Willie Junior Lilly was convicted in the Middle District of North Carolina of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The incident began in May 2023 when law enforcement responded to a report of a man threatening someone with a firearm in Norwood, North Carolina. Officers found Lilly standing next to a moped with a loaded Glock 26 handgun in his hoodie pocket. At the time of the arrest, Lilly had four prior felony convictions, including a 2012 conviction for possession with intent to sell a Schedule II controlled substance and a 2014 consolidated conviction for being a felon in possession of a firearm and possession with intent to sell marijuana. He also had a 2017 federal conviction for being a felon in possession of a firearm. Lilly moved to dismiss the indictment arguing that § 922(g)(1) was unconstitutional as applied to him under the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The district court denied the motion, and Lilly entered a guilty plea that preserved his right to appeal the constitutional ruling. At sentencing, the district court calculated his Guidelines range based on a base offense level of 24, treating his 2012 and 2014 drug convictions as two prior felony convictions for controlled substance offenses. This resulted in a sentencing range of 70 to 87 months, and the court imposed a 70-month prison sentence followed by three years of supervised release.
The Fourth Circuit addressed two primary arguments raised by Lilly. First, regarding the Second Amendment challenge, the court held that Lilly's as-applied challenge to 18 U.S.C. § 922(g)(1) is foreclosed by binding circuit precedent. The court cited United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), which categorically forecloses all as-applied challenges to § 922(g)(1). The court noted that only the full court sitting en banc can overrule a panel decision, and since Lilly did not contest that precedent foreclosed his argument, the court rejected the constitutional challenge. Second, regarding the sentencing calculation, the court analyzed whether the district court correctly applied U.S.S.G. § 2K2.1(a)(2). This section sets a base offense level of 24 if the defendant committed the offense after sustaining at least two felony convictions for a crime of violence or a controlled substance offense. Lilly argued that the 2014 marijuana conviction should not count because it did not receive criminal history points due to being consolidated with a more serious offense under North Carolina law. He relied on the Guidelines commentary, which states that only convictions receiving criminal history points should be used. The court applied the framework from Kisor v. Wilkie, determining that the text of § 2K2.1(a)(2) is unambiguous. The plain text requires counting felony convictions for controlled substance offenses without mentioning criminal history points. Because the text is clear, the court could not defer to the commentary. The court further explained that adopting Lilly's interpretation would effectively rewrite the Guidelines, a task reserved for the Sentencing Commission or Congress. Finally, the court rejected Lilly's argument that the government was collaterally estopped from arguing the conviction counted, noting that collateral estoppel does not apply when there has been a major change in governing law. The adoption of the Kisor framework in 2022 constituted such a change, rendering the government's prior concession in a 2017 case inconsistent with prevailing doctrine.
Lilly's conviction and sentence are affirmed without modification. The decision reinforces the Fourth Circuit's stance that as-applied Second Amendment challenges to felon-in-possession statutes are unavailable to defendants. It also clarifies the methodology for interpreting the Sentencing Guidelines, establishing that unambiguous text controls over commentary, even when the commentary suggests a different result. This ruling limits the ability of defendants to argue that consolidated convictions should be excluded from sentencing enhancements if the underlying offense qualifies as a controlled substance offense under the Guidelines text. The case is remanded to the district court to enforce the original sentence.
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