eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2023-06

United States v. Rodriguez ( 2023 )


Menu:
 
  • Case: 22-10896        Document: 00516789784             Page: 1      Date Filed: 06/16/2023
United States Court of Appeals
for the Fifth Circuit
____________                              United States Court of Appeals
Fifth Circuit
No. 22-10896
FILED
June 16, 2023
Summary Calendar
____________                                 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rene Rigoberto Rodriguez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-354-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Rene Rigoberto Rodriguez pleaded guilty to illegal receipt of a firearm
by a person under indictment, in violation of
    18 U.S.C. §§ 922
    (n) and
924(a)(1)(D). He maintains § 922(n) does not pass the historical test
provided in New York State Rifle & Pistol Ass’n v. Bruen,
    142 S. Ct. 2111 (2022)
    , and is therefore in violation of the Second Amendment. Because
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10896      Document: 00516789784           Page: 2     Date Filed: 06/16/2023
No. 22-10896
Rodriguez (as he concedes) did not raise this issue in district court, review is
only for plain error. E.g., United States v. Broussard,
    669 F.3d 537
    , 546 (5th
Cir. 2012).
Under that standard, Rodriguez 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, we have 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.
    An error is not clear or obvious where an issue is disputed or
unresolved, or where there is an absence of controlling authority. E.g., United
States v. Rodriguez-Parra,
    581 F.3d 227
    , 230–31 (5th Cir. 2009); see also
United States v. Fields,
    777 F.3d 799
    , 802 (5th Cir. 2015) (“In considering
whether an error is clear or obvious we look to the state of the law at the time
of appeal”. (citation omitted)). In an unpublished opinion, our court rejected
the argument that § 922(n) is clearly-or-obviously unconstitutional under
Bruen. See United States v. Avila, No. 22-50088,
    2022 WL 17832287
    , at *2
(5th Cir. 21 Dec. 2022), petition for cert. filed (20 Apr. 2023) (No. 22-7352).
There is no binding precedent holding § 922(n) unconstitutional, and
it is not clear Bruen dictates such a result. Id. Accordingly, Rodriguez is
unable to demonstrate the requisite clear-or-obvious error. E.g., Rodriguez-
Parra,
    581 F.3d at 
    230–31; United States v. Guerrero-Robledo,
    565 F.3d 940
    ,
946 (5th Cir. 2009) (“It certainly is not plain error for the district court to
rely on an unpublished opinion that is squarely on point.”).
AFFIRMED.
2