Appellate Case: 23-8032      Document: 111-1    Date Filed: 04/15/2025    Page: 1
                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        April 15, 2025

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 23-8032

 JORGE ENRIQUE BARRAGAN-
 GUTIERREZ,

       Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                             for the District of Wyoming
              (D.C. Nos. 2:23-CV-00034-NDF & 2:14-CR-00232-NDF-3)
                       _________________________________

Adam Mueller (Meredith O’Harris with him on the briefs), Haddon, Morgan and
Foreman, P.C., Denver, Colorado, for Defendant-Appellant.

William A. Glaser, Attorney, Appellate Section, Criminal Division, United States
Department of Justice, Washington, D.C. (Nicole M. Argentieri, Acting Assistant
Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, United States Department of Justice, Washington, D.C., with
him on the briefs, and Nicholas Vassallo United States Attorney, and David A. Kubichek,
Assistant United States Attorney, District of Wyoming, with him on the briefs) for
Plaintiff-Appellee.
                        _________________________________

Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges.
                 _________________________________

TYMKOVICH, Circuit Judge.
                  _________________________________
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       Federal law makes it a crime to possess a firearm in furtherance of drug

trafficking. 

(c)(1)(A). Defendant Jorge Enrique Barragan-Gutierrez was

indicted for that crime after a firearm was found in his home along with incriminating

amounts of drugs. He also admitted to receiving a different gun as payment in a drug

transaction. He pleaded guilty and was sentenced in 2015 to 211 months of incarceration.

       He now challenges his sentence through this habeas petition. 

(f)(3). He argues that the Supreme Court’s recent decisions in New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 

 (2022), and United States v. Rahimi, 

 (2024), established that the government cannot criminalize his possession of a

firearm under the Constitution’s Second Amendment, guaranteeing the right to keep and

bear arms. Accordingly, he says his sentence is unconstitutional and should be vacated.

       We disagree. While the Supreme Court has clarified the legal framework for

analyzing restrictions on the use and possession of firearms in recent cases, none of those

cases has been extended to relieve felons convicted before those decisions. Since those

cases do not apply to Mr. Barragan-Gutierrez’s circumstances, we AFFIRM the denial of

his petition.

                                   I.   Background

       A.       Underlying Facts

       The facts here are undisputed. Mr. Barragan-Gutierrez is a Wyoming drug dealer

who, from 2011 to 2014, distributed methamphetamine, marijuana, and heroin.

Investigators traced the drugs back to Mr. Barragan-Gutierrez and searched his house,



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which revealed drugs, drug distribution paraphernalia, and a machine gun with

ammunition.

       During the investigation of Mr. Barragan-Gutierrez, investigators were informed

by a confidential source that he had seen Mr. Barragan-Gutierrez with an AR-15. He was

indicted and eventually pleaded guilty to possession with intent to distribute, conspiracy

to launder money, and—the charge on appeal—possession of a firearm in furtherance of

a drug trafficking crime under 

(c)(1)(A)(i). At his change of plea

hearing, Mr. Barragan-Gutierrez admitted to possessing the AR-15 for a short time after

receiving it in exchange for drugs. While Mr. Barragan-Gutierrez characterized his

actions as merely possessing a firearm at the same time and place as drugs, other

testimony suggested that he began keeping a firearm in his house to protect his drug

supplies after a previous robbery. Mr. Barragan-Gutierrez was ultimately sentenced to

211 months, later reduced to 181 months.

       B.     Procedural Posture

       After the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 

 (2022), Mr. Barragan-Gutierrez filed a 

(a)

motion, proceeding pro se. He petitioned the district court to vacate, set aside, or

correct his sentence, arguing his conviction for firearm possession in furtherance of a

crime was unconstitutional as applied. He contended that § 924(c)(1)(A) is

unconstitutional because it punished his mere possession of a firearm coincident with

a drug trafficking offense.



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      Section 2255 requires challenges to a sentence to be filed within one year of

conviction. Mr. Barragan-Gutierrez argued the time limitation should be waived

because Bruen established a new constitutional rule that allows him to challenge his

conviction retroactively. But the district court found the petition was time-barred.

Although a Supreme Court decision may be retroactively applied in some

circumstances, the district court concluded those circumstances did not apply here.

Barragan-Gutierrez v. United States, 

, 1234 (D. Wyo. 2023).

And, even if the petition were timely, the district court concluded Mr. Barragan-

Gutierrez’s argument would fail on the merits because he was convicted not merely

for possessing a firearm, but for possessing it in furtherance of another crime. 

 at

1235–36. On those dual conclusions, the district court dismissed the petition.

