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United States v. Jose Gonzalez ( 2019 )


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  •      Case: 18-11306      Document: 00515020392         Page: 1    Date Filed: 07/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-11306                             July 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE BRYAN GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-90-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jose Bryan Gonzalez appeals his guilty plea conviction for unlawfully
receiving a firearm that has been shipped in interstate commerce while under
indictment for a crime punishable by imprisonment for more than one year, in
violation of 18 U.S.C. § 922(n) and punishable under 18 U.S.C. § 924(a)(1)(D).
Gonzalez admitted to the factual resume, which stated that he received a
Ruger pistol that had been shipped or transported in interstate commerce.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-11306     Document: 00515020392     Page: 2   Date Filed: 07/03/2019
No. 18-11306
He contends that his guilty plea was not supported by a sufficient factual
basis because his mere receipt of a firearm that had at some point been in
interstate commerce without proof that he caused or knew of the interstate
movement failed to establish a violation of § 922(n) that is punishable under
§ 924(a)(1)(D). Gonzalez relies on Bond v. United States,
    572 U.S. 844 
    (2014),
and the word “willfully” in § 924(a)(1)(D).        The Government moves for
summary affirmance or, alternatively, for an extension of time to file a brief,
asserting that Gonzalez’s argument is foreclosed by United States v. Fitzhugh,
    984 F.2d 143 
    (5th Cir. 1993), in which we held that “a convicted felon’s
possession of a firearm having a past connection to interstate commerce
violates [18 U.S.C.] § 922(g)(1).”
    Id. at 146. 
      Gonzalez concedes that his
argument is effectively foreclosed but raises it to preserve the issue for further
review.
Summary affirmance is not appropriate in this case because the parties
cite no binding authority addressing whether Fitzhugh applies to § 922(n). See
United States v. Houston,
    625 F.3d 871
    , 873 n.2 (5th Cir. 2010). However, we
may affirm the conviction without further briefing because, as Gonzalez
concedes, no binding authority presently supports his reading of § 922(n) and
§ 924(a)(1)(D). Moreover, we rejected such a reading of somewhat similar
statutory language in Fitzhugh and in United States v. Dancy,
    861 F.2d 77
    , 80-
82 (5th Cir. 1988). See United States v. Salinas,
    480 F.3d 750
    , 759 (5th Cir.
2007); see also United States v. Ponce-Flores,
    900 F.3d 215
    , 218-19 (5th Cir.
2018). Gonzalez thus fails to show that the district court committed clear or
obvious error. See United States v. Trejo,
    610 F.3d 308
    , 313 (5th Cir. 2010).
The Government’s motions for summary affirmance and, alternatively,
for an extension of time to file a brief are DENIED.           The judgment is
AFFIRMED.
2