     Case: 16-51377      Document: 00514071604         Page: 1    Date Filed: 07/13/2017




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


                                    No. 16-51377                                 FILED
                                  Summary Calendar                           July 13, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERT HOPES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CR-186-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Robert Hopes appeals following 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 the reach of the Commerce Clause to the mere non-
commercial possession of a firearm. Hopes contends that a felon’s possession
of a firearm, like possession of a firearm near a school, the offense at issue in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51377     Document: 00514071604      Page: 2   Date Filed: 07/13/2017


                                  No. 16-51377

Lopez, does not have a substantial effect on 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 asserts that the parties are in agreement that, under circuit
precedent, Hopes’s challenge to the constitutionality of § 922(g) 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 also 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. The judgment of the district court
is AFFIRMED.




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