      Mr. Barragan-Gutierrez appealed, and this court granted him a certificate of

appealability on three issues:

      1.     Whether New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

             (2022) identified a new right that applies to more than “law-abiding
             citizens.”

      2.     If Bruen recognized a new right that applies to more than “law-abiding
             citizens,” whether the new right is retroactive on collateral review.

      3.     If the new right is retroactive on collateral review, whether 

(c)(1)(A)(i) is unconstitutional under Bruen.

      We appointed counsel for Mr. Barragan-Gutierrez and requested supplemental

briefing to address the Supreme Court’s decision in United States v. Rahimi, 

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680 (2024), which was issued after we granted the certificate of appealability.1 With the

benefit of this briefing, we resolve the first question presented, concluding that the

Supreme Court has not identified a new constitutional right that is applicable in these

circumstances. Mr. Barragan-Gutierrez’s petition is, therefore, untimely—the one-year

period to challenge his conviction passed in 2016.


                                     II.    Analysis

       Mr. Barragan-Gutierrez contends the Supreme Court has recognized a newly

established right under the Second Amendment that shields law-abiding citizens who

possess firearms in their homes. He argues 

(c)(1)(A)(i)

unconstitutionally infringes on that right by criminalizing firearm possession in the

circumstances that led to his conviction.

       A.     Legal Framework

       A defendant who seeks to overturn his or her conviction typically has fourteen

days from the date of judgment. See Fed. R. App. P. 4(b)(1)(A). But significant

changes in law, newly discovered evidence, or other extraordinary factors sometimes

allow a defendant to bring a new challenge much later—often called a “collateral

attack.”

       Section 2255 provides one such avenue for a collateral attack if a defendant’s

conviction was imposed in violation of the Constitution or federal laws. It provides




       1
        Counsel for Mr. Barragan-Gutierrez has ably discharged his representation in
this appeal.
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that in those circumstances a defendant can request that the sentencing court “vacate,

set aside or correct the sentence.” These motions have a one-year statute of

limitation, triggered on the date of conviction. 

(f)(1).

      A collateral attack may also be raised within one year of the recognition of a

“new right” by the Supreme Court. 

 at § 2255(f)(3). That provision extends the

limitations period for up to one year after the Supreme Court recognizes a new right

and has “made [it] retroactively applicable to cases on collateral review.”2

      “[A] right is ‘newly recognized’ for § 2255(f)(3) purposes if it is ‘not dictated

by precedent.’” United States v. Hopkins, 

 (10th Cir. 2019)

(quoting United States v. Greer, 

 (10th Cir. 2018)). And only

the Supreme Court can recognize a new constitutional right. See Dodd v. United

States, 

, 357–59 (2005). The Supreme Court is said to have

“‘recognized’ an asserted right within the meaning of § 2255(f)(3) if it has formally

acknowledged that new right in a definite way. Correspondingly, if the existence of a

right remains an open question as a matter of Supreme Court precedent, then the

Supreme Court has not ‘recognized’ that right.” Greer, 

 (quoting

United States v. Brown, 

 (4th Cir. 2017) (internal citations

omitted)). Collateral attacks under the statute cannot be based on only an


      2
         Accordingly, the one-year period runs from the latest of four possible
occurrences: (1) final judgment; (2) the date that a government-created obstacle
preventing such a motion is removed; (3) the date a new right is recognized; or
(4) the date when facts supporting the claim become available if they could not
previously be discovered by due diligence. 

(f)(1)–(4) (emphasis
added).
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“extension” of the Supreme Court’s logic from previous cases. Davis v. McCollum,

 (10th Cir. 2015).

      A recent example of this principle is found in Johnson v. United States, where

the Supreme Court recognized for the first time that “imposing an increased sentence

under the residual clause of the Armed Career Criminal Act violates the

Constitution’s guarantee of due process.” 

 (2015). When a

defendant—sentenced more than a year before Johnson was decided—sought to

overturn his conviction, we held his petition was timely because Johnson recognized

a new right not previously announced under the Due Process clause. See United

States v. Snyder, 

 (10th Cir. 2017). In another recent case, Luis

v. United States, the Supreme Court recognized a new right when it held for the first

time that the government could not seize or freeze assets before trial in certain

circumstances. 

