     Case: 13-10707      Document: 00512689985         Page: 1    Date Filed: 07/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10707
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 8, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DIAMOND CHARLES MOODY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-339-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Diamond Charles Moody appeals his conviction of being a felon in
possession of a firearm.        See 18 U.S.C. § 922(g)(1).        Relying on National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)
(National Federation), he contends that § 922(g)(1) exceeds Congress’s power
under the Commerce Clause. He argues that § 922(g)(1) is unconstitutional as
applied because his factual resume did not state that his possession of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10707     Document: 00512689985      Page: 2   Date Filed: 07/08/2014


                                  No. 13-10707

firearm was an economic activity and failed to reflect that he was engaged in
the relevant market at the time of the regulated conduct. Further, he contends
that § 922(g)(1) is facially unconstitutional because National Federation
interpreted the Commerce Clause to mandate that “Congress may regulate
only ongoing economic activity,” and his possession of a firearm purchased
many years ago does not qualify. Moody raises these arguments to preserve
them for further review. The Government moves for summary affirmance, or
in the alternative, for an extension of time to file an appellee’s brief.
      In United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), and
decisions following, this court held that § 922(g)(1) was a valid exercise of
Congress’s authority under the Commerce Clause.             See United States v.
Alcantar, 733 F.3d 143, 145 (5th Cir. 2013), cert. denied, 134 S. Ct. 1570 (2014).
In Alcantar, we determined that National Federation did not overrule this
court’s precedent upholding § 922(g)(1). See id. at 146. Whether our review is
de novo or for plain error, Moody’s challenge to the constitutionality of §
922(g)(1) is foreclosed. See id. at 146 & n.4.
      Therefore, we GRANT the Government’s motion for summary
affirmance, DENY its alternative motion for an extension of time to file an
appellee’s brief, and AFFIRM Moody’s conviction.




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