     Case: 15-10559      Document: 00513344336         Page: 1    Date Filed: 01/15/2016




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


                                    No. 15-10559                                FILED
                                  Summary Calendar
                                                                         January 15, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

STEVEN KANE CROUCH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:14-CR-75-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Steven Kane Crouch pleaded guilty to one count of being a felon in
possession of a firearm and aiding and abetting in violation of 18 U.S.C.
§§ 922(g)(1), 2. He admitted in the factual basis for his guilty plea that he
possessed the firearm and ammunition, that he had previously been convicted
of a felony, and that, “before [he] possessed them, the firearm and ammunition
had moved in or affected interstate or foreign commerce.” Crouch did not admit


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-10559

to knowing that he was a felon or that the firearm and ammunition had moved
in or affected interstate commerce, and he now argues that the absence of such
admissions fatally undermines the factual basis for his plea.               He also
challenges the constitutionality of § 922(g) on its face and as it applies to him.
      Section § 924(a)(2) penalizes a person who “knowingly violates” § 922(g).
Section 922(g)(1) prohibits a felon from receiving, transporting, and possessing
in or affecting interstate or foreign commerce any firearm or ammunition.
Crouch contends that § 924(a)(2) “houses the mens rea element,” for an offense
under § 922(g), which requires proof of his knowledge as to each element of the
offense. He recognizes that this argument has been rejected many times but
contends that the issue should be revisited in light of the Supreme Court’s
recent decision in McFadden v. United States, 135 S. Ct. 2298 (June 18, 2015).
He claims that the factual basis for his plea was inadequate under Federal
Rule of Criminal Procedure 11(b)(3) because he neither admitted that he knew
he was a felon or that he knew the firearm and ammunition had an interstate
nexus.
      “Rule 11(b)(3) requires a district court taking a guilty plea to make
certain that the factual conduct admitted by the defendant is sufficient as a
matter of law to establish a violation of the statute to which he entered his
plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (footnote
omitted).   As Crouch concedes, plain error review applies to his forfeited
objection to the factual sufficiency of his plea. See id. To establish plain error,
he must show a forfeited error that is clear or obvious 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.



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                                 No. 15-10559

      We have “held that a conviction under § 922(g)(1) requires proof that the
defendant knew that he had received (or possessed or transported) a firearm
but does not require proof that he knew that the firearm had an interstate
nexus or that he was a felon.” United States v. Schmidt, 487 F.3d 253, 254 (5th
Cir. 2007) (citing United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988)).
We have also held that it is sufficient to prove a past connection between the
firearm and interstate commerce. See United States v. Rawls, 85 F.3d 240, 243
(5th Cir. 1996) (proving that a firearm was manufactured in Massachusetts
means that its “presence in Texas had to result from transport in interstate
commerce”). The Supreme Court’s decision in McFadden did not abrogate
these holdings. Accordingly, the district court’s finding of an adequate factual
basis for Crouch’s guilty plea was not a clear or obvious error. See Puckett, 556
U.S. at 135.
      Crouch also contends that we should revisit the constitutionality of
§ 922(g) in light of the Supreme Court’s recent treatment of the Commerce
Clause in Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (NFIB),
which he contends “overrules the long-standing notion that a firearm which
has previously and remotely passed through interstate commerce should be
considered to indefinitely affect commerce.” He further challenges § 922(g) as
applied to him because “[t]he language and reasoning of NFIB overwhelmingly
support the notion that Congress may only regulate ongoing economic
activity,” but there were no allegations or factual admissions that he possessed
the firearm and ammunition while involved in ongoing economic activity.
Crouch acknowledges, however, that we have previously rejected his
contentions based on NFIB, but he raises the issues to preserve them for
further review by the Supreme Court. See United States v. Alcantar, 733 F.3d
143, 146 (5th Cir. 2013).



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                                No. 15-10559

      Accordingly, the judgment of the district court is AFFIRMED.           The
government’s motions for summary affirmance and, in the alternative, for an
extension of time to file an appellate brief are DENIED.




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