United States v. Overman

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 15, 2024
• Docket: 23-10639
• Status: Unpublished

Opinion

Case: 23-10639 Document: 00517064604 Page: 1 Date Filed: 02/15/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-10639 FILED February 15, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

David Thomas Overman,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:22-CR-90-1 ______________________________

Before King, Haynes, and Graves, Circuit Judges. Per Curiam: * David Thomas Overman appeals his guilty plea conviction for being a felon in possession of a firearm. Overman contends that the district court erred by accepting his guilty plea because 18 U.S.C. § 922(g) requires more than the mere prior movement of a firearm in interstate commerce to satisfy the statute’s jurisdictional nexus; exceeds Congress’s Commerce Clause

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10639 Document: 00517064604 Page: 2 Date Filed: 02/15/2024

No. 23-10639

power; and was rendered unconstitutional by the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). He further argues that the district court plainly erred by failing to inform him, under Federal Rule of Criminal Procedure 11(b)(1)(G), of § 922(g)’s unconstitutionality. Because Overman did not object to the district court’s acceptance of his guilty plea, let alone on any of the bases he pleads on appeal, review is for plain error. See Puckett v. United States, 556 U.S. 129, 134 (2009); United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To show plain error, Overman must, relevantly, identify (1) a forfeited error (2) that is clear or obvious, rather than subject to reasonable dispute, and (3) that affects his substantial rights. See Puckett, 556 U.S. at 135. Overman fails to make the requisite showing. He cites no binding authority for his arguments that satisfying § 922(g)’s interstate-commerce nexus requires more than a simple admission that the firearm in question travelled in interstate commerce—a fact he admitted in pleading guilty—or that § 922(g) exceeds Congress’s authority under the Commerce Clause. A “lack of binding authority is often dispositive in the plain-error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). To the contrary, both this court and the Supreme Court have rejected such arguments. See Scarborough v. United States, 431 U.S. 563, 575 (1977); United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013). Overman similarly cites no authority from this court or the Supreme Court holding § 922(g) to be unconstitutional, either facially or as applied, in light of Bruen. See Gonzalez, 792 F.3d at 538. Thus, whether the district court erred in light of Bruen is, at best, subject to reasonable dispute. “By definition, that is not plain error.” United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012). We recently applied this standard directly to § 922(g) holding that applying this statute is not plain error. See United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023).

2 Case: 23-10639 Document: 00517064604 Page: 3 Date Filed: 02/15/2024

Lastly, Overman cites no authority requiring a district court, under Rule 11(b)(1)(G), to advise a defendant of the actual or potential unconstitutionality of the statute to which he is pleading. See Gonzalez, 792 F.3d at 538. Rule 11(b)(1)(G)’s requirement that defendants understand the “nature of the charge” against them “refers to the elements of the offense.” United States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001). In pleading guilty, Overman confirmed that he understood the elements of a § 922(g) offense. He thus fails to show error, let alone clear or obvious error. We AFFIRM the judgment.