UNITED STATES OF AMERICA VS. DERRICK LAKEITH COCKERHAM a/k/a Bad Foot
Criminal Action No.: 5:25-cr-1-DCB-LGI
IN THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION
May 19, 2025
DAVID C. BRAMLETTE III, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Defendant Derrick Lakeith Cockerham‘s Motion to Dismiss Count One of the Indictment pursuant to
I. Background
Defendant is currently charged with one count of possession of a firearm by a convicted felon (Count 1) and two counts of possession with intent to distribute 50 grams or more of methamphetamine and an amount of cocaine (Counts 2 and 3). [ECF
II. Legal Standard
Under
The Second Amendment guarantees that “the right of the people to keep and bear Arms[] shall not be infringed.”
III. Analysis
A. Facial Challenge
At the outset, the Court denies Cockerham‘s facial challenge to § 922(g)(1), as Fifth Circuit precedent forecloses this argument. United States v. Diaz, 116 F.4th 458, 472 (5th Cir. 2024); United States v. Zinnerman, No. 24-30310, 2025 WL 984605 at *1 (5th Cir. Apr. 2, 2025); United States v. Davis, No. 24-20258, 2025 WL 958265 at *1 (5th Cir. Mar. 31, 2025) (the latter two cases held that Diaz foreclosed the Defendants’ facial challenges to § 922(g)(1)). “To sustain a facial challenge, ‘the challenger must establish that no set of circumstances exists under which the statute would be valid.‘” Diaz, 116 F.4th at 471 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). In Diaz, the Fifth Circuit upheld the validity of § 922(g)(1) when the predicate offense was a felony conviction for theft. See Id. at 467-70. Because the Fifth Circuit has upheld § 922(g)(1) in at least some cases, Defendant‘s facial challenge fails.
B. As-applied Challenge
The Court now proceeds to address Cockerham‘s argument that § 922(g)(1) is unconstitutional as applied to him. As to the first Bruen inquiry, there is no doubt that Defendant is a person covered by the Second Amendment. Indeed, the Fifth Circuit has held that “[t]he plain text of the Second Amendment covers the conduct prohibited by § 922(g)(1).” Id. at 467. The Court therefore turns to the second step of the Bruen analysis, and the burden rests on the Government to demonstrate that “regulating [Cockerham‘s] possession of a firearm is ‘consistent
“analogical reasoning under the second amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risk[s] endorsing outliers that our ancestors would never have accepted. On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
The Government maintains that disarming Cockerham under § 922(g)(1) “does not punish [his] drug trafficking crimes ‘to an extent beyond what was done at the founding.‘” [ECF No. 22] at 4 (quoting Diaz, 116 F.4th at 469) (citing United States v. Rahimi, 114 S. Ct. 1889, 1898 (2024)). To support this conclusion, the Government draws on the similarities between the modern felony of drug trafficking and the founding-era crimes of trafficking in contraband and counterfeiting/forgery. Id. at 6. “Through the end of the 1700s, many American jurisdictions authorized complete forfeiture of a felon‘s estate” as a
Defendant argues that there is no history and tradition of capital punishment or estate forfeiture for a felony comparable to possession with intent to distribute cocaine. [ECF No. 24] at 5. He explains that because at the founding “drugs and alcohol were not regulated at all,” general colonial-era crimes of trafficking in contraband cannot serve as analogues to drug sales. Id. at 6-7. However, a historical analogue need not be a “twin” to the modern law-the fact that trafficking in contraband was punishable by capital punishment or estate forfeiture at the founding provides a sufficient analogue to modern drug trafficking.
