     Case: 12-10854       Document: 00512171653         Page: 1     Date Filed: 03/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 12, 2013
                                     No. 12-10854
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANNY RAY ALEXANDER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-328-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Danny Ray Alexander pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced
to 180 months of imprisonment and a two-year term of supervised release. On
appeal, Alexander challenges his conviction on the ground that the factual basis
for his plea was insufficient to allege an offense because it did not admit that his
firearm possession was an act of interstate commerce. The Government moves
for summary affirmance or, alternatively, for an extension of time to file a brief.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10854    Document: 00512171653      Page: 2   Date Filed: 03/12/2013

                                  No. 12-10854

      As Alexander concedes, our review in this case is only for plain error since
he failed to object in the district court to the adequacy of the factual basis to
support his plea. See United States v. Garcia-Paulin, 627 F.3d 127, 131 (5th Cir.
2010). To show plain error, Alexander must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he 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. See id.
      A conviction under § 922(g)(1) requires proof that “(1) that the defendant
previously had been convicted of a felony; (2) that he knowingly possessed a
firearm; and (3) that the firearm traveled in or affected interstate commerce.”
United States v. Meza, 701 F.3d 411, 418 (5th Cir. 2012). The factual basis to
which Alexander stipulated is sufficient to sustain each of these elements, and
Alexander does not contend otherwise. Instead, he asserts that § 922(g)(1) is
constitutionally invalid to the extent that it attempts to criminalize the
possession by a convicted felon of a firearm that has traveled between states at
some unknown time in the past.        He asserts that such possession, to be
considered ongoing commerce, must be tethered to some requirement that the
firearm has been purchased, sold, or transported within a specified time period.
In support of this assertion, he relies on his interpretation of a recent Supreme
Court case, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), as
establishing that the Commerce Clause permits Congress to regulate or prohibit
only activities that are ongoing and that are economic in nature.
      Alexander acknowledges he cannot show error that is clear or obvious
under current law. He raises the issue here to preserve it for further review. He
also seeks to preserve for further review his contentions that the issue whether
a factual basis admits a constitutional offense presents the question whether
there can be a cognizable finding of guilt and that such an issue ought not be
reviewed only for plain error.

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    Case: 12-10854     Document: 00512171653     Page: 3   Date Filed: 03/12/2013

                                  No. 12-10854

      Alexander has not met his burden under the plain error standard. The
district court’s judgment is AFFIRMED. The Government’s motion for summary
affirmance and its alternative motion for an extension of time to file a brief are
DENIED.




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