United States v. Bennett ( 2023 )

Case: 23-10081 Document: 00516936006 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10081
Summary Calendar FILED
____________ October 18, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gary Von Bennett,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-427-1
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Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Gary Von Bennett 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 108 months of imprisonment and three years
of supervised release. Bennett contends that § 922(g)(1) is unconstitutional
because it exceeds Congress’s power under the Commerce Clause and that
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10081 Document: 00516936006 Page: 2 Date Filed: 10/18/2023
No. 23-10081
§ 922(g) should be construed to require either recent movement of a firearm
across state lines or movement of a firearm across state lines in response to
the defendant’s conduct. However, he correctly concedes that these
arguments are foreclosed by Scarborough v. United States, 431 U.S. 563 (1977),
and United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013), and he merely
raises these issues to preserve them for further review. The Government has
moved for summary affirmance, or, alternatively, for an extension of time to
file a brief.
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 Government’s alternative
motion for an extension of time to file a brief is DENIED, and the district
court’s judgment is AFFIRMED.
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