United States v. Anthony Mackey

── United States v. Anthony Mackey ── Court: Court of Appeals for the Eleventh Circuit Date: April 24, 2026 Category: NEW USCA11 Case: 25-10021 Document: 47-1 Date Filed: 04/24/2026 Page: 1 of 13 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10021 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY TYRONE MACKEY, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:23-cr-00137-TJC-MCR-1 ____________________ Before JORDAN, KIDD, and ANDERSON, Circuit Judges. PER CURIAM: Anthony Mackey appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). On appeal, he first argues that the district court USCA11 Case: 25-10021 Document: 47-1 Date Filed: 04/24/2026 Page: 2 of 13 2 Opinion of the Court 25-10021 plainly erred in denying his motion for a new trial because the gov- ernment argued facts not in evidence during closing and rebuttal arguments about his ownership of a backpack containing a pistol and about the weight of the shotgun. Both the pistol and the shot- gun were found in a car that he was driving. Second, he argues that the court erred in convicting him under § 922(g)(1) because the statute exceeds Congress’s authority under the Commerce Clause and violates his Second Amendment rights, in light of United States v. Rahimi, 602 U.S. 680 (2024), and N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). I. DISCUSSION A. Improper Remarks by Prosecution We review a district court’s denial of a motion for a new trial under Federal Rule of Criminal Procedure 33 for abuse of discre- tion. United States v. Pulido, 133 F.4th 1256, 1275 n.15 (11th Cir. 2025). Rule 33 provides that, on a defendant’s motion, a court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). We have defined the interest-of-justice standard as “a broad standard” that “is not lim- ited to cases where the district court concludes that its prior ruling, upon which it bases the new trial, was legally erroneous.” United States v. Vicaria, 12 F.3d 195, 198 (11th Cir. 1994). The filing of a motion for a new trial does not cure a defendant’s failure to con- temporaneously object at trial, and such claims are reviewed for plain error. United States v. Bobal, 981 F.3d 971, 975 (11th Cir. 2020). To show plain error, the defendant must demonstrate that: (1) an USCA11 Case: 25-10021 Document: 47-1 Date Filed: 04/24/2026 Page: 3 of 13 25-10021 Opinion of the Court 3 error occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Smith, 459 F.3d 1276, 1283 (11th Cir. 2006). Further, if the first three conditions are met, we may exercise our discretion to notice a forfeited error only if the error seriously affects the fairness or integrity of judicial proceedings. Id. An error is not plain unless it is contrary to explicit statut