8th Circuit reverses part of a gun conviction, ruling the district court failed to resolve…
United States v. Boru Wako, Jr.
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8th Circuit reverses part of a gun conviction, ruling the district court failed to resolve a key Second Amendment challenge to the law banning firearms for people under felony indictment.
Why it matters
The Eighth Circuit reversed the district court's handling of Boru Wako Jr.'s challenge to the federal law making it illegal for someone under felony indictment to receive a firearm. The district court had put that constitutional challenge on hold until after trial but then never returned to it, which the appeals court found was an error requiring a remand. The court did not resolve all of Wako's other appeals in the excerpted text.
Who it affects
This ruling directly affects people who are charged under the federal law prohibiting receipt of a firearm while under felony indictment, as it confirms that courts must resolve as-applied Second Amendment challenges to that law rather than leaving them unresolved. It also matters to federal prosecutors and district courts in the Eighth Circuit, who must ensure deferred constitutional challenges are actually decided.
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Decision issued Jul 20, 2026
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- Decision issued Jul 20, 2026Published opinion
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Jul 20, 2026 · Published opinion
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Boru Wako Jr. was convicted by a jury on two federal gun charges: being a felon in possession of a firearm under 18 U.S.C. Section 922(g)(1), and illegally receiving a firearm while under indictment under 18 U.S.C. Section 922(n). The charges arose from an incident in Sioux Falls, South Dakota, where officers found a handgun in a vehicle Wako had been driving, and DNA testing linked Wako to the firearm. He was sentenced to 84 months in prison. Before trial, Wako challenged both charges as violations of his Second Amendment rights. He argued as to the felon-in-possession count that he did not qualify as a felon under South Dakota law, but the district court rejected that argument, finding a 2022 guilty verdict for eluding was sufficient. As to the indictment-based charge under Section 922(n), Wako raised both a facial challenge, arguing the law is unconstitutional in all cases, and an as-applied challenge, arguing it was unconstitutional as used against him specifically. The district court rejected the facial challenge, citing Eighth Circuit precedent allowing status-based firearm restrictions for people who deviate from legal norms or pose a risk of dangerousness. However, the district court said the as-applied challenge needed a fuller factual record and held it in abeyance until after trial. After the guilty verdict, the district court never returned to that question. The Eighth Circuit found that failure to be reversible error. Because the district court promised to rule on the as-applied Second Amendment challenge to Section 922(n) after trial but did not do so, the appeals court reversed the denial of that motion and remanded the case for further proceedings. The excerpted text does not resolve Wako's other arguments about the excluded witness affidavit, the sufficiency of the evidence, or his sentencing claims, as those appear in portions of the opinion beyond what was provided. The case signals that courts must actually resolve pending constitutional challenges they defer until after trial, and that as-applied Second Amendment challenges to Section 922(n), the law covering people under indictment, remain open questions that require careful factual analysis.
CITATION AND RECORD
Record source: CourtListener
United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-2863 ___________________________ United States of America Plaintiff - Appellee v. Boru Guye Wako, Jr. Defendant - Appellant ____________ Appeal from United States District Court for the District of South Dakota - Southern ____________ Submitted: March 19, 2026 Filed: July 20, 2026 ____________ Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges. ____________ SHEPHERD, Circuit Judge. After a jury trial, Boru Wako, Jr., was found guilty of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of illegal receipt of a firearm by a person under indictment, in violation of 18 U.S.C. § 922(n). Prior to trial, Wako sought dismissal of both counts of the indictment on the basis that the charges violated his Second Amendment rights. In one motion, which the district court denied, Wako lodged an as-applied challenge to § 922(g)(1). In a separate motion, Wako raised a facial and as-applied challenge to § 922(n). The district court denied the facial challenge on the merits but determined that Wako’s as-applied challenge to § 922(n) must be held in abeyance until after trial. After the jury returned a guilty verdict on both counts, the district court sentenced Wako to 84 months’ imprisonment, followed by 3 years of supervised release. On appeal, Wako challenges the denials of his motions to dismiss the indictment, the district court’s evidentiary ruling to exclude the affidavit of an alleged witness to the offense, the denial of his motion for judgment of acquittal based on the sufficiency of the evidence, and his sentence. Having jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s