United States v. Fort

── United States v. Fort ── Court: Court of Appeals for the First Circuit Date: May 12, 2026 Category: General United States Court of Appeals For the First Circuit No. 25-1024 UNITED STATES OF AMERICA, Appellee, v. GARRITO FORT, a/k/a Tony, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge] Before Barron, Chief Judge, Lynch and Montecalvo, Circuit Judges. Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC was on brief, for appellant. Alexander S. Chen, Assistant United States Attorney, with whom Erin Creegan, United States Attorney, and Charles L. Rombeau, Assistant United States Attorney, were on brief, for appellee. May 12, 2026  LYNCH, Circuit Judge. Garrito "Tony" Fort pled guilty to one count of possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), reserving two arguments. Using a pistol he brought to an altercation with his girlfriend's family and a family friend, Fort killed the family friend and seriously injured his girlfriend's uncle on November 1, 2021. Fort appeals, arguing that the district court erred (1) in precluding him from presenting at trial a justification defense, an affirmative defense rooted in the common law and recognized in this circuit's § 922(g) cases, with Fort also contending that the Second Amendment embodies a more defendant-friendly justification defense; and (2) in denying his motion to dismiss the indictment, arguing that § 922(g)(1) is unconstitutional as applied to him under the Second Amendment on the specific facts of this case. Fort also argues that his above-Guidelines sentence of 60 months' imprisonment is substantively unreasonable. We affirm. I. Because Fort's Second Amendment as-applied challenge turns largely on his proposed justification defense, we turn to that defense first. A district court may preclude the presentation of an affirmative defense to a jury if the defendant fails to produce sufficient evidence "to create a triable issue." United States v. Gottesfeld, 18 F.4th 1, 15 (1st Cir. 2021) (quoting United States v. Lebreault-Feliz, 807 F.3d 1, 4 (1st Cir. 2015)). - 2 - The parties disagree as to whether our review is governed by a de novo or an abuse of discretion standard. Our decisions reviewing whether a defendant has made a sufficient threshold showing to warrant submission of an affirmative defense to the jury use de novo review. See Gottesfeld, 18 F.4th at 15; United States v. Henderson, 911 F.3d 32, 36 (1st Cir. 2018); Lebreault-Feliz, 807 F.3d at 4. Other decisions use abuse of discretion review when addressing related but distinct issues. See United States v. Diaz-Castro, 752 F.3d 101, 108 (1st Cir. 2014) (reviewing for abuse of discretion the exclusion of evidence offered to support the asserted affirmative defenses, including duress, and reviewing de novo the refusal to give the requested jury instruction); United States v. Florentino-Rosario, 19 F.4th 530, 534, 538 (1st Cir. 2021) (explaining that "[p]reserved objections to denials of requested jury instructions are reviewed under a 'split standard': questions as to whether the applicable law is correctly stated are reviewed de novo, while questions as to whether the instruction's phrasing is unfairly prejudicial are reviewed for abuse of discretion" (quoting DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir. 2009))). To the extent there is tension, we need not resolve it here because Fort's arguments fail even under de novo review.