United States v. Fulwiler ( 2023 )

Case: 23-30152 Document: 00516946913 Page: 1 Date Filed: 10/27/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30152 FILED
October 27, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Leslie Fulwiler,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:22-CR-130-1
______________________________
Before Haynes, Graves, and Higginson, Circuit Judges.
Per Curiam: *
Leslie Fulwiler pleaded guilty to one count of possession of firearms
by a convicted felon under 18 U.S.C. § 922(g)(1). In accordance with the
plea agreement, the remaining count of his indictment was dismissed. The
district court sentenced him above his guidelines range to 60 months of im-
prisonment, to run concurrently to any sentence imposed for a pending,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-30152
related state charge. The district court also imposed three years of super-
vised release. Fulwiler filed a timely notice of appeal.
On appeal, Fulwiler raises two issues. The first one is a challenge to
his conviction on the ground that § 922(g)(1) violates the Second
Amendment pursuant to New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
142 S. Ct. 2111 (2022). He admits that he failed to raise this argument to the
district court, accordingly, we review this challenge under plain error. Under
the plain error standard, Fulwiler must show a forfeited error that is clear or
obvious and affected his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court should exercise
its discretion to correct the error if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1906 (2018).
He appears to be making a facial challenge to § 922(g)(1). Since Bruen,
we have not ruled on a facial or as-applied challenge to § 922(g)(1) in our
circuit, and no circuit has granted a facial challenge, though they have split
on as-applied challenges. Compare Range v. Att’y Gen., 69 F.4th 96, 98, 106
(3d Cir. 2023) (en banc) (finding in favor of the defendant in a “narrow”
decision on an as-applied constitutional challenge “only as applied to him”)
with United States v. Jackson, 69 F.4th 495, 501–02 (8th Cir. 2023) (denying
an as-applied challenged by a “non-violent” drug felon); Vincent v. Garland,
80 F.4th 1197, 1202 (10th Cir. 2023) (following its pre-Bruen precedent that
“upheld the constitutionality of the federal ban for any convicted felon’s
possession of a firearm” in the context of a challenge based on non-violent
felons); see also United States v. Cunningham, 70 F.4th 502, 506 (8th Cir.
2023) (“The longstanding prohibition on possession of firearms by felons is
constitutional, and the district court properly denied the motion to
dismiss.”); Atkinson v. Garland, 70 F.4th 1018, 1019–20 (7th Cir. 2023)
(remanding to the district court to “undertake the Bruen analysis in the first
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instance”). As a result of this lack of clear or obvious error, our court has
repeatedly rejected plain error challenges to § 922(g)(1) under Bruen in
recent unpublished opinions. See, e.g., United States v. Roy, No. 22-10677,
2023 WL 3073266, at *1 (5th Cir. Apr. 25, 2023) (unpublished) (per curiam),
cert. denied, No. 23-5188, 2023 WL 6378839 (U.S. Oct. 2, 2023); United
States v. Pickett, No. 22-11006, 2023 WL 3193281, at *1 (5th Cir. May 2, 2023)
(unpublished) (per curiam); United States v. Washington, No. 22-10574, 2023
WL 5275013, at *1 (5th Cir. Aug. 16, 2023) (unpublished) (per curiam);
United States v. Smith, No. 22-10795, 2023 WL 5814936, at *1–3 (5th Cir.
Sep. 8, 2023) (unpublished) (per curiam); United States v. Racliff, No. 22-
10409, 2023 WL 5972049, at *1 (5th Cir. Sep. 14, 2023) (unpublished) (per
curiam). We join in those decisions and find a lack of clear of obvious error.
Accordingly, we affirm the conviction.
Fulwiler’s other appellate argument is a challenge to his sentence. We
conclude that he preserved his substantive reasonableness challenge by
advocating at sentencing for a sentence below the guidelines range. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020).
Accordingly, the substantive reasonableness of his sentence is reviewed for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
district court abuses its discretion in imposing an above-guidelines sentence
if the sentence “does not account for a factor that should have received
significant weight, gives significant weight to an irrelevant or improper
factor, or represents a clear error of judgment in balancing sentencing
factors.” United States v. Lavalais, 960 F.3d 180, 189 (5th Cir. 2020).
Fulwiler argues that his above-guidelines sentence, 60 months, which
is 19 months above the top of his guidelines range, is substantively
unreasonable. Our “review for substantive reasonableness is highly
deferential, because the sentencing court is in a better position to find facts
and judge their import under the § 3553(a) factors with respect to a particular
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defendant.” Lavalais, 960 F.3d at 189 (quotation omitted). The district
court’s comments at sentencing reflect that it considered Fulwiler’s
sentencing memorandum, arguments for a lesser sentence, and the
mitigating facts he raised. Nonetheless, the district court was more
persuaded by Fulwiler’s criminal history and likelihood to recidivate, factors
that the district court was permitted to consider. See Lavalais, 960 F.3d at
189. Giving due deference to the district court’s sentencing decision, we
conclude that Fulwiler has failed to show that his sentence is substantively
unreasonable. Accordingly, we affirm his sentence.
AFFIRMED. 1
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1
The motion to place appeal in abeyance is denied as moot.
4