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United States v. Ramirez-Moreno ( 2023 )


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  • Case: 22-11246         Document: 00516843663             Page: 1      Date Filed: 08/02/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-11246
Summary Calendar                                  FILED
____________                                 August 2, 2023
Lyle W. Cayce
United States of America,                                                           Clerk
Plaintiff—Appellee,
versus
Leopoldo Ramirez-Moreno,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-258-1
______________________________
Before Jones, Smith, and Dennis, Circuit Judges.
Per Curiam: *
Leopoldo Ramirez-Moreno pleaded guilty, pursuant to a written plea
agreement, to one count of possession of a firearm by an alien illegally present
in the United States after removal, in violation of
    18 U.S.C. § 922
    (g)(5). 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)
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-11246      Document: 00516843663          Page: 2   Date Filed: 08/02/2023
No. 22-11246
exceeds the scope of Congress’s power under the Commerce Clause and is
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.
Ramirez-Moreno 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 affirmance 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.
2