Opinion
22-10677
04-25-2023
United States of America, Plaintiff-Appellee, v. Mark Anthony Roy, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-216-1
Before WIENER, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM [*]
Mark Anthony Roy pleaded guilty to possession of a firearm after a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him to 75 months of imprisonment and three years of supervised release. Roy contends that § 922(g)(1) is unconstitutional.
Because Roy did not challenge the constitutionality of § 922(g) before the district court, we review only for plain error. See United States v. Knowles, 29 F.3d 947, 950 (5th Cir. 1994). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Roy argues that § 922(g) is unconstitutional because it exceeds Congress's power under the Commerce Clause. However, this argument is foreclosed by United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013). See United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).
Roy also asserts that the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111 (2022), suggests that § 922(g)(1) is unconstitutional. An error is not clear or obvious where an issue is disputed or unresolved, or where there is an absence of controlling authority. United States v. Rodriguez-Parra, 581 F.3d 227, 230-31 (5th Cir. 2009). In fact, "[e]ven where the argument requires only extending authoritative precedent, the failure of the district court [to do so] cannot be plain error." Wallace v. Mississippi, 43 F.4th 482, 500 (5th Cir. 2022) (internal quotation marks and citation omitted). Because there is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional and because it is not clear that Bruen dictates such a result, Roy is unable to demonstrate an error that is clear or obvious. See Rodriguez-Parra, 581 F.3d at 230-31.
AFFIRMED.
[*] This opinion is not designated for publication. See 5TH CIR. R. 47.5.