United States v. Oscar Mora ( 2018 )

Case: 18-50118 Document: 00514642926 Page: 1 Date Filed: 09/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-50118
Fifth Circuit
FILED
Summary Calendar September 14, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
OSCAR RAUL MORA, Also Known as Raul Ramirez,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 3:17-CR-1092-1
Before SMITH, ELROD, and WILLETT, Circuit Judges.
PER CURIAM: *
Oscar Mora appeals his conviction of possession of a firearm by a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50118 Document: 00514642926 Page: 2 Date Filed: 09/14/2018
No. 18-50118
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Relying on United States
v. Lopez, 514 U.S. 549 (1995), and National Federation of Independent Business
v. Sebelius (NFIB), 567 U.S. 519 (2012), Mora urges that § 922(g)(1) unconsti-
tutionally extends federal control to non-commercial possession of a fire-
arm. Mora concedes, however, that his position is foreclosed by circuit prece-
dent, and he raises the issue to preserve it for Supreme Court review.
The government has filed an unopposed motion for summary affirmance,
requesting alternatively an extension of time to file its brief. The government
asserts that the parties agree that, under circuit precedent, Mora’s challenge
to the constitutionality of § 922(g) is foreclosed. Summary affirmance is proper
where, among other instances, “the position of one of the parties is clearly right
as a matter of law so that there can be no substantial question as to the
outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969).
“This court has repeatedly emphasized that the constitutionality of
§ 922(g)(1) is not open to question.” United States v. de Leon, 170 F.3d 494,
499 (5th Cir. 1999); see also United States v. Alcantar, 733 F.3d 143, 146 (5th
Cir. 2013). In United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996), we
rejected a challenge to the constitutionality of § 922(g)(1), finding that neither
the holding nor the reasoning in Lopez constitutionally invalidates § 922(g)(1).
The motion for summary affirmance is GRANTED. The alternative
motion for an extension is DENIED. The judgment is AFFIRMED.
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