LISA Newsletter for June 22, 2026 – Supreme Court Holds 922(g)(3) ‘Doper-In-Possession’ Statute Unconstitutional in Some Cases
LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.
Edited by Thomas L Root, MA JD
Vol 12, No 25
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Supremes Uphold Hemani 2nd Amendment Claim in Narrow Ruling
BOP Admin Remedy Procedure – The House Always Wins Sentencing
SCOTUS Holds Appellate Waivers Aren’t Always Ironclad
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SUPREMES UPHOLD HEMANI 2ND AMENDMENT CLAIM IN NARROW RULING
Everything these days comes with a narrative. The Knicks only lose one because Trump was there, but win the next game because Taylor Swift brings the magic. Antifa “operatives” spiked the Reflecting Pool with algae.
Narratives attach to Supreme Court cases as well.
Last week, SCOTUS decided that 18 USC 922(g)(3) – which prohibits people who illegally use controlled substances from possessing guns – could be unconstitutionally applied in certain uses. Defendant Ali Hemani was caught with cocaine, some weed and a gun in his home.
The government’s 922(g)(3) possession charge was thrown out by the US District Court for the Eastern District of Texas, which held that making Ali’s gun possession a felony just because he liked to blow a little dope violated his 2nd Amendment right to keep and bear arms. The 5th Circuit agreed.
The high court’s decision is a “rollicking opinion” that is “worth a read,” the Wall Street Journal said. “Yet it provides few hints of how to draw the line in tougher cases.”
President Trump’s Dept of Justice brought the case to the Supreme Court. The narrative was that the DOJ thought it had the perfect unsympathetic defendant, a dual US and Pakistani citizen who had ties to the Iranian Revolutionary Guard Corps and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran. The narrative was that SCOTUS thought that slamming a bum like Ali would be an easy lift.
Others thought that the Supreme Court could use a slam-dunk 2nd Amendment case, like finding Ali Hemani – who used a little recreational pot and owned a Glock – was constitutionally protected, as a springboard to addressing the stickier questions about the constitutionality of 922(g)(1), the subsection that bans all felons from ever possessing a gun.
The Court disappointed both narratives, holding in a 9-0 opinion that, as applied to Ali, 922(g)(3) violated his 2nd Amendment rights. The opinion by Justice Neil Gorsuch was minimalist:
In many respects, this case is a narrow one. We do not address efforts to ban addicts… or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms… We do not address 18 USC 922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even 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. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
A few Justices, however, were more than willing to raise other issues. Justices Samuel Alito and Elena Kagan, both of whom concurred in the judgment only, complained that they wanted to see a narrower opinion. Justices Ketanji Brown Jackson and Sonia Sotomayor spent five pages blasting the New York State Rifle & Pistol Assn. v. Bruen test – on which modern 2nd Amendment jurisprudence turns – as a “failed… experiment” that should be overturned. Justice Clarence Thomas was expansive in a different direction, writing his own concurring opinion that all of 922(g) stretches the Commerce Clause too far: “Congress cannot regulate the possession of every thing that ever traveled across state lines.”
Hemani is a win for what Ohio State University law professor Doug Berman estimates to be the “few thousand people have been convicted and sentenced under 922(g)(3) in the last decade, and there could be many thousands more with such a conviction on their records. But, as just noted, Hemani does not necessarily make all these convictions suspect unless the case facts are similar to those in Ali Hemani’s prosecution.”
Hemani focused on the danger that a controlled substance abuser poses to others, an analysis that suggests a similar “danger” analysis might be used to hold that 922(g)(1) is unconstitutional as applied to nonviolent felons. But for those who hoped the case would springboard the Court into holding that 922(g)(1) was flawed, Hemani falls short.
US v Hemani, Case No. 24-1234, 2026 US LEXIS 2559 (June 18, 2026)
Sentencing Law and Policy, How many (thousands of) 922(g)(3) convictions are now suspect after Hemani? (June 18, 2026)
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BOP ADMIN REMEDY PROCEDURE – THE HOUSE ALWAYS WINS
A study by The Marshall Project and NPR published last week reported that the BOP’s grievance system – the BP-9, BP-10 and BP-11 – has inmate failure baked in.
Reviewing BOP remedy filings for 2023, the latest year for which data are available, the study found that out of about 40,000 grievances filed in Fiscal Year 2023, 75 pct were rejected for being inconsistent with the BOP’s arcane procedural rules (too few copies of attachments provided, failure to enclose a copy of a lower-level denial, late filing). Of the 10,000 or so that made the procedural cut, only about 700 were granted.
