Case: 23-40258 Document: 92-1 Page: 1 Date Filed: 08/12/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-40258 FILED August 12, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellant, versus Yama Anthony McPherson, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:22-CR-81-1 ______________________________ Before Barksdale, Graves, and Duncan, Circuit Judges.

Per Curiam: * The Government appeals the dismissal of Yama Anthony McPherson’s indictment, which charged him with possession of a firearm by a person subject to a protective order, in violation of 18 U.S.C. § 922(g)(8).

The district court dismissed McPherson’s indictment in the light of United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023) (Rahimi 2023), which held _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-40258 Document: 92-1 Page: 2 Date Filed: 08/12/2025

No. 23-40258

§ 922(g)(8) was facially unconstitutional. During the pendency of this appeal, the Supreme Court overruled Rahimi 2023 in its entirety and held § 922(g)(8)(C)(i) is facially constitutional. See United States v. Rahimi, 602 U.S. 680, 693, 700 (2024) (Rahimi 2024); see also United States v. Perez- Gallan, 125 F.4th 204, 209, 212 n.12 (5th Cir. 2024). Thereafter, our court held § 922(g)(8)(C)(ii) is likewise facially valid. See Perez-Gallan, 125 F.4th at 217.

Contrary to McPherson’s assertions, the Government has neither waived nor forfeited the right to challenge the dismissal of his indictment.

E.g., United States v. Rodriguez, 602 F.3d 346, 350–51 (5th Cir. 2010).

Accordingly, we review the Government’s claim de novo. E.g., United States v. Contreras, 125 F.4th 725, 728 (5th Cir. 2025).

McPherson agrees that the facial constitutional challenge raised in his motion to dismiss is now precluded. In the light of the intervening precedent, we VACATE and REMAND for consideration by the district court in the first instance of McPherson’s as-applied challenge to § 922(g)(8)(C)(ii). See Perez-Gallan, 125 F.4th at 217; see also Utah v. Su, 109 F.4th 313, 319–20 (5th Cir. 2024).