United States v. Jones ( 2023 )

Case: 23-10198 Document: 00516976169 Page: 1 Date Filed: 11/21/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10198
FILED
November 21, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Derrick Durrell Jones,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-446-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Derrick Durrell Jones pleaded guilty, without a written plea agree-
ment, to possession of a firearm as a convicted felon. See 18 U.S.C.
§ 922(g)(1). On appeal, Jones argues that § 922(g)(1) is unconstitutional be-
cause it (1) violates the Commerce Clause and (2) violates the Second
Amendment. As he concedes, he did not preserve these arguments in the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10198 Document: 00516976169 Page: 2 Date Filed: 11/21/2023
No. 23-10198
district court. Thus, our review is for plain error only. See United States v.
Howard, 766 F.3d 414, 419 (5th Cir. 2014) (reviewing unpreserved constitu-
tional challenge to a federal statute for plain error). To demonstrate plain
error, Jones must show a clear or obvious error that affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so,
this court may correct the error but should do so only if it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id. (in-
ternal quotation marks, brackets, and citation omitted).
I.
Jones first argues that § 922(g)(1) is unconstitutional on its face and
as applied to him because it exceeds Congress’s authority under the Com-
merce Clause. He asserts that Congress’s commerce power does not support
the “long-accepted interpretation of § 922(g)’s nexus element,” and that the
government should be required “to prove more than the firearm’s past mo-
ments in commerce.” However, he acknowledges that this court previously
has rejected Commerce Clause challenges to § 922(g)(1). See United States
v. Alcantar, 733 F.3d 143 (5th Cir. 2013).
In Alcantar, 733 F.3d at 145, this court recognized that it has “consist-
ently upheld the constitutionality of § 922(g)(1),” even after United States v.
Lopez, 514 U.S. 549 (1995). This court’s rule of orderliness compels it to
follow existing circuit precedent unless the Supreme Court “unequivocally”
overrules it. United States v. Petras, 879 F.3d 155, 164 (5th Cir. 2018) (internal
quotation marks and citation omitted). None of the cases cited by Jones ex-
pressly overrule Alcantar. Accordingly, this argument is foreclosed. See
United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020) (relying on Al-
cantar to hold that Commerce Clause challenge to § 922(g) conviction was
foreclosed).
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No. 23-10198
II.
Jones also argues that § 922(g)(1) violates the Second Amendment in
light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n,
Inc. v. Bruen, 142 S. Ct. 2111 (2022), which set forth a new test for assessing
the constitutionality of a statute under the Second Amendment, and that the
district court’s failure to advise him of its unconstitutionality violated
Federal Rule of Criminal Procedure 11. The Bruen Court stated that “[w]hen
the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” 142 S. Ct. at 2129–30.
“The government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.” Id.
at 2130. Only if the Government meets its burden “may a court conclude
that the individual’s conduct falls outside the Second Amendment’s
unqualified command.” Id. (internal quotation marks and citation omitted).
Before Bruen, this court held that § 922(g)(1) does not violate the
Second Amendment. See, e.g., United States v. Darrington, 351 F.3d 632,
633-34 (5th Cir. 2003). And in his concurring opinion in Bruen, Justice
Kavanaugh—quoting District of Columbia v. Heller, 554 U.S. 570, 626–27
(2008), and McDonald v. Chicago, 561 U.S. 742, 786 (2010)—stated:
“[N]othing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill.”
Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (internal quotation
marks omitted).
This court has not yet addressed the impact of Bruen on the
constitutionality of § 922(g)(1) in a case in which the issue was preserved in
the district court. In the plain error context, “a lack of binding authority is
often dispositive.” United States v. McGavitt, 28 F.4th 571, 577 (5th Cir.
2002) (internal quotation marks and citation omitted), cert. denied, 143 S. Ct.
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282 (2022). While Jones need not show that his specific challenge has been
addressed in a prior decision, “he must at least show error in the
straightforward applications of existing cases.” United States v. Cabello, 33
F.4th 281, 291 (5th Cir. 2022) (internal quotation marks and citation
omitted). Arguments that require the extension of existing precedent cannot
meet the plain error standard. Id.Additionally, any error is not plain if “this circuit’s law remains
unsettled and the other federal circuits have reached divergent conclusions.”
United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). The Third and
Eighth Circuits have considered the constitutionality of § 922(g)(1) after
Bruen and reached conflicting results. See Range v. Att’y Gen., 69 F.4th 96,
98–99 (3d Cir. 2023) (en banc) (rejecting the Government’s argument that
statements in Heller, McDonald, and Bruen seemingly approved of felon
disarmament and holding that the defendant remained one of the people
protected by the Second Amendment given his particular felony conviction
and had a right to purchase a hunting rifle and shotgun for self-defense);
United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023) (holding that
“[t]he longstanding prohibition on possession of firearms by felons is
constitutional”).
Given the absence of binding precedent holding that § 922(g)(1) is un-
constitutional, and that it is unclear that Bruen dictates such a result, we have
rejected plain-error challenges to § 922(g)(1) under Bruen in several un-
published opinions. See, e.g., United States v. Roy, No. 22-10677, 2023 WL
3073266 (5th Cir. Apr. 25, 2023) (unpublished), cert. denied, No. 23-5188,
2023 WL 6378839 (U.S. Oct. 2, 2023); United States v. Hickcox, No. 22-
50365, 2023 WL 3075054 (5th Cir. Apr. 25, 2023) (unpublished), cert. denied,
No. 23-5130, 2023 WL 6378730 (U.S. Oct. 2, 2023); United States v. Pickett,
No. 22-11006, 2023 WL 3193281, 1 (5th Cir. May 2, 2023) (unpublished);
United States v. Smith, No. 22-10795, 2023 WL 5814936 (5th Cir. Sept. 8,
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2023) (unpublished); United States v. Racliff, No. 22-10409, 2023 WL
5972049 (5th Cir. Sept. 14, 2023) (unpublished); United States
v. EtchisonBrown, No. 22-10892, 2023 WL 7381451 (5th Cir. Nov. 7, 2023)
(unpublished). The different conclusions reached by the Third and Eighth
Circuits noted above further support the conclusion that this unsettled ques-
tion is not clear or obvious error. See Salinas, 480 F.3d at 759. Accordingly,
we conclude that Jones has failed to demonstrate that the district court’s ap-
plication of § 922(g)(1) constitutes plain error.
AFFIRMED.
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