USA v. Moss

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 20-10038-JWB
ROGER MOSS,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for reconsideration. (Doc. 221.) On
June 10, 2026, this court entered an order denying Defendant’s § 2255 motion and his
supplemental § 2255 motion. (Doc. 214.) In doing so, the court addressed seventeen claims raised
by Defendant and denied a certificate of appealability. Defendant filed a notice of appeal. (Doc.
217.) After doing so, Defendant moved for reconsideration. (Doc. 221.) The Tenth Circuit has
now abated the appeal pending the court’s ruling on Defendant’s motion for reconsideration. (Doc.
223.) The court has considered Defendant’s motion, the supplement (Doc. 224), the government’s
response in opposition (Doc. 225), and the reply brief (Doc. 226). 	Defendant’s motion for
reconsideration (Doc. 221) is DENIED for the reasons herein.
In his motion, Defendant seeks reconsideration based on the Supreme Court’s decision in
United States v. Hemani, 146 S. Ct. 1677 (2026). In that case, the defendant was prosecuted for a
violation of 18 U.S.C. § 922(g)(3), which prohibits individuals who are unlawful users of any
controlled substance from possessing a firearm or ammunition. 	The defendant typically used
marijuana a few times a week and kept a gun in his home. The defendant asserted that the statute
was unconstitutionally vague as applied to him. 	The Court held that the Second Amendment
prohibited prosecution of the defendant; however, the Court indicated that its holding was a narrow
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one in that it did not “address efforts to ban addicts . . . or those presently intoxicated, from
possessing a firearm” nor did the court “address whether the government could bring a prosecution
under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or
any other drug) renders him a danger to himself or others.” Hemani, 146 S. Ct. at 1693.
Defendant now moves for reconsideration of this court’s prior order on the basis that
Hemani provides him with relief. 	Defendant argues that his conviction under § 922(g)(3) is
unconstitutional as applied to him because the government did not prove that he was intoxicated
at the time he possessed the firearm. Further, Defendant argues that his § 924(c) conviction must
be vacated because it rests on the unconstitutional predicate of the § 922(g)(3) charge. Defendant
also argues that his § 841 counts were intertwined with his status as a drug user and that the jury
was improperly influenced by this status. He argues that the Hemani decision requires the court
to vacate his convictions. The court disagrees.
Notably, the Tenth Circuit considered Defendant’s as applied argument as to § 922(g)(3)
on appeal. The court of appeals held that § 922(g)(3)’s “phrase ‘unlawful user of . . . any controlled
substance’ is clear in its application to Defendant's conduct. The facts presented at trial, coupled
with the reasonable inferences the jury was entitled to draw from those facts, support the
conclusion that Defendant was an ‘unlawful user’ of illegal drugs, one whose use was ‘regular and
ongoing’ while in possession of a firearm.” 	United States v. Moss, No. 22-3101, 2024 WL
4541738, at *4 (10th Cir. Oct. 22, 2024), cert. denied, 145 S. Ct. 1461 (2025). Notably, unlike
Hemani, the circumstantial evidence did not show that he was a mere user of marijuana. Rather,
Defendant’s home contained substantial amounts of drugs, including cocaine, methamphetamine
in crystal and pill form, heroin, fentanyl, and marijuana. Id. Additionally, there was a used crack
pipe and a firearm underneath the bed, methamphetamine pills in a suit jacket pocket, two crack
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pipes on the counter, and baggies on Defendant’s checkbook that contained fentanyl pills. Id. All
of this evidence supported a determination by the Tenth Circuit that Defendant’s “drug use was
regular and ongoing at the time he possessed firearms.” 	Id. 	The court of appeals rejected
Defendant’s as-applied challenge to his conviction.
Now, Defendant asks this court to essentially overrule that decision in light of Hemani.
The court declines to do so. Hemani involved an as-applied challenge to the statute with facts that
were starkly different than the facts in this case. Further, the Hemani court held that the ruling
was a narrow one. This court is bound by the Tenth Circuit’s holding which found that the statute
was not unconstitutionally vague as applied to Defendant. Therefore, the court denies Defendant’s
motion to reconsider its ruling denying Defendant’s § 2255 claim in light of Hemani. Defendant’s
remaining arguments—that his other convictions should also be set aside because of the unlawful
§ 922(g)(3) charge—are moot as a result of the court’s ruling.1
An appeal from a final order on a § 2255 motion may not be taken absent a certificate of
appealability, which may issue only if a petitioner has made a substantial showing of the denial of
a constitutional right. 	28 U.S.C. § 2253(c)(2). 	The court GRANTS a limited certificate of
appealability to Defendant as to whether his conviction under § 922(g)(3) should be vacated in
light of Hemani. 	The court concludes Defendant has failed to make such a showing as to all
remaining issues and accordingly a certificate of appealability is DENIED as to the remaining
claims. IT IS SO ORDERED. Dated this 16th day of October, 2026.
s/ John W. Broomes
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
1 Even if Hemani required vacatur of this conviction, Defendant’s arguments that his other convictions were somehow
tainted by or predicated on his conviction under § 922(g)(3) and should therefore be set aside lack merit for the reasons
set forth by the government.
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