     Case: 18-50593      Document: 00514942605         Page: 1    Date Filed: 05/03/2019




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

                                                                                  FILED
                                    No. 18-50593                               May 3, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANDREW HIDALGO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:17-CR-591-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Andrew Hidalgo appeals his guilty plea conviction of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He relies on
United States v. Lopez, 514 U.S. 549 (1995), to argue that § 922(g)(1)
unconstitutionally extends federal control to the mere non-commercial
possession of a firearm. Hidalgo contends that a felon’s possession of a firearm,
like possession of a firearm near a school, the offense at issue in Lopez, does


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50593     Document: 00514942605      Page: 2   Date Filed: 05/03/2019


                                  No. 18-50593

not have a sufficient nexus to interstate commerce. He concedes, however, that
his argument is foreclosed by circuit precedent, and he raises the issue to
preserve it for Supreme Court review.
      The Government has filed an unopposed motion for summary
affirmance; in the alternative, it requests an extension of time to file its brief.
The Government agrees with Hidalgo that, under circuit precedent, Hidalgo’s
challenge to the constitutionality of § 922(g)(1) is foreclosed.        Summary
affirmance is proper where, among other instances, “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case . . . .” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
      “This court has repeatedly emphasized that the constitutionality of
§ 922(g)(1) is not open to question.” United States v. De Leon, 170 F.3d 494,
499 (5th Cir. 1999); see United States v. Alcantar, 733 F.3d 143, 146 (5th Cir.
2013). In United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996), we rejected
a challenge to the constitutionality of § 922(g)(1) on the basis that neither the
holding nor the reasoning in Lopez constitutionally invalidates § 922(g)(1).
      In view of the foregoing, the Government’s motion for summary
affirmance is GRANTED.         The Government’s alternative motion for an
extension of time to file a brief is DENIED AS MOOT. The judgment of the
district court is AFFIRMED.




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