United States v. Kendall Alston

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-30035 Plaintiff-Appellee, D.C. No. 2:22-cr-00066-LK-1 v. MEMORANDUM* KENDALL ALSTON, Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding Argued and Submitted July 10, 2024 Submission Vacated July 19, 2024 Resubmitted June 16, 2025 Filed June 16, 2025 Seattle, Washington Before: McKEOWN, CLIFTON, and BRESS, Circuit Judges. Kendall Alston appeals from his convictions for possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of a drug- trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). We have jurisdiction under 28 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. U.S.C. § 1291. Submission of this case was vacated on July 19, 2024, pending resolution of the en banc proceedings in United States v. Duarte, 2025 WL 1352411 (9th Cir. May 9, 2025). We affirm. Alston’s argument that the district court erred by failing to instruct the jury on the meaning of “in furtherance of” is foreclosed by circuit precedent. United States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007). The updates to Ninth Circuit Model Instruction 14.23 do not affect that conclusion, as model instructions “are not authoritative legal pronouncements.” United States v. Tuan Ngoc Luong, 965 F.3d 973, 983 (9th Cir. 2020). Alston’s challenge to § 922(g)(1) is likewise unavailing. He concedes that United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir. 2010), precludes his argument, contending only that Vongxay was abrogated by New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). We recently held in Duarte that the U.S. Supreme Court’s decisions in Bruen and United States v. Rahimi, 602 U.S. 680 (2024), “support Vongxay’s holding that § 922(g)(1) constitutionally prohibits the possession of firearms by felons.” Duarte, 2025 WL 1352411 at *5. And we upheld § 922(g)(1)’s constitutionality under the Second Amendment as applied to non-violent felons. Id. at *3, *6, *14. Accordingly, Alston’s Second Amendment challenge fails under Duarte. AFFIRMED. 2