United States v. Brandon Perez

Opinion

Case: 18-50972 Document: 00515096914 Page: 1 Date Filed: 08/29/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

No. 18-50972 FILED Summary Calendar August 29, 2019 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

v.

BRANDON JOE PEREZ, also known as Brandon Perez,

Defendant−Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:18-CR-67-1

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges. PER CURIAM: * Brandon Joe Perez appeals his guilty plea conviction of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Relying on United States v. Lopez, 514 U.S. 549 (1995) and National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), he argues that § 922(g)(1) unconstitutionally extends federal control to the mere noncommercial possession of a firearm. Perez concedes, however, that his

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case: 18-50972 Document: 00515096914 Page: 2 Date Filed: 08/29/2019

No. 18-50972

argument is foreclosed by circuit precedent, and he raises the issue to preserve it for Supreme Court review.

The Government has filed an unopposed motion for summary affirmance, requesting alternatively an extension of time to file its brief. The Government asserts that the parties agree that, under circuit precedent, Perez’s challenge to the constitutionality of § 922(g) is foreclosed. Summary affirmance is proper where, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

“This court has repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to question.” United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999); see also United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). In United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996), we rejected a challenge to the constitutionality of § 922(g)(1), finding that neither the holding nor the reasoning in Lopez constitutionally invalidates § 922(g)(1).

In view of the foregoing, 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. The judgment of the district court is AFFIRMED.