United States v. Altamirano

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 3, 2025
• Docket: 24-50816
• Status: Unpublished

Opinion

Case: 24-50816 Document: 53-1 Page: 1 Date Filed: 09/03/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED September 3, 2025 No. 24-50816 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Rudy Altamirano,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 7:24-CR-77-1 ______________________________

Before Richman, Southwick, and Willett, Circuit Judges. Per Curiam:* Rudy Altamirano pleaded guilty to possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). His predicate felonies include theft of a firearm and possession of a controlled substance. On appeal, he argues that the statute of conviction violates the Commerce Clause and the Second Amendment, both on its face and as applied to him, in light of the

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-50816 Document: 53-1 Page: 2 Date Filed: 09/03/2025

No. 24-50816

test set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). He further contends that the as-applied analysis outlined by this court in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 2025 WL 1727419 (U.S. June 23, 2025) (No. 24-6625), is incorrect and should be confined to its facts—§ 922(g)(1) convictions involving the predicate felony of vehicle theft. The Government moves for summary affirmance or, in the alternative, an extension of time to file a brief. The Government is correct that Altamirano’s arguments are foreclosed. See United States v. LeBlanc, No. 24-30036, 2025 WL 2218881, at *2 (5th Cir. Aug. 5, 2025) (“Because ‘our country has a historical tradition of severely punishing people . . . who have been convicted of theft,’ we held that ‘disarming [the defendant] fits within this tradition of serious and permanent punishment.’”) (citation omitted); Diaz, 116 F.4th at 462, 467- 72 (holding that because “theft . . . would have led to capital punishment or estate forfeiture[,] [d]isarming [the defendant] fits within this tradition of serious and permanent punishment”); United States v. Schnur, 132 F.4th 863, 871 (5th Cir. 2025) (holding that for “theft-related felony convictions, Diaz forecloses [a defendant’s] as-applied challenge”). And Altamirano concedes that his facial challenge and Commerce Clause arguments are foreclosed. However, because he does not concede that all his arguments are foreclosed, summary affirmance is not appropriate. See United States v. Monshizadeh, 679 F. App’x 359, 360 (5th Cir. 2017). Nevertheless, because Diaz and Schnur are dispositive, we affirm the district court’s judgment without further briefing. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019). For these reasons, the motion for summary affirmance is DENIED, the alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.