United States v. Diamond Moody , 575 F. App'x 223 ( 2014 )

Case: 13-10707 Document: 00512689985 Page: 1 Date Filed: 07/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10707
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 8, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DIAMOND CHARLES MOODY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-339-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Diamond Charles Moody appeals his conviction of being a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). Relying on National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)
(National Federation), he contends that § 922(g)(1) exceeds Congress’s power
under the Commerce Clause. He argues that § 922(g)(1) is unconstitutional as
applied because his factual resume did not state that his possession of the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10707 Document: 00512689985 Page: 2 Date Filed: 07/08/2014
No. 13-10707
firearm was an economic activity and failed to reflect that he was engaged in
the relevant market at the time of the regulated conduct. Further, he contends
that § 922(g)(1) is facially unconstitutional because National Federation
interpreted the Commerce Clause to mandate that “Congress may regulate
only ongoing economic activity,” and his possession of a firearm purchased
many years ago does not qualify. Moody raises these arguments to preserve
them for further review. The Government moves for summary affirmance, or
in the alternative, for an extension of time to file an appellee’s brief.
In United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), and
decisions following, this court held that § 922(g)(1) was a valid exercise of
Congress’s authority under the Commerce Clause. See United States v.
Alcantar, 733 F.3d 143, 145 (5th Cir. 2013), cert. denied, 134 S. Ct. 1570 (2014).
In Alcantar, we determined that National Federation did not overrule this
court’s precedent upholding § 922(g)(1). See id. at 146. Whether our review is
de novo or for plain error, Moody’s challenge to the constitutionality of §
922(g)(1) is foreclosed. See id. at 146 & n.4.
Therefore, we GRANT the Government’s motion for summary
affirmance, DENY its alternative motion for an extension of time to file an
appellee’s brief, and AFFIRM Moody’s conviction.
2