United States v. Moreno-Salazar

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 26, 2025
• Docket: 24-40601
• Status: Unpublished

Opinion

Case: 24-40601 Document: 60-1 Page: 1 Date Filed: 08/26/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-40601 Summary Calendar FILED ____________ August 26, 2025 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

James Alfredo Moreno-Salazar,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:24-CR-119-1 ______________________________

Before Barksdale, Haynes, and Oldham, Circuit Judges. Per Curiam: * James Alfredo Moreno-Salazar appeals his guilty-plea conviction for possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). He raises four constitutional issues regarding his statute of conviction: facial and as-applied challenges under the Second Amendment; a Commerce Clause challenge; and an equal-protection challenge under the

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-40601 Document: 60-1 Page: 2 Date Filed: 08/26/2025

No. 24-40601

Fifth Amendment’s Due Process Clause. Because he properly preserved his first three claims, our court reviews them de novo. E.g., United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014). His fourth—equal-protection— claim, however, was not preserved and is, therefore, reviewed for plain error. See id. Moreno asserts § 922(g)(1) is unconstitutional under the Second Amendment as applied to him because disarming him based upon his prior Texas conviction for the manufacture and delivery of a controlled substance does not fit within this country’s historical tradition of regulating firearms. In the light of our recent decision in United States v. Kimble, 142 F.4th 308, 309, 317–18 (5th Cir. 2025), his contention fails. In Kimble, our court held permanent disarmament of offenders with a predicate offense of felony drug trafficking, as is the case here, was “consistent with this Nation’s historical tradition of firearm regulation”. Id. at 317 (citation omitted). Turning to his facial challenge to § 922(g)(1) under the Second Amendment and his assertion that § 922(g)(1) violates the Commerce Clause, Moreno correctly concedes his claims are foreclosed by our precedent. See United States v. Diaz, 116 F.4th 458, 462, 467–72 (5th Cir. 2024), cert. denied, 2025 WL 1727419 (U.S. 23 June 2025) (No. 24-6625) (rejecting facial challenge to § 922(g)(1) under Second Amendment); United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (rejecting Commerce Clause challenge to § 922(g)(1)); United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020) (holding same). He raises these issues only to preserve them for possible further review. As noted, Moreno did not preserve his equal-protection challenge in district court (as he also concedes). As also noted, because the issue was not preserved, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Moreno must show a

2 Case: 24-40601 Document: 60-1 Page: 3 Date Filed: 08/26/2025

forfeited plain error (clear-or-obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (citation omitted). Prior to New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), our court rejected an equal-protection challenge to § 922(g)(1) in United States v. Darrington, 351 F.3d 632, 634–35 (5th Cir. 2003), abrogated on other grounds by Diaz, 116 F.4th at 458. In Darrington, our court held governmental restrictions on the right to bear arms need not meet a strict scrutiny test because it was not a fundamental right. Id. at 635. Moreno contends Bruen has rendered Darrington obsolete because the right to keep and bear arms is a fundamental right, and therefore strict scrutiny should apply. Neither the Supreme Court nor our court sitting en banc has overruled Darrington on this basis. Therefore, we are bound by the rule of orderliness to follow our precedent. See Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). In short, Moreno fails to show the requisite clear or obvious error. AFFIRMED.