     Case: 18-50024      Document: 00514600976         Page: 1    Date Filed: 08/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-50024                          FILED
                                  Summary Calendar                  August 15, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

JOHNY GARDNER,

                                                 Defendant–Appellant.


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:17-CR-281-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Johny Gardner appeals 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 federal control to the mere non-commercial
possession of a firearm.        Gardner contends that a felon’s possession of a
firearm, like possession of a firearm near a school, the offense at issue in Lopez,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50024     Document: 00514600976      Page: 2   Date Filed: 08/15/2018


                                  No. 18-50024

does not have a sufficient nexus to 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 agree that, under circuit precedent,
Gardner’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) (citation omitted); 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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