The Government does not cite to any specific founding-era laws, but other district courts have found an analogue in a Virginia law allowing the death penalty for the crime of knowingly receiving a stolen horse; a federal law enacted by the Second Congress that authorized capital punishment for mail
Even if the above founding-era crimes were not sufficiently similar, § 922(g)(1) is nonetheless constitutional as applied to criminal defendants with a history of drug trafficking because drug traffickers pose a threat to society that would be heightened by possession of firearms. See United States of America v. Jesse Ray McCuin, No. 1:24-CR-38-TBM-BWR-1, 2025 WL 1285680 (S.D. Miss. May 1, 2025). In the case at hand, the
In this case, “lawmakers have made a reasoned decision that drug traffickers are dangerous and disruptive to society. Especially so given the well understood connection between drugs, firearms, and deadly violence, which the Supreme Court has described as a ‘dangerous combination.‘” United States v. Reichenbach, No. 4:22-CR-00057, 2023 WL 5916467 at *8 (M.D. Pa. Sept. 11, 2023). (citing Muscarello v. United States, 524 U.S. 125, 132 (1998); Alaniz, 69 F.4th 1124, 1130 (noting “the increased danger of violence when drug traffickers possess weapons” (quoting
C. Equal Protection Clause Argument
Defendant next argues that § 922(g)(1) violates the Equal Protection Clause of the Fifth Amendment. This clause requires that “all persons similarly situated be similarly treated.” United States v. Howard, No. 24-40033, 2024 WL 4449866 at *2 (5th Cir. Oct. 9, 2024), cert. denied, No. 24-6290, 2025 WL 581782 (U.S. Feb. 24, 2025) (citing Stefanoff v. Hays Cnty., 154 F.3d 523, 525-26 (5th Cir. 1998)). In its response to Cockerham‘s motion, the Government cites United States v. Darrington, in which the Fifth Circuit rejected the argument that § 922(g)(1) violates the Equal Protection Clause by depending on state law to define criminal conduct and to restore a felon‘s Second Amendment rights, upholding its constitutionality. 351 F.3d 632, 634-35 (5th Cir. 2003). In Darrington, the Court declined to find that § 922(g)(1) burdens
Defendant argues that the Fifth Circuit has “now unequivocally rejected” Darrington as precedent and therefore the Government‘s reliance upon it is misplaced. [ECF No. 24] at 9. At the time of the Darrington decision, the court‘s precedent “exclude[d] felons as a class from the Second Amendment‘s protection of ‘the right of Americans generally to keep and bear their private arms as historically understood in this country.‘” Darrington, 351 F.3d at 635 (quoting United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001). Defendant argues that the Fifth Circuit‘s case law holding that § 922(g)(1) does not burden a fundamental right is now obsolete because the cases in which the court so held have been set aside by Bruen. [ECF No. 20] at 13. Now, Cockerham maintains, “because the statute contains no uniform definition of the conduct that will result in the loss of the right to possess a firearm and instead relies on diverse state definitions, § 922(g)(1) cannot withstand strict scrutiny.” Id.
However, the Fifth Circuit has adopted the Darrington stance on § 922(g)(1) and the Equal Protection Clause in its post-Bruen case law. United States v. Howard, No. 24-40033, 2024 WL 4449866 (5th Cir. Oct. 9, 2024), cert. denied, No. 24-6290, 2025 WL 581782 (U.S. Feb. 24, 2025); United States v. Steward, No. 23-20515, 2024 WL 3082334 (5th Cir. June 21, 2024). The court categorized its holding in Darrington as a determination “that governmental restrictions on the right to bear arms need not meet a strict scrutiny test because it was not a fundamental right.” Howard 2024 WL 4449866 at *2 (citing Darrington, 351 F.3d at 635). Both the Steward and Howard panels rejected the argument that Bruen made this holding obsolete. The Howard holding adopted the Steward conclusion that “‘[n]either the Supreme Court nor this court sitting en banc has overruled Darrington.‘” Id. (citing Steward, 2024 WL 3082334 at *1. Because this Court finds that Darrington still controls, it denies Defendant‘s motion to dismiss based on an Equal Protection Clause violation.
D. Due Process Argument
Cockerham next argues that § 922(g)(1) violates his Fifth Amendment right to Due Process by stripping him of his ability to possess firearms and ammunition as “an automatic, uncontestable consequence” of his felony conviction. [ECF No. 20] at 14 (citing United States v. Rahimi, 602 U.S. 680, 748 (Thomas, J., dissenting). The Fifth Amendment provides that “[n]o person shall ... be deprived of life, liberty, or property without due process of law.”