denial of the motion to dismiss Wako’s as-applied challenge to the § 922(n) count and remand. I. Wako’s offenses of conviction arise from an attempted traffic stop in Sioux Falls, South Dakota. When officers attempted to initiate a traffic stop of a vehicle that had been reported stolen, the vehicle sped away. Officers did not initiate a pursuit and instead remained in the area, where they eventually located the vehicle parked in an alley. The officers pulled up behind the vehicle and observed that the driver’s door was open, with the driver, later identified as Wako, reaching toward a storage area in the door. When Wako saw the officers pull up behind him, he fled on foot, and the officers engaged in a pursuit. After the foot pursuit was unsuccessful, the officers returned to the vehicle, where they observed a handgun in the driver’s side door of the vehicle and a machete sitting on the driver’s seat. The firearm was later sent for DNA testing; Wako’s DNA appeared on the barrel of the firearm. Wako was subsequently indicted on one count of being a felon in possession of a firearm and one count of illegal receipt of a firearm by a person under indictment. As noted, before trial, Wako filed separate motions to dismiss both counts of the indictment; the district court denied both motions. First, as to the § 922(g)(1) count for being a felon in possession of a firearm, Wako asserted that he was not a -2- felon as defined under South Dakota law, so he was not subject to § 922(g)(1)’s firearm prohibition. The district court rejected this argument, concluding that a guilty verdict entered against Wako in 2022 for eluding was sufficient to put him within the purview of § 922(g)(1), even if he had not yet been sentenced. Second, as to the § 922(n) count for being an illegal recipient of a firearm as a person under indictment, Wako asserted that the statute is unconstitutional both facially and as applied to him. The district court rejected Wako’s facial challenge, relying, in part, on this Court’s decision in United States v. Jackson, where we explained that “legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” including those “who deviated from legal norms or persons who presented an unacceptable risk of dangerousness.” 110 F.4th 1120, 1129 (8th Cir. 2024), cert. denied, 145 S. Ct. 2708 (2025). The district court concluded that “[t]hat rationale equally applies to § 922(n). Both provisions restrict individuals’ access to firearms who have deviated from legal norms (in the view of a grand jury), and Congress enacted § 922(n) because, presumably, it believed that those under felony indictment present an unacceptable risk of dangerousness.” As to Wako’s as-applied challenge, the district court held the challenge in abeyance until after trial because of the undeveloped factual record. The district court explained that “[b]ecause Wako’s assertion will require an inquiry into the ‘facts surrounding the commission of the alleged offense,’ the court should not rule on Wako’s as-applied challenge without a ‘trial on the merits.’” Wako also filed a motion in limine seeking to introduce at trial an affidavit from an alleged witness to the offense conduct, who would provide information exonerating Wako by claiming that he was the driver of the vehicle and that the recovered firearm belonged to an individual other than Wako. Wako asserted that the affidavit was admissible under Rule 804(b)(3) of the Federal Rules of Evidence as a statement against interest, or under Rule 807, the residual hearsay exception. The district court denied the motion, concluding that the witness’s statement was not so contrary to his propriety or pecuniary interest that it qualified as a statement against interest and that, under the totality of the circumstances, it did not meet the credibility requirements. The case then proceeded to a two-day jury trial. At the -3- close of the Government’s case, Wako moved for judgment of acquittal based on the insufficiency of the evidence. The district court denied the motion, concluding that there was sufficient evidence to support the verdict, and that any questions were fact questions for the jury to resolve. Wako renewed his motion for judgment of acquittal at the close of all the evidence, but the district court again denied it. The jury then returned a guilty verdict on both counts. Despite the district court’s decision to hold Wako’s § 922(n) challenge in abeyance until after trial, it did not return to this inquiry post-trial. At sentencing, Wako sought a downward departure or variance, while the Government sought an upward departure or variance. The district court departed upward based on the underrepresentation of Wako’s criminal history, resulting in an adjusted United States Sentencing Guidelines range of 57 to 71 months’ imprisonment. The district court then varied upward and imposed a term of 84 months’ imprisonment, followed by 3 years of supervised release. This appeal follows, with Wako challenging the district court’s denial of his motions to dismiss the indictment, the district court’s evidentiary ruling regarding the affidavit of a purported witness, and the denial of his motion for judgment of acquittal. Wako also asserts that the district court procedurally erred in sentencing him and that his sentence is substantively unreasonable. II. Wako first challenges the district court’s denial of his moti
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