United States v. Vargas

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 18, 2024
• Docket: 23-50341
• Status: Unpublished

Opinion

Case: 23-50333 Document: 58-1 Page: 1 Date Filed: 03/18/2024

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 23-50333 consolidated with FILED No. 23-50341 March 18, 2024 _____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Juan Jesus Vargas,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC Nos. 7:22-CR-256-1, 7:16-CR-203-1 ______________________________

Before King, Haynes, and Graves, Circuit Judges. Per Curiam: * Juan Jesus Vargas pleaded guilty of violating 18 U.S.C. § 922(g)(1) by being a felon in possession of ammunition, 1 and the district court sentenced

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 1 His previous felony convictions include aggravated assault via shooting someone to kill them. Case: 23-50333 Document: 58-1 Page: 2 Date Filed: 03/18/2024

No. 23-50333 c/w No. 23-50341

him to a within-guidelines 115-month term of imprisonment and to a three- year period of supervised release. Vargas’s supervised release in case number 7:16-CR-203-1 was revoked, and Vargas was sentenced to a consecutive 24-month term of imprisonment. Timely notices of appeal were filed, and the two appeals have been consolidated. Vargas contends that the district court failed to provide an adequate explanation of its application of the statutory sentencing factors. Vargas’s request for a sentence in the middle of the range did not preserve this procedural error, and our review is for plain error. See United States v. Coto- Mendoza, 986 F.3d 583, 585-86 (5th Cir. 2021). Here, the district court provided an adequate explanation. There was no error, plain or otherwise, with respect to the adequacy of the district court’s reasons. See id. at 586-87; see also Rita v. United States, 551 U.S. 338, 356-57 (2007). Vargas also asserts that the sentences were substantively unreasonable. Vargas has not rebutted the presumption of reasonableness that is accorded to within-Guidelines sentences. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). For the first time on appeal, Vargas also asserts that § 922(g) violates the Commerce Clause and the Second Amendment. He invokes United States v. Lopez, 514 U.S. 549 (1995), and New York State Rifle & Pistol Assn., Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Vargas’s Commerce Clause challenge is foreclosed. See United States v. Jones, 88 F.4th 571, 573-74 (5th Cir. 2023). Any Second Amendment violation is not clear or obvious. See id. Although Vargas attempts to distinguish Jones because his offense involves ammunition, he has not pointed to any binding authority holding that ammunition and firearms

2 Case: 23-50333 Document: 58-1 Page: 3 Date Filed: 03/18/2024

should be treated differently for Second Amendment purposes. He has failed to show reversible plain error. See Jones, 84 F.4th at 574. However, the criminal judgment states incorrectly that Vargas was convicted of being a felon in possession of a firearm, rather than ammunition. Thus, we remand for correction of the clerical error. See Fed. R. Crim. P. 36. The judgments are AFFIRMED, and this matter is REMANDED for correction of the clerical error.