United States v. Pickett ( 2023 )

Case: 22-11006 Document: 00516734148 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-11006
Summary Calendar FILED
____________ May 2, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Antonio Deshun Pickett,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-435-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Antonio Deshun Pickett pleaded guilty to possession of a firearm after
a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and former
924(a)(2) (recodified as amended at 18 U.S.C. § 924(a)(8)). The district
court sentenced him to 33-months’ imprisonment and three-years’
supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-11006 Document: 00516734148 Page: 2 Date Filed: 05/02/2023
No. 22-11006
Pickett claims § 922(g)(1) violates the Second Amendment. He did
raise a constitutional challenge to § 922(g) in district court; but, that
challenge was based on the Commerce Clause, not the Second Amendment.
Therefore, because Pickett did not raise the latter issue in district court (as
he concedes), review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Pickett must show a
forfeited plain error (clear-or-obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, our court has the
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id. (citation omitted).
As noted supra, § 922(g)(1) proscribes, inter alia, possession of a
firearm after a felony conviction. Pickett contends § 922(g)(1) does not pass
the historical test announced by the Supreme Court in New York State Rifle
& Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022) (providing “government
must demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation”), and is therefore unconstitutional.
As reflected above in the definition of a plain error, an error is not clear
or obvious where an issue is disputed or unresolved, or where there is an
absence of controlling authority. See United States v. Rodriguez-Parra, 581
F.3d 227, 230–31 (5th Cir. 2009). In fact, “[e]ven where the argument
requires only extending authoritative precedent, the failure of the district
court [to do so] cannot be plain error”. Wallace v. Mississippi, 43 F.4th 482,
500 (5th Cir. 2022) (citation omitted). Because there is no binding precedent
holding that § 922(g)(1) is unconstitutional and it is not clear that Bruen
dictates such a conclusion, Pickett is unable to demonstrate the requisite
clear-or-obvious error. See Rodriguez-Parra, 581 F.3d at 230–31; see also
United States v. Hickcox, No. 22-50365, 2023 WL 3075054, at *1 (5th Cir.
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Case: 22-11006 Document: 00516734148 Page: 3 Date Filed: 05/02/2023
No. 22-11006
2023) (unpublished) (in considering constitutional challenge to § 922(g)(1)
based on Bruen, holding no plain error because lack of binding precedent);
United States v. Avila, No. 22-50088, 2022 WL 17832287, at *1–2 (5th Cir.
2022) (unpublished) (same for challenge to § 922(n)).
AFFIRMED.
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