United States v. Lujan ( 2023 )

Case: 23-10145 Document: 00516979614 Page: 1 Date Filed: 11/27/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10145
____________ FILED
November 27, 2023
United States of America, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
Eric Michael Lujan,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:22-CR-71-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Eric Michael Lujan appeals his 120-month sentence for possession of
a firearm after a felony conviction. We affirm.
I.
On May 27, 2022—three days after the horrific massacre at Robb
Elementary School in Uvalde, Texas—bystanders in Amarillo, Texas,
reported a man with a firearm walking near a daycare and asking about the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10145
number of children inside. When Amarillo Police Department officers
arrived at the scene, they did not find the suspect, but found a backpack
containing an AR-style semi-automatic rifle with a loaded magazine holding
21 rounds. Shortly thereafter, the officers identified Lujan as the suspect,
and he was arrested near the scene and charged with the unlawful carrying of
a weapon in a prohibited place.
Lujan had previously been convicted of at least two felony crimes of
violence: aggravated assault in 2009, carrying a sentence of five years
deferred probation that was eventually revoked; and aggravated assault with
a deadly weapon in 2011, with a five-year sentence. Accordingly, Lujan was
indicted in June 2022 on one count of possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924 (a)(2). He pled guilty in September 2022,
and the district court later accepted his guilty plea.
The presentence report (“PSR”) assessed a base offense level of 26
because Lujan’s offense involved a “semiautomatic firearm that is capable of
accepting a large capacity magazine” and based on Lujan’s prior convictions.
See U.S.S.G. § 2K2.1(a)(1). Adjusting downward for Lujan’s acceptance of
responsibility, Lujan’s total offense level was 23, and carried a potential
imprisonment range of 70 to 87 months. Lujan did not object to the PSR.
At sentencing, the district court considered an upward variance based
on the factors contained in 18 U.S.C. § 3553(a). Lujan’s counsel argued for
a within-guidelines sentence, stating that in 2017, Lujan was robbed and shot
nine times, exacerbating his pre-existing mental health issues and causing
Lujan to suffer post-traumatic stress disorder. Lujan’s counsel contended
that Lujan would not have committed the instant offense but for his mental
health issues. The district court acknowledged Lujan’s mental health issues,
but nonetheless concluded that a 120-month sentence was warranted based
on Lujan’s violent criminal history, the seriousness of the instant offense, and
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the need to protect the public. The court then imposed that sentence, and
further stated there was no indication that Lujan was eligible for a diminished
capacity downward departure under U.S.S.G. § 5K2.13.
Lujan appeals, raising three issues: (1) his sentence is procedurally
and substantively unreasonable because it fails to account for Lujan’s mental
health issues; (2) his guilty plea is invalid, and 18 U.S.C. § 922(g)(1)
unconstitutionally infringes upon Lujan’s Second Amendment rights; and
(3) in Texas, convictions for aggravated assault and aggravated assault with a
deadly weapon do not qualify as “crimes of violence” for sentence-
enhancement purposes.
II.
Lujan’s procedural unreasonableness, plea invalidity, and sentence-
enhancement arguments are either unpreserved or presented for the first
time on appeal and are thus reviewed only for plain error. To prevail, Lujan
must demonstrate a forfeited error that is clear or obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes that showing, this court has the discretion to correct the error
only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.Lujan’s substantive unreasonableness argument was preserved and is
thus reviewed for abuse of discretion. See United States v. Diehl, 775 F.3d
714, 724 (5th Cir. 2015). This review is highly deferential to the district court
because that court is in a better position to find facts and weigh their
importance with respect to a defendant. Id.III.
We turn first to Lujan’s contention that his sentence was procedurally
and substantively unreasonable. His challenges fall short.
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We undertake a two-step process in reviewing a criminal sentence, in
accordance with Gall v. United States, 552 U.S. 38, 51 (2007). At step one,
we consider whether the district court committed a “significant procedural
error,” such as “failing to adequately explain the chosen sentence.” Gall,
552 U.S. at 51. If a significant procedural error was committed, we must
remand for resentencing “unless the proponent of the sentence establishes
that the error ‘did not affect the district court’s selection of the sentence
imposed.’” United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). If there
was no significant procedural error, we continue to the second step and
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Gall, 552 U.S. at 51.
A.
Lujan asserts that his sentence is procedurally unreasonable because
the district court failed to consider his mental health history as a mitigating
factor that weighed against an upward variance and failed to explain why it
rejected his arguments for a lower sentence based on his mental health. This
contention misses the mark. The district court considered several § 3553(a)
factors individually, and specifically noted Lujan’s mental health history in
the context of weighing the sentencing factors. This was not procedural
error.