 (2016). Because prosecutors had previously enjoyed this

authority, defendants had not been able to exercise this right before the Supreme

Court’s decision; we thus affirmed this recognition as one “not dictated by precedent

existing at the time” and ultimately found the new right was not retroactive.3

Hopkins, 920 F.3d at 701–02.

      But a Supreme Court holding which is “merely an application” of a preexisting

right will not suffice. Chaidez v. United States, 

, 347–48 (2013). And



      3
         Both parties concede that Bruen and Rahimi apply retroactively. Because we
ultimately find there was no new right recognized in those cases, we decline to rule
on that issue.
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the right asserted by a defendant in a § 2255(a) petition must match the newly

recognized right. A petition which avails itself of the Supreme Court’s reasoning,

but “in a different context not considered by the Court,” will be time-barred. Greer,

.

      B.     Mr. Barragan-Gutierrez’s Petition is Time-Barred

      Mr. Barragan-Gutierrez argues that Bruen, and subsequently Rahimi,

recognized a new extension of the Second Amendment right to keep and bear arms,

reopening the window to challenge his conviction. But those cases did not, as our

test requires, “formally acknowledge[]” a new right to possess firearms in furtherance

of a crime, let alone announce it “in a definitive way.” Greer, 

.

      The Second Amendment reads: “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. It was drafted and ratified by revolutionaries,

farmers, and frontiersmen—citizens all too familiar with the essential role played by

firearms in self-defense and preserving liberty, but also with the dangers of their

lawless and reckless use.

      Modern doctrine on the right to bear arms is shaped in large part by the

Supreme Court’s decision in District of Columbia v. Heller, which recognized a general

Second Amendment right to possess firearms by law-abiding citizens in defense of their

home. 

 (2008). But “the right secured by the Second Amendment is not

unlimited. From Blackstone through the 19th-century cases, commentators and courts

routinely explained that the right was not a right to keep and carry any weapon

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whatsoever in any manner whatsoever and for whatever purpose.” 

. While that

case struck down a ban on handgun possession in the home, it did “not undertake an

exhaustive historical analysis” nor “cast doubt on longstanding prohibitions on the

possession of firearms by felons . . . .” 

 Under Heller’s guidance, this circuit, in

uniformity with most circuits, has upheld restrictions on firearm possession by felons and

possession furthering other felonies. See United States v. McCane, 

 (10th Cir. 2009); United States v. Angelos, 

 (10th Cir.

2011) (rejecting a § 2255 petition and collecting cases rejecting challenges to

§ 924(c)). We recently held that neither Bruen nor Rahimi abrogated these decisions.

See Vincent v. Bondi, 

 (10th Cir. 2025). Other courts have done

the same for their pre-Bruen cases on the subject. See United States v. Risner, 

 (6th Cir. 2025) (upholding the constitutionality of § 924(c)(1)(A) post-

Rahimi).

       To be sure, Bruen and Rahimi revisited Heller’s Second Amendment test. In

those cases, the Supreme Court instructed courts to follow an originalist methodology

to determine whether a restriction on firearms violated the right to keep and bear

arms. Specifically, courts must “examine our ‘historical tradition of firearm

regulation’ to help delineate the contours of the right.” Rahimi, 602 U.S. at 691

(quoting Bruen, 

). “[I]f a challenged regulation fits within that

tradition, it is lawful under the Second Amendment.” 

 Because these laws may

infringe on constitutional rights, it is the government’s burden to “justify its

regulation.” 

 To meet this burden, the government must show a “well established

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and representative” principle, derived from the history and tradition, that would

inform the Second Amendment’s textual meaning. Bruen, 

. But such a

principle may be drawn from “historical analogue[s]” to the modern statute, and a

“historical twin” is not needed. 

       Mr. Barragan-Gutierrez argues that Bruen recognized a “new” presumptive

right to bear arms for all people, and that Rahimi reinforced that holding by rejecting

the “reasonable person” limitation. See Rahimi, 602 U.S. at 701–02.4 But neither

Bruen nor Rahimi “formally acknowledged that right in a definite way.” Greer, 

.5 In other words, nothing in those opinions suggest that Heller’s

application to new factual circumstances amounted to a newly minted constitutional



       4
          Mr. Barragan-Gutierrez is not a citizen of the United States. Even if he were
correct about the scope of the right, whether noncitizens possess a right to bear arms
is an unanswered question currently dividing the circuits. See Scott Callaghan, Second
Amendment Implications for Unlawfully Present Aliens, 62 HOUS. L. REV. 191 (2024)
(discussing current state of the circuit split); compare United States v. Sitladeen, 

