 160. That meant
they worked: “if detonated, the devices could kill, maim, or injure people, and destroy property,
by creating a shock wave and by throwing fragmented parts of metal pipe outward as
‘shrapnel.’” Id.
VanOchten’s legal problems mounted. He earned a conviction under state law for
possessing a firearm while intoxicated and received six months of probation. Federal charges
would prove more problematic. A grand jury charged VanOchten with possessing three
unregistered firearms (pipe bombs), in violation of 26 U.S.C. §§ 5861(d), 5841, and 5871. (The
term “firearm” includes “a destructive device,” which describes the pipe bombs VanOchten
possessed. Id. § 5845(a)(8).) He pleaded guilty to the charge.
In its pre-sentence report, the probation office recommended a base offense level of 20
under § 2K2.1(a)(4)(B) of the Sentencing Guidelines. That provision sets a base offense level of
20 if the defendant’s “offense involved” a “firearm that is described in 26 U.S.C. § 5845(a)” and
the defendant “was a prohibited person at the time” he “committed the instant offense.”
Guidelines, supra, § 2K2.1(a)(4)(B). Beginning with the threshold inquiry, whether
VanOchten’s “offense”—possessing destructive devices—“involved” a firearm “described in 26
U.S.C. § 5845(a),” the probation office concluded that it did because § 5845(a) defines the word
“firearm” to include “a destructive device.” 26 U.S.C. § 5845(a)(8).
That left a second question: Was VanOchten “a prohibited person at the time” he
“committed the instant offense”? The probation office concluded that he was. By way of
background, although § 2K2.1(a)(4)(B) directs district courts to increase a defendant’s base
offense level in firearm possession cases based in part on whether the defendant is a “prohibited

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person,” the guideline itself leaves this phrase undefined. Instead, the Sentencing Commission
defined “prohibited person” in commentary accompanying § 2K2.1(a)(4)(B). In particular,
Application Note 3 defines a “prohibited person” as someone “described in 18 U.S.C. § 922(g).”
Guidelines, supra, § 2K2.1(a)(4)(B) cmt. n.3. VanOchten was a “prohibited person,” the
probation office found, because he fell within the heartland of a person “described in . . . §
922(g)”—specifically § 922(g)(3). Section 922(g)(3) prohibits someone “who is an unlawful
user of” “any controlled substance” from “possess[ing]” a “firearm” “in or affecting commerce.”
18 U.S.C. § 922(g)(3). Because VanOchten regularly and repeatedly used marijuana (an
unlawful controlled substance under federal law), and because he possessed pistols and rifles
(firearms), he was a person described in § 922(g)(3), and thus a “prohibited person” within the
meaning of § 2K2.1(a)(4)(B). United States v. Burchard, 580 F.3d 341, 352 (6th Cir. 2009). So,
beginning with a base offense level of 20, and adding in other adjustments, VanOchten faced a
total offense level of 23, which, when combined with his criminal history category (I), resulted in
a sentencing range of 46 to 57 months.
VanOchten objected to the pre-sentence report on the grounds that § 922(g)(3) could not
be applied to him consistent with the Second Amendment. To his mind, the Second
Amendment, historically understood, prevents Congress from disarming marijuana users. Not
so, responded the government, at least as to marijuana users who present a risk of future harm to
others if armed. And that label, the government added, fairly described VanOchten—a
marijuana user, who “was drunk, high, and shooting at birds” “in the direction of a propane tank,
in a residential neighborhood.” Gov’t’s Sent’g Mem., R.41, PageID 273. In other words, the
government explained, VanOchten was “high and drunk at the time he was using a gun in a very
unsafe way.” Sent’g Hr’g Tr., R.48, PageID 315–16. Enforcing § 922(g)(3) against VanOchten,
the government concluded, would be consistent with the historical principle of “taking guns
away from dangerous people.” Id. at 319.
At sentencing, the district court sided with the government. Section 922(g)(3), the court
explained, could be applied to VanOchten consistent with the Second Amendment because he
“represented a threat to the public.” Id. at 371. Adopting the pre-sentence report’s sentencing

