United States v. Clements

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_______________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN DWIGHT CLEMENTS,

Defendant - Appellant.

No. 24- 2171
(D.C. No. 5:23- CR- 01389-MIS-1)
(D. N.M.)

_______________________________________
ORDER AND JUDGMENT
*

_______________________________________
Before BACHARACH, MURPHY, and ROSSMAN, Circuit Judges.

This appeal addresses a defendant’s argument that the district court
should have granted a pretrial motion to dismiss a criminal charge. If the
charge is dismissed after the trial, does the defendant have standing to
appeal the denial of his pretrial motion? We answer no because standing
requires a conviction and the post-trial dismissal prevented a conviction.

*
This order and judgment is not precedential except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value if otherwise
appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit

August 17, 2026

Christopher M. Wolpert
Clerk of Court
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2

1. Following a guilty verdict, the district court dismisses a charge of
possessing a firearm while being a drug user or addict.

A young girl accused her stepfather, Mr. Kevin Clements, of
kidnapping, sexual abuse, and use of a gun during the abuse. Mr. Clements
was charged with sex trafficking, kidnapping, possessing a firearm while
being a drug user or addict, and possessing a firearm after a felony
conviction. Before trial, Mr. Clements moved to dismiss the charges
involving possession of a firearm, arguing that they were based on
unconstitutional prohibitions. The district court denied the motion, and the
jury found guilt on all of the charges. After the verdict, however, the
prosecution moved to dismiss the charge involving possession of a firearm
while being a drug user or addict, acknowledging that the defendant would
otherwise have two convictions for the same act of possession. This time,
the court granted the motion to dismiss. Mr. Clements was convicted on the
other charges.
2. Mr. Clements lacks standing to challenge the denial of his pretrial
motion to dismiss.

Mr. Clements argues that the district court waited too long to dismiss
the charge involving possession of a firearm while being a drug user or
addict. In making this argument, he acknowledges that he wasn’t convicted
of this charge. But he observes that the denial of his pretrial motion
resulted in introduction of prejudicial evidence about his drug use.
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3

This observation leads the government to characterize Mr. Clements’s
argument as one involving “spillover,” which is “when the evidence
admitted to prove a charge as to which the defendant was acquitted” spills
over into the jury’s consideration of other charges. United States v. Simon,
12 F.4th 1, 43 (1st Cir. 2021). But Mr. Clements disavows a freestanding
claim of prejudicial spillover, insisting that he is instead challenging the
constitutionality of the law criminalizing possession of a firearm by drug
users or addicts. Appellant’s Reply Br. at 23–24.
Even if he is right about the constitutional issue, however, a
defendant can ordinarily challenge only a conviction or sentence. See
United States v. Parr, 351 U.S. 513, 518 (1956). And Mr. Clements wasn’t
convicted or sentenced for possessing a firearm while being a drug user or
addict. So a resolution of the statute’s constitutionality would be academic.
McKinney v. Gannett Co., 694 F.2d 1240, 1247– 48 (10th Cir. 1982). Absent
a conviction or sentence on this count, the legal posture is “as though no
charges had been made.” United States v. MacDonald, 456 U.S. 1, 10
(1982).
Like a defendant who hasn’t been charged under the statute, Mr.
Clements wasn’t injured from the statute itself. He was arguably injured
from the introduction of evidence about his drug use. But he isn’t
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complaining about the introduction of that evidence.
1
So he must rely on
the existence of the statute itself for standing. And the statute didn’t cause
any injury to Mr. Clements given the dismissal of the corresponding
charge. So Mr. Clements lacks standing to challenge the constitutionality
of the statute. See United States v. Risner, 129 F.4th 361, 366 (6th Cir.
2025).
2

1
Mr. Clements couldn’t complain about the admissibility of that
evidence because he didn’t object at trial. See Fed. R. Evid. 103(a)(1)
(a party must object to preserve a claim of error in admitting evidence);
United States v. Wright, 363 F.3d 237, 248 (3d Cir. 2004) (declining to
consider the merits of an argument involving prejudicial spillover when the
defendant did not move for a new trial on this ground). Though
Mr. Clements didn’t preserve the argu ment, we could ordinarily consider it
under the plain-error standard. United States v. Tee, 881 F.3d 1258, 1274
n.3 (10th Cir. 2018). But Mr. Clements hasn’t asked us to review the issue
for plain error. So Mr. Clements waived a potential argument involving the
admissibility of the evidence. See United States v. Richardson, 136 F.4th
1261, 1269 (10th Cir. 2025) (stating that a defendant waived an argument
by failing to request plain-error review on an issue that wasn’t preserved in
district court).

2
In United States v. Risner, a defendant was charged with possessing a
firearm after a felony conviction, and the district court denied a pretrial
motion to dismiss this charge as a violation of the Second Amendment. 129
F.4th at 364. T he district court later dismissed this charge based on a plea
agreement. Id. The defendant appealed, arguing that the district court
should have dismissed this charge before the trial. Id. at 365–66. The Sixth
Circuit concluded that the defendant lacked standing because he was never
convicted on this charge.

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Mr. Clements lacks standing to challenge the statute criminalizing
possession of a firearm while using drugs. So we dismiss this part of the
appeal.
3. Our precedents foreclose Mr. Clements’s other challenges.
Though the district court ultimately dismissed the charge of
possessing a gun as a drug user or addict, the court declined to dismiss the
charge for possessing a firearm after a felony conviction. Mr. Clements
appeals that ruling, arguing again that the statute violates the Second
Amendment. But this challenge is foreclosed by our precedent in Vincent v.
Bondi, 127 F.4th 1263 (10th Cir. 2025).
3
So we reject this challenge.
Mr. Clements also challenges the admissibility of testimony by two
women about sexual abuse when they were teenagers. Federal Rule of
Evidence 413(a) permits evidence of uncharged sexual assaults in a
criminal case when the defendant is accused of sexual assault. See United
States v. Benally, 500 F.3d 1085, 1090 (10th Cir. 2007). Mr. Clements
argues that this testimony was inadmissible under Rule 413 because he was
charged with sex trafficking rather than sexual assault.
4

3
Mr. Clements concedes that our precedent Vincent forecloses his
constitutional challenge to this statute. Defendant’s Unopposed Mot. to
Abate at 2.

4
The district court ruled in the alternative that the testimony was
admissible under Federal Rule of Evidence 414. Mr. Clements challenges
this ruling, too. But we need not resolve that challenge given our
conclusion that the testimony was admissible under Rule 413.

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We rejected this argument in United States v. Clay, 148 F.4th 1181
(10th Cir. 2025). There the defendant had made the same argument after
being charged with kidnapping and transportation across state lines with
the intent to engage in illegal sexual activity. We held that Rule 413 refers
to the circumstances of the conduct alleged, not a law or generic crime. Id.
at 1195–9 8. Under that holding, Rule 413 allowed the introduction of the
women’s testimony in Mr. Clements’s trial.
5

Affirmed.
Entered by the Court

Robert E. Bacharach
Circuit Judge

5
Mr. Clements concedes that his argument is foreclosed by Clay.
Defendant’s U nopposed Mot. t o Abate at 2.
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