Appellate Case: 23-1407 Document: 42-1 Date Filed: 04/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1407 (D.C. No. 1:22-CR-00104-WJM-1) BRANDON MICHAEL ELWELL, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, BALDOCK, and EID, Circuit Judges. _________________________________

The district court sentenced Brandon Michael Elwell to 52 months’

imprisonment after he pleaded guilty to one count of possession of firearms and

ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Mr. Elwell appeals.

He raises two arguments, which he states are for preservation purposes only.1

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 An unconditional guilty plea generally precludes a defendant from appealing all but a limited set of issues. See United States v. DeVaughn, 694 F.3d 1141, 1145-46 (10th Cir. 2012). But the government can waive or forfeit that waiver by Appellate Case: 23-1407 Document: 42-1 Date Filed: 04/11/2025 Page: 2

First, Mr. Elwell contends that an inchoate “attempt” crime should not count

as a crime of violence under United States Sentencing Guidelines Manual § 4B1.2(a)

(U.S. Sent’g Comm’n 2021). He contends that the court should use the framework

set forth in Kisor v. Wilkie, 588 U.S. 558 (2019), to consider whether the commentary

to § 4B1.2 impermissibly expands the text of the § 4B1.2(a) to cover “attempt”

crimes. This court, however, already has rejected using the Kisor framework to

determine the deference to be given to Guideline commentary. See United States v.

Maloid, 71 F.4th 795, 798, 807-08 (10th Cir. 2023), cert. denied, 144 S. Ct. 1035

(2024). Recognizing that one panel of this court cannot overrule a prior decision of

another panel, see United States v. Harbin, 56 F.4th 843, 846 n.2 (10th Cir. 2022),

Mr. Elwell “acknowledges, as he must, that Maloid forecloses de novo review of that

issue before this panel,” Aplt. Opening Br. at 5.

Second, Mr. Elwell argues that § 922(g)(1) is unconstitutional, both facially

and as applied to him, because it infringes the Second Amendment right to keep and

bear arms. He did not make these arguments in the district court, so we review only

for plain error. United States v. Jimenez, 61 F.4th 1281, 1285 (10th Cir. 2023). “To

demonstrate plain error, a litigant must show: (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotation marks omitted).

failing to argue it. See id. at 1158. Here, the government chose not to file a response brief, and therefore we need not consider waiver by virtue of the guilty plea. 2 Appellate Case: 23-1407 Document: 42-1 Date Filed: 04/11/2025 Page: 3

In United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), this court

determined that § 922(g)(1) does not violate the Second Amendment. We very

recently concluded that McCane remains binding. See Vincent v. Bondi, 127 F.4th 1263, 1265-66 (10th Cir. 2025). In light of Vincent, we cannot conclude that the

district court plainly erred by applying § 922(g)(1).

We affirm the district court’s judgment.

Entered for the Court

Bobby R. Baldock Circuit Judge

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