United States v. Racliff ( 2023 )

Case: 22-10409 Document: 00516895055 Page: 1 Date Filed: 09/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 14, 2023
No. 22-10409 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Devontae Nykel Racliff,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-417-1
______________________________
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam: *
Devontae Nykel Racliff pleaded guilty to possession of a firearm after
a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The district court sentenced him to 51 months of imprisonment and three
years of supervised release. Racliff argues that § 922(g)(1) is
unconstitutional and that the district court erred in enhancing his base
_____________________
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-10409 Document: 00516895055 Page: 2 Date Filed: 09/14/2023
No. 22-10409
offense level based upon its conclusion that his prior conviction for Texas
robbery constituted a crime of violence.
Because Racliff did not challenge the constitutionality of § 922(g)(1)
before the district court, we review only for plain error. See United States v.
Knowles, 29 F.3d 947, 950 (5th Cir. 1994). Racliff must therefore show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.First, Racliff argues that § 922(g)(1) is unconstitutional because it
exceeds Congress’s power under the Commerce Clause. This argument is
foreclosed. See United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999);
see also United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).
Second, Racliff asserts that the Supreme Court’s recent decision in
New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), suggests
that § 922(g)(1) is unconstitutional under the Second Amendment. An error
is not clear or obvious where an issue is disputed or unresolved, or where
there is an absence of controlling authority. 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) (internal quotation marks and citation omitted). Because
there is no binding precedent explicitly holding that § 922(g)(1) is
unconstitutional and because it is not clear that Bruen dictates such a result,
Racliff is unable to demonstrate an error that is clear or obvious.
See Rodriguez-Parra, 581 F.3d at 230-31; see also United States v. Avila,
No. 22-50088, 2022 WL 17832287, at *2 (5th Cir. Dec. 21, 2022).
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No. 22-10409
Lastly, Racliff argues that the district court erred by assigning an
enhanced base offense level under U.S.S.G. § 2K2.1(a)(4)(A), as his Texas
robbery conviction did not constitute a “crime of violence” per U.S.S.G.
§ 4B1.2(a). This court recently reaffirmed that Texas robbery is the
equivalent of the enumerated offense of robbery under § 4B1.2 and that it is
therefore a crime of violence for purposes of § 2K2.1(a)(4)(A). United States
v. Adair, 16 F. 4th 469, 470-71 (5th Cir. 2021), cert. denied, 142 S. Ct. 1215
(2022). Thus, Racliff’s argument on this point is foreclosed.
AFFIRMED.
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