United States v. Mack ( 2023 )

Case: 22-10719 Document: 00516640391 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10719
Summary Calendar FILED
____________ February 9, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Larry Carl Mack,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-385-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges
Per Curiam: *
Larry Carl Mack pleaded guilty to one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
He appeals and, relying on National Federation of Independent Business et al. v.
Sebelius et al., 567 U.S. 519 (2012), argues for the first time that § 922(g)(1)
exceeds the scope of Congress’s power under the Commerce Clause and is
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10719 Document: 00516640391 Page: 2 Date Filed: 02/09/2023
No. 22-10719
thus unconstitutional. The Government has filed an unopposed motion for
summary affirmance and an alternative request for an extension of time to file
its brief.
Mack correctly concedes that his arguments challenging the
constitutionality of § 922(g)(1) are foreclosed. See United States v. Alcantar,
733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513,
518 (5th Cir. 2001); United States v. De Leon, 170 F.3d 494, 499 (5th Cir.
1999). He raises the arguments to preserve them for further review.
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion
for summary affirmance is GRANTED, the alternative motion for an
extension of time to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.
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