     Case: 17-50433      Document: 00514418664         Page: 1    Date Filed: 04/06/2018




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

                                    No. 17-50433                                FILED
                                  Summary Calendar                           April 6, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHN FRANK LAKE, also known as Lake, also known as John F. Lake,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1120-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       John Frank Lake 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. Lake contends that a felon’s
possession of a firearm, like possession of a firearm near a school, the offense


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50433     Document: 00514418664      Page: 2   Date Filed: 04/06/2018


                                  No. 17-50433

at issue in 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, Lake’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 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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