     Case: 19-10597      Document: 00515305590         Page: 1    Date Filed: 02/11/2020




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


                                    No. 19-10597
                                                                                FILED
                                                                        February 11, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

CHARLES MONROE FINCHUM,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-126-1


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Charles Monroe Finchum appeals his guilty plea conviction for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 924(a)(2). Relying on National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012), he argues that § 922(g)(1) exceeds
the scope of Congress’s power under the Commerce Clause and is therefore
unconstitutional.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10597    Document: 00515305590     Page: 2   Date Filed: 02/11/2020


                                 No. 19-10597

      The Government has filed an unopposed motion for summary affirmance
and an alternative request for an extension of time to file its brief.      The
Government asserts that, under circuit precedent, Finchum’s challenge to the
constitutionality of § 922(g) is foreclosed. Summary affirmance is proper when,
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 Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
      Finchum’s argument that § 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). Finchum concedes as much and
raises the argument to preserve it for further review.
      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 judgment of the district court is AFFIRMED.




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