Overall, the BOP’s grant rate is somewhere under 2 pct of the remedies filed. Like shooting craps with the house winning 49 out of 50 times.
The TMP/NPR report noted that the grievance process has gotten much worse in the past 20 years. The rate at which the Bureau granted grievances has fallen from just under 7 pct in 2000 to its current rate, a decline of 70 pct in 20 years.
“The program is intended to solve problems and be responsive to issues raised by inmates,” Randilee Giamusso, a BOP representative, wrote in an email to TMP/NPR, “and does not prevent inmates from pursuing litigation.”
Of course it doesn’t. Except that the Prison Litigation Reform Act, passed in 1995, requires prisoners to complete all available administrative remedies as a condition of bringing suit. Other litigation, such as a petition for habeas corpus under 28 U.S.C. § 2241, requires exhaustion but excuses it where it would be futile.
Contrary to Ms. Giamusso’s assurance, in Fiscal Year 2025 alone, over 1,770 federal court cases grappled with failure-to-exhaust-remedies claims raised by the government. In other words, the government uses failure-to-exhaust as a bludgeon to get inmate lawsuits dismissed on a regular basis.
The TMP/NPR study followed the medical travails of inmate Terri Mollica, whose serious condition was identified by physicians but needed surgery was withheld, and whose BP-9 was not answered for over 6 months. Mollica’s final level internal remedy to the BOP Central Office was never logged as received, leading to her lawsuit against the BOP being thrown out. The 11th Circuit reinstated it after attorneys for the MacArthur Justice Center proved that she had tried to follow every step, but officials had failed to record her final appeal.
The report noted that the BOP’s approval rate “appears to be far below that of many state corrections departments, the news organizations found, though departments track such data in different ways. In California, officials granted roughly 15 pct of grievances and appeals in 2023… In Georgia, nearly 13 pct of cases were “granted, partially granted or resolved” that year, according to the department. In Texas state prisons, over 4 pct of complaints and appeals processed that year were “resolved in inmate favor” — a very small portion, but about twice the bureau’s rate.
Ms. Giamusso told TMP/NPR that the agency is working on “updates and additional guidance” on the remedy procedure. However, nothing to that effect has been proposed in the Federal Register, suggesting that a fix – if one is being planned at all – is years away.
NPR, ‘Rejected’: How federal prisons stonewall grievances and deny care for years (June 17, 2026)
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SCOTUS HOLDS APPELLATE WAIVERS AREN’T ALWAYS IRONCLAD
Just about the last thing any federal defendant is concerned with when signing a plea agreement is the fine print in which she waives the right to appeal or file a post-conviction 28 USC 2255 petition or a related motion. The agreed-upon sentence, Guideline factors, dismissed counts, and the US Attorney’s promise not to prosecute for anything else are the important questions. Technicalities like waiving appeal and collateral rights, restitution, supervised release… those provisions are usually just so much noise to a defendant who is negotiating away freedom while trying to minimize the pain.
The appellate and collateral attack waiver is not important.
Until it is.
That is, until the parties’ agreement that the Guideline sentence should be between 33 and 41 months runs into a judge who thinks the statutory maximum sentence of 20 years is more appropriate. The right to appeal such craziness then becomes vitally important. And that’s when the government waves the waiver at the court of appeals, demanding that your appeal be tossed because, after all, you agreed not to appeal.
In 2024, Munson Hunter III signed an agreement to plead guilty to aiding and abetting wire fraud that included the standard appeal waiver. The government dismissed nine other counts as part of the deal, which included an agreement to a 51-month sentence.
At sentencing, the court went with the sentence. However, concerned that Munson had some mental issues, the judge added a condition that he get mental health treatment while on supervised release and take whatever meds the mental health provider prescribed.
Munson was uninterested in spending his supervised release in a drug-induced stupor and tried to appeal on 5th Amendment grounds. The 5th Circuit ruled that his appeal waiver barred him from doing so.
Last week, the Supreme Court reversed the 5th Circuit. Writing for the majority, Justice Elena Kagan explained that “an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.”
The result was not a watershed moment. After all, eight Circuits already recognize the “miscarriage of justice” exception. But the opinion is notable for the explanation of what constitutes a “miscarriage of justice,” which up to now has been largely an “I can’t define it, but I know it when I see it” standard.
The 8-1 opinion described “miscarriage of justice” as being where
the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can…The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.
Armed with this definition, the well-prepared defendant in many cases may be able to make a compelling showing to get around an appeal waiver. Expect that many cases will follow that include detailed arguments to set aside appeal and post-conviction waivers.
Hunter v US, Case No. 24-1063, 2026 US LEXIS 2558 (June 18, 2026)
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