     Case: 18-50972      Document: 00515096914         Page: 1    Date Filed: 08/29/2019




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

                                    No. 18-50972                            FILED
                                  Summary Calendar                    August 29, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

v.

BRANDON JOE PEREZ, also known as Brandon Perez,

                                                 Defendant−Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-67-1


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Brandon Joe Perez appeals his guilty plea conviction of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Relying on
United States v. Lopez, 514 U.S. 549 (1995) and National Federation of
Independent Business v. Sebelius, 567 U.S. 519 (2012), he argues that
§ 922(g)(1) unconstitutionally extends federal control to the mere non-
commercial possession of a firearm. Perez concedes, however, that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50972     Document: 00515096914      Page: 2   Date Filed: 08/29/2019


                                   No. 18-50972

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, requesting alternatively an extension of time to file its brief. The
Government asserts that the parties agree that, under circuit precedent,
Perez’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), finding 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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