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recommendations in full, the court sentenced VanOchten to 52 months in prison, which fell
within his recommended range of 46 to 57 months. VanOchten appealed.
II.
VanOchten argues that the district court improperly calculated his base offense level.
The court, remember, gave him a base offense level of 20 after concluding that he was a “person
described” in § 922(g)(3). Guidelines, supra, § 2K2.1(a)(4)(B) cmt. n.3. VanOchten does not
dispute that he is such a person: He regularly uses marijuana, an illegal substance under federal
law, and possesses several guns. Burchard, 580 F.3d at 352. VanOchten, instead, renews the
same objection he made in the district court: Section 922(g)(3) cannot be applied to him
consistent with the Second Amendment. This argument amounts to a procedural reasonableness
challenge to his sentence. We ordinarily review this type of challenge for an abuse of discretion.
Under that standard, we review the district court’s factual findings for clear error and its legal
conclusions with fresh eyes. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). All of
this prompts the only question in this appeal: Is § 922(g)(3) constitutional as applied to
VanOchten?
When considering an as-applied challenge to a firearm regulation, we make two
inquiries: One, does the Second Amendment’s plain text cover the claimant’s proposed course
of conduct? If so, two, can the government, consistent with the principles that underpin our
nation’s regulatory tradition, justify applying the regulation to him? N.Y. State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022); United States v. Rahimi, 144 S. Ct. 1889,
1897–98 (2024).
Our recent decision in United States v. Williams, 113 F.4th 637 (6th Cir. 2024), all but
resolves these questions in favor of the government in this case. Williams held that 18 U.S.C.
§ 922(g)(1), a statutory companion to § 922(g)(3), one that prohibits felons from possessing
firearms, is constitutional as applied to “dangerous individuals.” Id. at 662. In keeping with
Bruen’s two-step inquiry, Williams first considered whether the Second Amendment covered the
claimant’s (the felon’s) proposed course of conduct. It did. The felon, we explained, was a
member of “the people” protected by the Second Amendment, and § 922(g)(1), by prohibiting

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him from possessing firearms, burdened his right to keep arms. Id. at 649–50. Williams thus
turned to the second inquiry, whether the government had shown that § 922(g)(1) could be
applied consistent with the historical contours of the Second Amendment. It had. We agreed
that, based upon historical analogues, Congress “may use class-based legislation to disarm
people it believes are dangerous, so long as members of that class have an opportunity to show
they aren’t.” Id. at 661–62. And Congress had in fact done so in § 922(g)(1), disarming felons
as a group because it judged them to be dangerous. Id. at 662. Thus, we concluded, § 922(g)(1)
is constitutional as it applies to “dangerous individuals.” Id.
These principles suffice to resolve this case. Congress used class-based legislation to
disarm drug users through § 922(g)(3) because it judged them to be dangerous. Under Williams,
that is permissible—“so long as each” drug user in the disarmed group “has an opportunity to
make an individualized showing that he himself is not actually dangerous.” Id. at 663.
Accordingly, § 922(g)(3)—like § 922(g)(1)—can be constitutionally applied to “dangerous
individuals.” Id. at 662. And here, for reasons we will explain, VanOchten is dangerous.
A. We begin with Bruen’s first inquiry: whether the Second Amendment covers the
claimant’s proposed course of conduct. Bruen, 142 S. Ct. at 2126. Relevant here is the
constitutional guarantee that “the right of the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. With this command in mind, we ask whether a member of
“the people” is attempting to “keep [or] bear” an “Arm[]” and whether a government regulation
“infringe[s]” on his “right” to do so. Id.; see also Bruen, 142 S. Ct. at 2134; Williams, 113 F.4th
at 648–50.
VanOchten easily satisfies Bruen’s first step. To begin, as an American citizen,
VanOchten is one of “the people” who enjoys Second Amendment rights. District of Columbia
v. Heller, 554 U.S. 570, 580–81 (2008). Heller interpreted the phrase “the people” in the Second
Amendment exactly that way—referring to (at least) “all Americans.” Id. at 581. In that respect,
the phrase “the people,” drafted at a high level of generality, draws no “distinction” on its face
among citizens. Williams, 113 F.4th at 649. So VanOchten remains a member of “the people”
protected by the Second Amendment, despite his marijuana use. Id. We are aware of no
historical evidence suggesting that Americans who use illegal drugs are categorically excluded

