     Case: 19-50081      Document: 00515084445         Page: 1    Date Filed: 08/20/2019




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

                                                                               FILED
                                    No. 19-50081                           August 20, 2019
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUCIANO DIAZ-CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-113-2


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Luciano Diaz-Contreras pleaded guilty of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Relying primarily
on United States v. Lopez, 514 U.S. 549 (1995), Diaz-Contreras contends that
§ 922(g)(1) unconstitutionally extends federal control to firearm possession
that does not substantially affect interstate commerce. He concedes, however,




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50081     Document: 00515084445      Page: 2   Date Filed: 08/20/2019


                                  No. 19-50081

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 agrees with Diaz-Contreras that, under circuit precedent,
Diaz-Contreras’s challenge to the constitutionality of § 922(g)(1) 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 held that § 922(g) can constitutionally be applied if a
firearm has traveled across state lines. See United States v. Alcantar, 733 F.3d
143, 145 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513, 518 (5th
Cir. 2001); United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996). “[T]he
constitutionality of § 922(g)(1) is not open to question.”      United States v.
De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
      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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