 (8th Cir. 2023) (holding illegal immigrants do not possess Second Amendment
rights), and United States v. Portillo-Munoz, 

 (5th Cir. 2011) (same), with
United States v. Meza-Rodriguez, 

, 672–73 (7th Cir. 2015), and United
States v. Carpio-Leon, 

 (4th Cir. 2012) (upholding Second Amendment
rights for illegal immigrants). That “large and complicated” question has not been
answered in this circuit. United States v. Huitron-Guizar, 

 (10th Cir.
2012).
       5
         We need not decide whether Bruen or Rahimi announced any new right. If
either case recognized any new right in a definitive way, that right is far too narrow
to apply to Mr. Barragan-Gutierrez, and the cases disclaim any broader reading. See
Bruen, 

 (“Like Heller, we do not undertake an exhaustive historical
analysis . . . of the full scope of the Second Amendment.” (internal quotation marks
omitted)); Rahimi, 602 U.S. at 702 (“[W]e conclude only this: An individual found by
a court to pose a credible threat to the physical safety of another may be temporarily
disarmed consistent with the Second Amendment.” (emphasis added)).
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right that could apply here. In fact, both Bruen and Rahimi characterized their

holdings as consistent with Heller. See Bruen, 

 (“The test we set forth

in Heller and apply today . . . .” (emphasis added)); 

 (“Following the course

charted by Heller . . . .”); Rahimi, 602 U.S. at 690–91, 701–02 (same). Those

statements explain that Bruen and Rahimi are “‘merely an application’ of an existing

right or principle.” Hopkins, 

 (quoting Chaidez, 

).

And Heller “exist[ed] at the time [Mr. Barragan-Gutierrez’s] conviction became

final.” 

       Although many courts have considered the issue, Mr. Barragan-Gutierrez has

not produced a single case holding that Bruen or Rahimi affirmatively recognized a

new right applicable to his conduct. To the contrary, most courts have concluded that

“the Supreme Court [in Bruen] did not expressly indicate that it was announcing a

new rule of constitutional law applicable to cases on collateral review.” In re

Williams, No. 22-13997-B, 

 (11th Cir. Dec. 15, 2022)

(unpublished); see, e.g., Simmons v. United States, No. 17-537, 

, at

*1 (M.D. Fla. Feb. 28, 2024); Battle v. United States, No. 23-3438, 

, at *1 (D.N.J. Sept. 28, 2023); Parks v. United States, No. 119-34, 

, at *2 (S.D. Ga. July 7, 2023), report and recommendation adopted, No.

119-34, 

 (S.D. Ga. Aug. 1, 2023); Leonard v. United States, No.

18-20743-2, 

, at *10 (S.D. Fla. Mar. 10, 2023), aff’d, No. 23-

11722, 

 (11th Cir. Feb. 5, 2025) (all rejecting post-Bruen

§ 2255(f)(3) petitions). As the district court below explained, “[t]here is no

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indication that the Supreme Court in Bruen recognized any new Second Amendment

right in the context of criminality. Like Heller and McDonald before, that is

something Bruen did not do.” Barragan-Gutierrez, 668 F. Supp. 3d at 1234. Neither

did Rahimi.

       Mr. Barragan-Gutierrez, convicted of possessing a firearm in furtherance of a drug

trafficking offense, bears little legal semblance to the individuals in Bruen and Rahimi—a

law-abiding citizen seeking to own a defensive handgun, and a defendant pleading guilty

to possessing a firearm while subject to a domestic violence restraining order,

respectively. As in Greer, where the defendant claimed the Supreme Court recognized a

new right under the sentencing guidelines, even though the Supreme Court case in

question was interpreting the Armed Career Criminals Act, Mr. Barragan-Gutierrez “is

attempting to apply the reasoning of [Bruen and Rahimi] in a different context not

considered by the Court.” Greer, 

.

       In sum, since the Supreme Court has not announced a new right that is applicable

to Mr. Barragan-Gutierrez’s crime of conviction, he is not eligible for § 2255(f)(3)’s

renewed one-year statute of limitation. That provision is an exception to the normal

time limitations of collateral challenges and only applies in “rare cases.” Prost v.

Anderson, 

 (10th Cir. 2011). This is not one of those cases. Mr.

Barragan-Gutierrez’s petition is time-barred.




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                              III.   Conclusion

      We AFFIRM the dismissal of Mr. Barragan-Gutierrez’s § 2255 motion to

vacate his sentence.




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