     Case: 19-50630      Document: 00515321009         Page: 1    Date Filed: 02/26/2020




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

                                                                          FILED
                                                                     February 26, 2020
                                    No. 19-50630
                                                                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GLENN RAY MCGARITY, JR., also known as Michael Lewis, also known as
Glenn Ray McGarity, also known as Glenn McGarity, also known as Glenn
McGarity, Jr.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-436-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Glenn Ray McGarity, Jr., was convicted after a bench trial of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and
possession of counterfeit securities, in violation of 18 U.S.C. § 472. He now
appeals, challenging the constitutionality of Section 922(g)(1). Relying on
United States v. Lopez, 514 U.S. 549 (1995), McGarity asserts that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50630   Document: 00515321009     Page: 2   Date Filed: 02/26/2020


                                 No. 19-50630

Section 922(g)(1) exceeds the scope of Congress’s power under the Commerce
Clause and is therefore unconstitutional.     He concedes, however, that his
argument is foreclosed by circuit precedent, and he makes the argument to
preserve it for further review. The Government has filed an unopposed motion
for summary affirmance and an alternative request for an extension of time to
file its brief.
       Summary affirmance is proper if “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).      McGarity’s argument that Section 922(g)(1) is
unconstitutional because it exceeds the scope of Congress’s power under the
Commerce Clause is foreclosed. See United States v. Alcantar, 733 F.3d 143,
145–46 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001); United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
       Accordingly, 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. The district court’s judgment is AFFIRMED.




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