USCA11 Case: 24-10142 Document: 35-1 Date Filed: 08/26/2025 Page: 1 of 4

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10142 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

THELONIOUS WAYNE KIRBY, Defendant- Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:22-cr-00026-TJC-LLL-1 ____________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before NEWSOM, ABUDU, and MARCUS, Circuit Judges. PER CURIAM: USCA11 Case: 24-10142 Document: 35-1 Date Filed: 08/26/2025 Page: 2 of 4

2 Opinion of the Court 24-10142

This appeal on remand from the Supreme Court requires us to decide whether United States v. Rahimi, 144 S. Ct. 1889 (2024), abrogated our decision in United States v. Rozier, 598 F.3d 768, 770– 71 (11th Cir. 2010), upholding the federal law that bars felons from possessing firearms and ammunition, see 18 U.S.C. § 922(g)(1). On remand and following this Court’s binding precedent in United States v. Dubois, 139 F.4th 887, 893 (11th Cir. 2025), we conclude that Rahimi did not abrogate our holding in Rozier that section 922(g)(1) is constitutional under the Second Amendment. We re- instate our previous opinion and affirm Thelonious Kirby’s sen- tence. Kirby appeals his conviction for being a convicted felon in possession of a firearm. He argues that 18 U.S.C. § 922(g)(1) vio- lates the Second Amendment and the Commerce Clause. The gov- ernment has moved for summary affirmance, arguing that, under our binding precedent, § 922(g)(1) is constitutional. We review a statute’s constitutionality de novo. United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010). Summary disposition is appropriate if “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1 Under our prior panel precedent rule, we are bound by our prior published decisions that have not been

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981. USCA11 Case: 24-10142 Document: 35-1 Date Filed: 08/26/2025 Page: 3 of 4

24-10142 Opinion of the Court 3

overruled by the Supreme Court or this Court sitting en banc. United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012). The Second Amendment to the United States Constitution provides that: “A well regulated Militia, being necessary to the se- curity of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Under federal law, a person who has been convicted of a crime punishable by more than one year’s imprisonment may not possess a firearm or ammu- nition that has moved through interstate or foreign commerce. 18 U.S.C. § 922(g)(1). We have held that § 922(g)(1)’s prohibition on felon disarmament does not violate the Second Amendment and that § 922(g)(1) is a valid use of the congressional Commerce Clause power. United States v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996); Rozier, 598 F.3d at 770–71. Kirby’s argument -- that 18 U.S.C. § 922(g)(1) violates the Second Amendment and the Commerce Clause -- is foreclosed by our binding precedents. See McAllister, 77 F.3d at 389–90; Rozier, 598 F.3d at 770–71. Moreover, we recently held that Rozier was not abrogated by the Supreme Court’s decisions in N.Y. State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), or Rahimi, 602 U.S. 680. See Dubois, 139 F.4th at 891–94.2 And we are bound by all of our

2 We originally issued Dubois in March 2024. The Supreme Court released its

decision in Rahimi in June 2024. Dubois filed a petition for a writ of certiorari, and the Supreme Court vacated the judgment and remanded to this Court for consideration in light of Rahimi. Dubois v. United States, 145 S. Ct. 1041, 1042 (2025). On remand, we reinstated our previous opinion, holding “that Rahimi USCA11 Case: 24-10142 Document: 35-1 Date Filed: 08/26/2025 Page: 4 of 4

4 Opinion of the Court 24-10142

prior published decisions because they have not been overruled by the Supreme Court or this Court sitting en banc. Romo-Villalobos, 674 F.3d at 1251. Accordingly, we grant the government’s motion for summary disposition, since it is “clearly right as a matter of law” that § 922(g)(1) is constitutional. See Groendyke Transp., 406 F.2d at 1162. On remand, we reinstate our prior decision and AFFIRM Kirby’s sentence.3

-- like [Bruen] -- did not abrogate our holding in Rozier that section 922(g)(1) is constitutional under the Second Amendment.” 139 F.4th at 889–90. 3 Because our Court already has issued an opinion on remand in Dubois,

Kirby’s motion to hold this case in abeyance pending Dubois is DENIED AS MOOT.