Cockerham asserts that § 922(g)(1) “suffers these same defects,” as it strips a felon of his Second Amendment rights as an automatic consequence of a felony conviction, requiring no finding that the person is dangerous and should be disarmed other than the fact that he has been convicted of a felony. [ECF No. 20] at 14. However, Defendant was afforded process before his right to bear arms was abridged-specifically, he was entitled to a jury trial on the underlying conviction. [ECF No. 22] at 12. Defendant‘s argument that § 922(g)(1) does not
While Justice Thomas does state that § 922(g)(8) “strips an individual of his ability to possess firearms and ammunition without any due process,” he notes that “Rahimi does not ask the Court to consider, and I do not address, whether § 922(g)(8) satisfies the Due Process Clause.” Rahimi, 602 U.S. at 748 n.1. In the language quoted by Defendant, Justice Thomas explains that § 922(g)(8) requires no process outside of that required to obtain a domestic violence restraining order; he does not argue that it violates the Due Process Clause. Id. Furthermore, Justice Thomas notes that § 922(g)(8) “does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a
While § 922(g)(1) does not require any process beyond a criminal conviction before disarming a felon, Defendant fails to explain how this lack of process violates the Due Process Clause, which requires that the government “provide ‘notice and an opportunity for hearing appropriate to the nature of the case.’ To satisfy the requirements of procedural due process, notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.‘” Echavarria v. Pitts, 641 F.3d 92 (5th Cir. 2011), as revised (June 21, 2011) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950)). Before a person is disarmed under § 922(g)(1), he is granted the right to a jury trial on the underlying conviction; Congress has imposed disarmament as a punishment for committing a felony. Furthermore, § 922(g)(1) is sufficiently clear to put a reasonable person on notice that if they commit a crime punishable by imprisonment of more than one year, they will be subject to disarmament. Therefore, Defendant‘s argument that the
Cockerham also argues that § 922(g)(1) violates the Due Process Clause of the Fifth Amendment because it fails to provide an effective process for restoring a felon‘s Second Amendment rights. [ECF No. 24] at 10-11. The Government asserts that there are processes by which a person can have his Second Amendment rights restored, and that therefore there is no Due Process violation. [ECF No. 22] at 11. First,
... Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Second,
... Plaintiff‘s due process claim is foreclosed by the Supreme Court‘s decision in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). A class of convicted sex offenders in Doe brought a procedural due process challenge to Connecticut‘s sex offender registry law, which required all persons convicted of certain sex-related crimes to register with the State following their release from prison. The sex offender class complained that the law, which subjected them to reporting requirements without affording the opportunity of a hearing to demonstrate whether they were likely to be currently dangerous to the community, violated due process. The Supreme Court, in rejecting the sex offenders’ challenge, held that individualized hearings were not required because the registration requirement was based “on the fact of previous conviction, not the fact of current dangerousness.” Id. at 4. The Supreme Court reasoned that “where the fact to be proven at the hearing is not relevant to the legal scheme responsible for the deprivation (that is, where it is clear that the government would strip the individual of his liberty even if he were able to prove or disprove the particular the fact or set of facts), such a hearing would be an exercise
in futility, which is not required by procedural due process.” Black v. Snow, 272 F.Supp.2d 21, 34 (D.D.C. 2003) (emphasis in original), aff‘d sub nom. Black v. Ashcroft, 110 F. App‘x 130 (D.C. Cir. 2004). Doe‘s rationale “dooms any procedural challenge to § 922(g)(1),” as “[t]he plain language of that provision makes clear Congress‘s decision to bar all convicted felons (not merely those with violent tendencies or who otherwise present an ongoing danger to society) from possessing firearms.” Id. (emphasis in original). Here, as with the sex offender registry law in Doe, Section 922(g)(1) “make[s] the deprivation turn solely on the fact of the prior conviction-not the significance of that conviction for future behavior.” Id. at 34-35. It follows, then, that “due process does not entitle [P]laintiff to a hearing to determine whether he is currently dangerous because the results of such a hearing would have no bearing on whether he is subject to the disability imposed by § 922(g)(1).” Id. at 35.