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from “the people” to whom the Second Amendment refers. That conclusion, it bears adding, is
consistent with our precedent. American felons, for example, remain members of “the people,”
despite their felony convictions. Id. So too are Americans convicted of state-law domestic-
violence misdemeanors. United States v. Gailes, 118 F.4th 822, 826 (6th Cir. 2024).
That leads to the second half of Bruen’s threshold inquiry: does the Second Amendment
cover VanOchten’s proposed course of conduct? Bruen, 142 S. Ct. at 2126. In other words,
does § 922(g)(3) “infringe” on his “right” to “keep and bear Arms”? Again, yes. VanOchten
invokes the privilege (right) to possess (keep) firearms (Arms) in his home. That tracks the core
Second Amendment guarantee as understood by the Supreme Court. Heller, 554 U.S. at 635.
And § 922(g)(3) infringes on that right because it prohibits VanOchten from possessing firearms.
Williams, 113 F.4th at 649–50 (explaining that § 922(g)(1) “burdens” a felon’s “right” to
“possess a gun” and thus infringed on his proposed course of conduct).
B. Because the Second Amendment’s plain text covers VanOchten’s proposed course of
conduct, we turn to Bruen’s second inquiry: whether enforcing § 922(g)(3) against VanOchten
is consistent with our nation’s historical tradition of firearms regulation. Bruen, 142 S. Ct.
2129–30; Rahimi, 144 S. Ct. at 1898. To demonstrate as much, the government must reason by
analogy and establish that § 922(g)(3) is “consistent with the principles that underpin our
regulatory tradition.” Rahimi, 144 S. Ct. at 1898.
Taking up that cause, the government contends that the historical principle of disarming
dangerous people justifies applying § 922(g)(3) to VanOchten. So much so, the government
adds, that this principle justifies § 922(g)(3) in all applications. According to the government,
Congress may, consistent with the Second Amendment’s historical scope, categorically disarm
classes of individuals it judges to present a special risk of danger to the public. The government
advances two basic historical arguments in support of this legislative power. First, it points out
that founding-era legislatures disarmed classes of individuals they judged to present a risk of
danger to the public—specifically, loyalists and Catholics. Second, it says that founding-era
legislatures authorized government officials (usually, judicial officers) to disarm individuals,
whom the officials found had engaged in dangerous behavior. From this history, the government
concludes, Congress may categorically disarm classes of people it believes are dangerous. In the

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government’s words, because “Congress” can “disarm unlawful drug users as a group,” our
“Court’s consideration of VanOchten’s challenge” “should end.” Appellee Br. 21.
This argument has a major flaw: Williams rejected its premise. There, we analyzed
extensively the power of Congress to disarm entire groups of people based on its judgment that
they were dangerous. We held that Congress could not categorically disarm entire classes of
people, like felons, simply because it judged them to present a threat to public safety. Williams,
113 F.4th at 660–62. Our historical analysis extracted the following rule: “when the legislature
disarms on a class-wide basis, individuals must have a reasonable opportunity to prove that they
don’t fit the class-wide generalization.” Id. at 661. In other words, “governments may use class-
based legislation to disarm people it believes are dangerous, so long as members of that class
have an opportunity to show they aren’t.” Id. at 661–62. For VanOchten, then, the government
cannot strip him of his right to bear arms simply because he falls within a class of people
Congress has deemed dangerous. Instead, he must have the opportunity to demonstrate he is not
dangerous.
As a fallback, the government contends that, at the very least, Congress may, consistent
with the Second Amendment’s historical scope, disarm an illegal drug user whose behavior
shows that he is dangerous. This time, we agree.
Back to Williams, where we examined the government’s power to disarm dangerous
people. At stake there was § 922(g)(1)—the felon-in-possession provision. We held that
§ 922(g)(1) can be applied in many cases consistent with past limitations on the ability of
dangerous people to possess firearms. At various points in our historical pedigree, including at
the founding and even decades earlier, our government (and before that, the British) enacted laws
limiting the ability of people deemed dangerous by the government to keep arms—either
individually or as a class. For example, the Militia Act of 1662 authorized British officers to
disarm persons determined to be “dangerous to the Peace of the Kingdom.” Id. at 651 (quoting
14 Car. 2, c. 3, § 13 (1662)). England and American governments also had unwritten and written
“going-armed” offenses, which disarmed anyone who carried his firearms in a manner that
caused terror to the people. Id. at 650. And some founding-era legislatures disarmed entire
groups of people, like Catholics, unless they swore an oath of loyalty to the government. Id. at