Lujan further argues the district court erroneously believed that his
mental health could not be a mitigating factor under § 3553(a) because he was
ineligible for an adjustment under U.S.S.G. § 5K2.13, which provides for a
downward departure if “the defendant committed the offense while suffering
from a significantly reduced mental capacity” and “the significantly reduced
mental capacity contributed substantially to the commission of the offense.”
Again, we discern no procedural error. The district court first noted Lujan’s
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mental health history in the context of its discussion of the § 3553(a) factors;
the court only mentioned § 5K2.13 after Lujan’s counsel stated that Lujan
would not have committed the offense but for his mental health.
Finally, in any event, Lujan has failed to demonstrate that any error
affected his substantial rights by showing that “but for the district court’s
error, [he] would have received a lower sentence.” United States v. Davis,
602 F.3d 643, 647 (5th Cir. 2010) (citation omitted). In imposing Lujan’s
120-month sentence, the district court stated that it was particularly
“focused on the persistent and consistent violence” reflected in Lujan’s
history and characteristics as well as the need to protect the public from his
further crimes. Lujan’s violent criminal history included several assault
convictions beginning in 2008. Moreover, all but one of those convictions
preceded the 2017 shooting incident, which Lujan’s counsel contended
exacerbated his mental health problems. Considering Lujan’s violent
criminal history and the district court’s concern for protecting the public, the
district court properly weighed the § 3553(a) factors and determined the 120-
month sentence was appropriate.
B.
Lujan’s substantive reasonableness challenge similarly fails. Lujan
argues that the district court failed to account for a factor that should have
received significant weight: his mental health. Lujan also contends that his
sentence represents a clear error of judgment in balancing § 3553(a)’s
sentencing factors. But after hearing Lujan’s mental health argument at
sentencing, the district court stated it would “give it appropriate weight,”
and the court implicitly concluded that other sentencing factors—Lujan’s
violent criminal history and the need to protect the public—warranted an
upward variance of 33 months above the 70- to 87-month guidelines range.
At bottom, Lujan disagrees with how the district court balanced the
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sentencing factors. But this court will not reweigh them. See Gall, 552 U.S.
at 51. And we have regularly affirmed significantly greater variances than the
33-month upward variance at issue in this case. See, e.g., United States v.
Saldana, 427 F.3d 298, 315–16 (5th Cir. 2005) (50-month departure above
the four- to ten-month guidelines range). Given the deference owed to the
district court’s sentencing decision, Lujan has failed to show the court abused
its discretion in finding that the § 3553(a) factors justified a 120-month
sentence. See Diehl, 775 F.3d at 724.
IV.
As to the validity of his guilty plea, Lujan first argues that
§ 922(g)(1) is unconstitutional because it exceeds Congress’s power under
the Commerce Clause. Lujan concedes this argument is foreclosed, so we
reject it as meritless. See, e.g., United States v. Perryman, 965 F.3d 424, 426
(5th Cir. 2020); United States v. De Leon, 170 F.3d 494, 499 (5th Cir.
1999); see also United States v. Smith, No. 22-10795, 2023 WL 5814936, at *2
(5th Cir. Sept. 8, 2023) (unpublished).
Second, Lujan 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.
But it is well established that an error is not clear or obvious when an issue is
unresolved, or when there is an absence of controlling authority. United
States v. Rodriguez-Parra, 581 F.3d 227, 230–31 (5th Cir. 2009). Even when,
as here, “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 holding
§ 922(g)(1) unconstitutional and because it is not clear that Bruen dictates
such a result, Lujan’s challenge fails. See Rodriguez-Parra, 581 F.3d at 230-
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31; see also United States v. Racliff, No. 22-10409, 2023 WL 5972049, at *1
(5th Cir. Sept. 14, 2023) (unpublished).
V.
Finally, Lujan asserts that his prior Texas convictions for aggravated
assault and aggravated assault with a deadly weapon do not qualify as “crimes
of violence” under U.S.S.G. § 4B1.2(a) for purposes of applying the
sentencing enhancement under U.S.S.G. § 2K2.1. Specifically, he contends
that the Texas aggravated assault statute, Tex. Penal Code § 22.02, is
broader than the enumerated offense of aggravated assault under
§ 4B1.2(a)(2). Lujan correctly acknowledges that his argument is foreclosed
by United States v. Guillen-Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007), so
we reject it as meritless.
AFFIRMED.
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