593 F.Supp.3d at 81. The Court agrees with the reasoning of the Zherka court and finds that Plaintiff‘s due process argument fails.
The Court further notes that § 921(a)(20) also provides an avenue for relief. Defendant argues that the relief provided in this provision is “too limited to offer meaningful relief.” [ECF No. 24] at 11. He makes this assertion baldly, offering no support for what qualifies as “too limited” under the Due Process Clause. Therefore, because Congress has provided at least one method for restoration of the rights taken away under § 922(g)(1), the Court finds further reason to deny Defendant‘s motion on due process grounds.
E. Vagueness
Defendant next argues that § 922(g)(1) is unconstitutionally vague because it “fails to provide a person of ordinary intelligence fair notice of what conduct is prohibited.” [ECF No. 20] at 14. He explains that in Diaz, the Fifth Circuit held that § 922(g)(1) was constitutional as applied to Diaz, but that this decision did not “foreclose future as-applied challenges by defendants with different predicate convictions.” United States v. Diaz, 116 F.4th 458, 469, 470 n.4 (5th Cir. 2024). Cockerham argues that because it is unclear what subset of felons are subject to § 922(g)(1), the provision is void for vagueness. His argument fails.
There is a “strong presumptive validity that attaches to an Act of Congress.” Skilling v. United States, 561 U.S. 358, 403 (2010) (quoting United States v. Nat‘l Dairy Prods. Corp., 372 U.S. 29, 32 (1963)). Furthermore, “statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” Nat‘l Dairy Prods. Corp., 372 U.S. at 32. A Louisiana district court found that a defendant‘s S 922(g)(1) vagueness argument failed, explaining that
“A criminal law is void for vagueness under the Fifth Amendment when it is ‘so vague that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary enforcement.’ Johnson v. United States, 576 U.S. 591, 595 (2015). ‘[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.’ United States v. Mazurie, 419 U.S. 544, 550 (1975); see United States v. Clark, 582 F.3d 607, 614 (5th Cir. 2009) (‘As a threshold matter, [defendant] must show that the statute is vague in his case.’ (emphasis in original)). ‘A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’ Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 (1982).”
United States v. Celestine, No. CR 24-92, 2025 WL 522643, at *3 (E.D. La. Feb. 18, 2025).
There is no authority holding § 922(g)(1) void for vagueness. [ECF No. 22] at 12. As the Supreme Court stated in Rahimi, “[o]ur tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” Rahimi, 144 S. Ct. at 1902. Disarming a person who has been convicted of drug possession with intent to distribute fits within this tradition; therefore, § 922(g)(1) is not vague as applied to Cockerham. It explicitly disarms a person who has committed a crime punishable by imprisonment for a term exceeding one year, and Cockerham‘s crimes were not only felonies, but clearly fit within the history and tradition of disarming individuals who pose a danger to the physical safety of others. Therefore, Defendant‘s vagueness challenge fails.
F. Commerce Clause
Defendant argues that § 922(g)(1) is an unconstitutional extension of Congress‘s authority under the Commerce Clause. This Court is bound to reject this argument, as the Fifth Circuit has found that Congress appropriately exercised its power under the Commerce Clause in enacting § 922(g)(1). See United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996); United States v. Diaz, 116 F.4th 458, 462 (5th Cir. 2024); United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (“[W]e have consistently upheld the constitutionality of § 922(g)(1)“). In fact, Cockerham himself acknowledges that the Fifth Circuit has rejected this argument and raises it “to preserve the record for further review.” [ECF No. 20] at 16. Because this Court is bound to follow Fifth Circuit precedent, Defendant‘s Commerce Clause argument fails.
I. Conclusion
For the foregoing reasons, the Court DENIES Defendant Cockerham‘s Motion to Dismiss Count One of the Indictment.
SO ORDERED AND ADJUDGED this 19th day of May, 2025.
/s/ David Bramlette
DAVID C. BRAMLETTE III
UNITED STATES DISTRICT JUDGE