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651. From this history, we derived the following rule: “legislatures may disarm groups of
people, like felons, whom the legislature believes to be dangerous—so long as each member of
that disarmed group has an opportunity to make an individualized showing that he himself is not
actually dangerous.” Id. at 663.
It follows that § 922(g)(3) can be applied to dangerous drug users consistent with the
Second Amendment. As Williams makes clear, Congress may use class-based legislation to
designate “whole classes” of individuals “as presumptively dangerous.” Id. at 657. That is
precisely what Congress did in enacting § 922(g)(3). Through that provision, “Congress
classified” drug users as “potentially” “dangerous.” Barrett v. United States, 423 U.S. 212, 218
(1976). Section 922(g)(3), in other words, reflects a congressional attempt to “keep guns out of
the hands of presumptively risky people.” United States v. Yancey, 621 F.3d 681, 683 (7th Cir.
2010) (per curiam). That said, when Congress disarms “groups of people” it “believes to be
dangerous,” (here, illegal drug users) it remains the case that “each member of that disarmed
group” must have the “opportunity to make an individualized showing that he himself is not
actually dangerous.” Williams, 113 F.4th at 663.
In a series of cases, both the Fifth and Eighth Circuits have reached a similar conclusion.
Start with the Eighth Circuit and its decision in United States v. Veasley, 98 F.4th 906 (8th Cir.
2024). There, the Eighth Circuit rejected a facial challenge to § 922(g)(3). As the appeals court
explained, § 922(g)(3) could be applied to dangerous drug users consistent with the principles
undergirding founding-era going-armed offenses. Going-armed laws disarmed individuals who
took “up arms to terrify the people.” Id. at 916. Those laws, in other words, disarmed people
who had misused their firearms “in a way that terrorized others.” Id. at 917. And § 922(g)(3), as
applied to dangerous people, is similar to the going-armed laws, the Eighth Circuit added, in both
“why” and “how” it burdens the right to keep arms. It shares a comparable “why” with going-
armed offenses because it prevents individuals who pose a threat to others from having firearms.
Id. And it shares a comparable “how”—temporary disarmament. Id. For those reasons, the
Eighth Circuit concluded, § 922(g)(3) can be applied to drug users in possession of firearms who
had engaged in “dangerous behavior” or “dangerous conduct.” Id. To be sure, the appeals court
cautioned, not all drug users could be disarmed under § 922(g)(3). “Consider the 80-year-old

