UNITED STATES COURT OF APPEALS April 15, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-8032

JORGE ENRIQUE BARRAGAN- GUTIERREZ,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Wyoming (D.C. Nos. 2:23-CV-00034-NDF & 2:14-CR-00232-NDF-3) _________________________________ Adam Mueller (Meredith O’Harris with him on the briefs), Haddon, Morgan and Foreman, P.C., Denver, Colorado, for Defendant-Appellant. William A. Glaser, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Nicole M. Argentieri, Acting Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., with him on the briefs, and Nicholas Vassallo United States Attorney, and David A. Kubichek, Assistant United States Attorney, District of Wyoming, with him on the briefs) for Plaintiff-Appellee. _________________________________ Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges. _________________________________ TYMKOVICH, Circuit Judge. _________________________________ Appellate Case: 23-8032 Document: 111-1 Date Filed: 04/15/2025 Page: 2

Federal law makes it a crime to possess a firearm in furtherance of drug trafficking. 28 U.S.C. § 924(c)(1)(A). Defendant Jorge Enrique Barragan-Gutierrez was indicted for that crime after a firearm was found in his home along with incriminating amounts of drugs. He also admitted to receiving a different gun as payment in a drug transaction. He pleaded guilty and was sentenced in 2015 to 211 months of incarceration.

He now challenges his sentence through this habeas petition. 28 U.S.C. § 2255(f)(3). He argues that the Supreme Court’s recent decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024), established that the government cannot criminalize his possession of a firearm under the Constitution’s Second Amendment, guaranteeing the right to keep and bear arms. Accordingly, he says his sentence is unconstitutional and should be vacated.

We disagree. While the Supreme Court has clarified the legal framework for analyzing restrictions on the use and possession of firearms in recent cases, none of those cases has been extended to relieve felons convicted before those decisions. Since those cases do not apply to Mr. Barragan-Gutierrez’s circumstances, we AFFIRM the denial of his petition.

I. Background

A. Underlying Facts

The facts here are undisputed. Mr. Barragan-Gutierrez is a Wyoming drug dealer who, from 2011 to 2014, distributed methamphetamine, marijuana, and heroin. Investigators traced the drugs back to Mr. Barragan-Gutierrez and searched his house,

2 Appellate Case: 23-8032 Document: 111-1 Date Filed: 04/15/2025 Page: 3

which revealed drugs, drug distribution paraphernalia, and a machine gun with ammunition.

During the investigation of Mr. Barragan-Gutierrez, investigators were informed by a confidential source that he had seen Mr. Barragan-Gutierrez with an AR-15. He was indicted and eventually pleaded guilty to possession with intent to distribute, conspiracy to launder money, and—the charge on appeal—possession of