In an unpublished disposition in United States v. Glisson, the Fourth Circuit has affirmed convictions and sentences on narcotics and firearms charges for two brothers, while vacating and remanding on one count for one of the brothers based on a Second Amendment as-applied challenge.
The panel that issued the per curiam disposition consisted of Judge Gregory, Judge Shedd, and Judge Davis. Judge Davis wrote an opinion concurring in part and concurring in the judgment.
The puzzling aspect of the decision is its remand for further evidentiary development of an as-applied Second Amendment challenge to 922(g)(9), which the Fourth Circuit upheld against a similar challenge in United States v. Staten, issued last December. In his partial concurrence, Judge Davis notes that the remand “may seem puzzling in some sense in light of United States v. Staten, — F.3d —, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), but given the disposition of this appeal, it would seem likely that the government will move successfully to dismiss that charge altogether upon remand.”
Judge Davis is right. The remand does seem puzzling. And the puzzle does not go away upon considering that the remand may be pointless. Is there a new principle that the Fourth Circuit will vacate and remand for harmless non-error?
The more prudent course seemingly would have been to affirm in light of Staten. The panel’s failure to do so, even in an unpublished disposition, suggests that the court may countenance insistence on individualized determinations under Second Amendment challenges to convictions under 922(g)(9), notwithstanding that such insistence appears unwarranted under binding circuit case law.