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grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away
for her own safety.” Id. at 917–18. She will likely not “pose a danger or induce terror in
others”—but that is the stuff of “as-applied challenge[s].” Id. at 918.
In United States v. Cooper, 127 F.4th 1092 (8th Cir. 2025), the Eighth Circuit later
clarified how it believes courts should resolve as-applied challenges to § 922(g)(3). Cooper
began by reiterating that founding-era going-armed offenses justified applying § 922(g)(3) to
some drug users. Which ones? Two kinds. First, following the Supreme Court’s direction in
Rahimi—which was decided after Veasley—§ 922(g)(3) could be applied to drug users who
present a “credible threat” to others. Id. at 1096 (quoting Rahimi, 144 S. Ct. at 1889). Second,
in light of Veasley, § 922(g)(3) could be applied to drug users who had “engage[d] in ‘terrifying
conduct.’” Id. (quoting Veasley, 98 F.4th at 917). All of this, the Eighth Circuit explained, helps
“frame” the “relevant questions” for resolving “as-applied challenge[s]” to § 922(g)(3): Does
the defendant “pose a credible threat to the physical safety of others with a firearm,” or did he
“induce terror”? Id. at 1096 (quotations omitted). If the answer to either question is “yes,” the
government may, consistent with the Second Amendment, prosecute a drug user in possession of
firearms under § 922(g)(3). Id.
Veasley and Cooper, it bears emphasizing, are consistent with Williams’s core holding:
Congress can use class-based legislation to disarm entire groups of people (here, drug users), so
long as members of the disarmed groups have the chance to prove that they are not actually
dangerous.
The Fifth Circuit, beginning with United States v. Connelly, 117 F.4th 269 (5th Cir.
2024), hewed to this general path, albeit with some explanation required. There, the Fifth Circuit
held that the government could not prosecute a non-violent marijuana user under § 922(g)(3)
consistent with the Second Amendment. Id. at 283. The appeals court began by explaining that
the historical principle of disarming dangerous people does not justify stripping all marijuana
users of their right to keep and bear arms. Id. at 278–79. That is consistent with Williams, where
we held that Congress could not categorically disarm entire groups of people without giving
them a chance to show they do not fit within the class-wide generalization. But “[a]s applied,”
the Fifth Circuit added, “the government has not shown how [the defendant’s] marijuana use

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predisposes her to armed conflict or that she has a history of drug-related violence.” Id. at 279.
This as-applied holding left open a question in the Fifth Circuit: Can a drug user only be
disarmed under § 922(g)(3)—based on the dangerousness principle—if his drug use predisposes
him to dangerous behavior?
A later Fifth Circuit decision, United States v. Daniels, 124 F.4th 967 (5th Cir. 2025),
suggests the answer is “no.” Again, Connelly indicated that a drug user could be disarmed under
§ 922(g)(3) based on the dangerousness principle only if his drug use predisposed him to armed
violence. Connelly, 117 F.4th at 279. Daniels, however, made clear that Connelly “does not
foreclose the government from attempting to reformulate its dangerousness argument in the
context of different as-applied challenges moving forward.” Daniels, 124 F.4th at 977. And, the
Fifth Circuit added, the analysis for as-applied challenges could vary “depending” on the
“defendant’s history and conduct.” Id. (emphasis added). Taking all of this together, drug users
could be disarmed under § 922(g)(3) if they were dangerous because of their particular
characteristics—gleaned from their criminal history and other relevant information. Id. at n.11.
In sum, a straightforward application of Williams demonstrates that § 922(g)(3) is
constitutional as applied to dangerous individuals.
C. That tees up the ultimate question in this case: Is VanOchten himself dangerous? At
the outset, it is worth reflecting on what we mean by “dangerous.” As Williams explained, the
relevant principle pulled from founding-era history is that government may limit the right to keep
arms of persons who presently pose a clear risk of future harm or violence toward others if they
were to possess a gun. Williams, 113 F.4th at 650–657; Rahimi, 144 S. Ct. at 1901–02; see also
Gailes, 118 F.4th at 828 (explaining that the “historical sources cited in Rahimi and Williams
establish the constitutionality of modern firearms regulations targeting those ‘who pose[] a clear
threat of physical violence to another’”) (alteration in original) (quotation omitted). Section
922(g)(3) can be applied consistent with these principles: The government can disarm an illegal
drug user who presently poses a clear risk to others if armed. In determining whether a person
poses a clear risk of future harm, we can look at his “criminal record.” Williams, 113 F.4th at
659. Why? Because the specific details of a person’s past crimes help us determine whether he
poses a clear threat to the public today. Id. at 659–60. A few general questions will help frame

