United States v. Vizcaino-Peguero

── United States v. Vizcaino-Peguero ── Court: Court of Appeals for the First Circuit Date: May 05, 2026 Category: General United States Court of Appeals For the First Circuit No. 23-1932 UNITED STATES, Appellee, v. MORENO VIZCAÍNO-PEGUERO, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge] Before Barron, Chief Judge, Howard and Montecalvo, Circuit Judges. Jackson B. Whetsel, Assistant Federal Public Defender, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Unit, were on brief, for appellant. William A. Glaser, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee. May 5, 2026  BARRON, Chief Judge. Moreno Vizcaíno-Peguero ("Vizcaíno") appeals his conviction for violating 18 U.S.C. § 922(g)(5)(A), which makes it a crime for "alien[s]" "illegally or unlawfully in the United States" to possess a firearm tied to interstate commerce. He contends that § 922(g)(5)(A), as applied to him, violates the U.S. Constitution's Second Amendment. He therefore argues that the United States District Court for the District of Puerto Rico erred in denying his motion to dismiss his indictment. We affirm. I. Vizcaíno was indicted in April 2022 in the District of Puerto Rico on a single count of violating § 922(g)(5)(A). He moved to dismiss the indictment in September 2022 on Second Amendment grounds. The District Court denied the motion in an April 2023 opinion and order. Vizcaíno pleaded guilty in June 2023 to violating § 922(g)(5)(A). 1 The District Court sentenced him to thirty months in prison with a three-year term of supervised release to follow. Vizcaíno timely appealed his conviction. 1 Both parties agree that Vizcaíno's guilty plea does not prevent him from challenging the constitutionality of § 922(g)(5)(A) on appeal. See Class v. United States, 583 U.S. 174, 178 (2018). - 2 -  II. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Under New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), a court faced with a Second Amendment challenge to a firearm regulation must "first consider whether 'the Second Amendment's plain text covers'" the regulated conduct. Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 43 (1st Cir. 2024) (quoting Bruen, 597 U.S. at 17), cert. denied, 145 S. Ct. 2771 (2025). If the Second Amendment's plain text does, then "the government bears the burden of demonstrating that the challenged regulation is consistent with this Nation's historical tradition of firearm regulation." United States v. Minor, 165 F.4th 616, 621 (1st Cir. 2025) (citation modified). Our review is de novo as to each step of the Bruen framework. See id. A. With respect to the first step of the Bruen framework, the g