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the inquiry. Does the person have a history of violent conduct—murder, assault, robbery, for
example? Id. at 658. Likewise, does he have a history of committing crimes that inherently pose
a significant threat of danger to others—drug trafficking or burglary, for example? Id. at 659.
Determining whether a drug user is dangerous and thus can be disarmed under
§ 922(g)(3) will be easy in some cases and hard in others. The “80-year-old grandmother who
uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own
safety” is not dangerous. Veasley, 98 F.4th at 917–18. The 31-year-old member of a criminal
gang who uses methamphetamine and has recently committed violent assaults and armed
robbery, by contrast, is dangerous. Williams, 113 F.4th 658. We trust that courts “like the
officials of old” will focus on “each individual’s specific characteristics” and make good faith
judgments accordingly. Id. at 657.
This case falls on the easy side of the line. In assessing whether VanOchten is dangerous,
we need only examine his “criminal record.” Id. at 659. Remember, he earned a state law
conviction for his conduct on the day he was arrested by Michigan deputies. On that day, he
“was shooting” a rifle “in the direction of a propane tank in a residential neighborhood” while
“drunk and high.” Sent’g Hr’g Tr., R.48, PageID 319. As this event shows, he misused his gun
in a way that could “have caused a major explosion,” injuring himself or harming the person or
property of another. Id. at 348. His misconduct posed “a significant threat of danger” to himself
and others. Williams, 113 F.4th at 659. From this incident alone, VanOchten has
demonstrated—as the district court found—that he presents a clear “threat to the public.” Sent’g
Hr’g Tr., R.48, PageID 371. Because the government can apply § 922(g)(3) to VanOchten
consistent with the Second Amendment, the district court properly gave him a base offense level
of 20 under § 2K2.1(a)(4)(B) of the Sentencing Guidelines. VanOchten’s sentence has no
procedural defect.
D. VanOchten offers two arguments in response.
First, VanOchten argues that Congress has no power to categorically disarm marijuana
users. But under Williams, Congress may disarm “groups of people” it “believes to be
dangerous” if “each member of that disarmed group” has the “opportunity to make an

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individualized showing that he himself is not actually dangerous.” Williams, 113 F.4th at 663.
Here, Congress has disarmed illegal drug users; and, as explained, VanOchten is dangerous.
Second, VanOchten asserts that § 922(g)(3) may be applied to dangerous drug users only
if they are dangerous because of their drug use. He begins by conceding that § 922(g)(3) is
constitutional as applied to dangerous drug users. Appellant Br. 21. He then assumes “for the
sake of argument” that he is dangerous. Id. But, he says, he is not dangerous “because of his
occasional use of marijuana.” Id. In other words, his danger is not tied, or related, to his drug
use. For example, nothing “in the record,” VanOchten presses, demonstrates that he “consumed
marijuana before the shooting incident.” Id. He claims, rather, that he smoked marijuana after
the shooting incident, but before the deputies arrived. It follows, he says, that the record does
not support that his marijuana use “predisposes” him to act in dangerous ways. Id. (quotation
omitted).
This argument has a few problems. To begin, the historical principle of disarming
dangerous people, a foundational aspect of the Second Amendment, permits the government to
disarm those found dangerous by the government—either individually or as a class. Williams,
113 F.4th at 650–57. When the government uses class-wide legislation to disarm entire groups
of people judged to be dangerous, members of those groups must be allowed to show that they
are not actually dangerous. Id. at 657. This historical principle derived from Williams does not
require the government to tie someone’s danger to his membership in a disarmed group. Instead,
when assessing an individual’s dangerousness, courts focus on the defendant’s “specific
characteristics” gleaned from his criminal record and/or other judicially noticeable information.
Id. And here, VanOchten’s criminal record—in particular, his misconduct leading up to his
arrest—shows that he presents a clear threat to the public if armed.
In arguing that a dangerous drug user can be disarmed under § 922(g)(3) only if he is
dangerous because of his drug use, VanOchten draws significance from a single sentence in the
Fifth Circuit’s opinion in Connelly. There, remember, the Fifth Circuit said that the government
could not invoke the dangerousness principle to enforce § 922(g)(3) against a non-violent drug
user because “the government ha[d] not shown how [the defendant’s] marijuana use predisposes
her to armed conflict or that she has a history of drug-related violence.” Connelly, 117 F.4th at

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279. To the extent Connelly suggests that § 922(g)(3) can be applied to someone only if his drug
use predisposes him to violence, that appears to be incorrect. As explained, the government can
disarm someone who—based on his characteristics—is dangerous. E.g., Williams, 113 F.4th at
662. The Fifth Circuit, it bears adding, has clarified Connelly’s statement about predisposition.
In Daniels, remember, the appeals court explained that Connelly did not prevent the government
from arguing in future cases that a defendant is dangerous for purposes of § 922(g)(3) based on
his criminal “history and conduct.” Daniels, 124 F.4th at 977 (emphasis added). And here, as
described, VanOchten is dangerous because of his misconduct leading up to his arrest at his
home.
Even if VanOchten were correct that § 922(g)(3) can be applied based on the
dangerousness principle only when the drug user is dangerous because of his drug use,
VanOchten still has not demonstrated that he is not dangerous. Williams, 113 F.4th at 657. His
argument proceeds on the core assumption that he was not impaired at the time he opened fire on
birds in his backyard. But the district court found that he was high when he misused his rifle,
meaning his marijuana use is tied to his dangerous behavior. At sentencing, the district court
held that § 922(g)(3) could be applied to VanOchten “for the reasons stated in the government’s
papers.” Sent’g Hr’g Tr., R.48, PageID 348. And the government’s papers clearly took the
position that VanOchten was high at the time of the shooting. See Gov’t’s Sent’g Mem., R.41,
PageID 267 (arguing that VanOchten was “high at the time of the offense”); id. at 273 (arguing
that VanOchten was “high at the time of the offense”); id. (arguing that VanOchten was “drunk,
high, and shooting at birds” “in the direction of a propane tank, in a residential neighborhood”).
So, in adopting the government’s position, the district court necessarily found that VanOchten
had smoked marijuana by the time of the shooting. As that factual finding is “plausible,” it is not
clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985). In short,
VanOchten’s argument rests on a factual premise that the district court rejected.
* * * * *
In affirming the district court, it bears emphasizing what we have—and have not—
decided. Under Williams, § 922(g)(3) is constitutional in its application to dangerous
individuals. VanOchten is dangerous because he has demonstrated that he poses a clear risk of

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No. 23-1901 United States v. VanOchten Page 15
future harm to others if armed—he fired a rifle in a residential neighborhood in the direction of a
propane tank while drunk and high. So the district court properly enforced § 922(g)(3) against
him. The government, we note, also argues that § 922(g)(3)’s applicability can be justified in
some circumstances consistent with historical laws regulating the possession of firearms by
drunks and mentally ill people. Other Circuits have addressed these arguments. The Fifth
Circuit, for example, has suggested that § 922(g)(3) can be applied to drug users who carry
firearms in public while high. Daniels, 124 F.4th at 976. The Third Circuit, for its part, has
recently held that, based on founding-era laws incapacitating drunks and mentally ill people, §
922(g)(3) can be applied to those “who pose a special danger of misusing firearms because they
frequently use drugs.” United States v. Harris, --- F.4th ----, 2025 WL 1922605, at *1, *7 (3d
Cir. July 14, 2025). In the Third Circuit’s view, the historical record justifies applying §
922(g)(3) to drug users who have not actually harmed anyone in the past; instead, § 922(g)(3)
can be applied to a drug user based on the “nature” of his drug use and “the risk that it will
impair his ability to handle guns safely.” Id. at *7. We leave all of these arguments for another
day.
With that understanding, we affirm.

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