Case: 19-10168      Document: 00515516186         Page: 1     Date Filed: 08/05/2020




         United States Court of Appeals
              for the Fifth Circuit                                  United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                       August 5, 2020
                                 No. 19-10168                          Lyle W. Cayce
                                                                            Clerk

 United States of America,

                                                            Plaintiff — Appellee,

                                     versus

 Alvin Christopher Penn,

                                                       Defendant — Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:17-CR-506-1


 Before Stewart, Clement, and Costa, Circuit Judges.
 Edith Brown Clement, Circuit Judge:
        Alvin Penn engaged in a shootout with a rival and then fled, crashing
 his car and tossing the gun a few minutes later. A jury convicted Penn of being
 a felon in possession of a firearm. At sentencing, the district court ordered
 Penn to pay restitution for property damaged during the melee. Penn argues
 that his brief possession of the gun was justified and the district court erred
 by not letting him present that defense to the jury. He also challenges the
 district court’s authority to order him to pay restitution for losses that
 weren’t caused by his possession of the gun. We reverse the district court’s
 restitution order but otherwise affirm Penn’s conviction and sentence.
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                                   No. 19-10168


                                        I.
        On the morning of July 6, 2017, Alvin Penn was serving out the
 remainder of a federal sentence at a halfway house. He left and was supposed
 to be on his way to work, but he went to his girlfriend’s house instead. After
 spending the morning with his girlfriend, Penn asked her to drop him off at
 his family’s apartment because his aunt, Carmela Harris, was cooking lunch
 for him. When Penn arrived at the entrance of the apartment complex, he
 saw Devante Scott and one of Scott’s associates, Kareem Robinson, standing
 by a car in the parking lot yelling at someone.
        Scott had a history with Penn’s family. He fathered two children with
 one of Penn’s cousins, Keuna Hancock, who lived at the apartment. Another
 one of Penn’s cousins, Demodrick Anderson, allegedly witnessed Scott
 murder a man. Anderson told his family about what he witnessed and began
 to distance himself from Scott, which is when the tension between Scott and
 Penn’s family began. Anderson was murdered a few months later, and Penn’s
 family believed that Scott was involved. Scott also allegedly threatened to kill
 Penn. So Scott was not welcome at the apartment.
        Penn’s girlfriend stopped the car about twenty yards away from Scott
 and Robinson, and Penn got out to see what they were doing there. Penn’s
 aunt screamed, “They got a gun.” Scott then pulled a gun from his pocket.
 Penn told Scott to put the gun down and fight, so Scott put the gun on the
 roof of his car. While Penn and Scott argued, Robinson picked up Scott’s
 gun, crouched behind the car, and said “I got him.” Fearing for Penn’s
 safety, Penn’s aunt rushed over to him and handed him her gun. Penn’s
 girlfriend ran for cover at that point. Moments later, Penn opened fire.
        A shootout ensued. After Penn and Robinson exchanged fire, Penn got
 into the driver’s seat of his girlfriend’s car and fled. Scott and Robinson
 chased after him; Scott drove while Robinson continued to shoot at Penn




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                                  No. 19-10168


 from the passenger-side window. As Penn exited the parking lot, he turned
 right onto a highway. Scott and Robinson followed. After making another
 turn, Penn drove through a residential neighborhood and “ended up losing”
 Scott and Robinson there. Once Scott and Robinson were no longer behind
 him, Penn returned to the highway and stopped at an intersection.
        While Penn was waiting at the light, Oscar Garcia, an officer
 responding to the scene of the gunfight, noticed that Penn’s car matched the
 description of one of the suspect vehicles. Garcia began following Penn.
 Although Garcia didn’t have his lights or sirens on, Penn looked in his rear-
 view mirror and realized that a police officer was behind him. Garcia
 continued to follow directly behind Penn as he cut across a parking lot to
 another street. Penn admitted that he could have pulled over to talk to Garcia,
 but he didn’t pull over because he was a convicted felon with a gun in the car.
 Last time Penn was arrested, he was allegedly beaten by officers. Penn
 “didn’t want to go back” to jail, “get caught with that gun,” or “get beat[en]
 again,” so he decided to try to evade Garcia.
        Penn took a sharp left turn in front of cars, and when he saw that
 Garcia had gotten caught in traffic, he sped up and turned into a
 neighborhood. Garcia activated his lights and gave chase. Penn began to lose
 control of his vehicle while running stop signs and accelerating rapidly
 through the neighborhood. He eventually hit a curb, ran through a wrought-
 iron fence, and crashed into an apartment building. Penn then jumped out of
 the car and grabbed the gun. After unsuccessfully trying to scale a fence
 behind the apartment building, Penn tossed the gun over the fence into a field
 and took off running. The entire chase—from the time Penn first saw Garcia
 until he wrecked his car and ditched the gun—lasted around five minutes.
        Garcia never caught Penn. When he arrived about a minute later, Penn
 was gone. Penn remained on the run until his arrest nearly a month later.




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                                     No. 19-10168


        Penn was charged with two federal crimes: escape from federal
 custody in violation of 18 U.S.C. §§ 751(a) and 4082(a), and possession of a
 firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
 924(a)(2). Penn moved to dismiss the felon-in-possession charge on the basis
 that § 922(g) is unconstitutional, but the district court denied Penn’s motion.
 Aside from that, Penn didn’t seriously contest the elements of his offenses.
 Instead, he went to trial primarily to raise an affirmative defense: he argued
 that he was justified in briefly possessing the gun to defend himself against
 Scott and Robinson. But the district court didn’t allow Penn to present that
 defense because Penn held on to the gun longer than necessary.
        The jury found Penn guilty on both counts. The district court
 sentenced him to 168 months’ imprisonment, followed by three years of
 supervised release. The district court also ordered Penn to pay restitution to
 two victims: first, the owner of a car that was struck by a bullet during the
 shootout between Penn and Robinson; and second, the owner of the
 apartment building and wrought-iron fence that Penn crashed into during the
 police chase. Penn timely appealed. 1
                                          II.
        Penn raises four issues on appeal: first, that the district court erred by
 refusing to instruct the jury on his justification defense; second, that the
 district court erred by excluding evidence related to that defense; third, that
 the order of restitution for losses not caused by his possession of the firearm
 was illegal; and fourth, that his conviction must be vacated because the
 interstate-commerce element of § 922(g) is unconstitutional. We address
 each issue in turn.


        1
          On appeal, Penn challenges his conviction and sentence only for the felon-in-
 possession charge; he does not challenge his escape conviction or sentence.




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                                         No. 19-10168


                                              A.
         First, Penn challenges the district court’s refusal to submit a jury
 instruction on the justification defense. We review de novo a district court’s
 refusal to provide an instruction on a defense that, if believed, would preclude
 a guilty verdict. United States v. Theagene, 565 F.3d 911, 917 (5th Cir. 2009).
 A criminal defendant is entitled to an instruction on a defense only if he
 presents sufficient evidence “for a reasonable jury to find in his favor.”
 Mathews v. United States, 485 U.S. 58, 63 (1988). The defendant must
 produce evidence to sustain a finding on each element of the defense “before
 it may be presented to the jury.” United States v. Posada-Rios, 158 F.3d 832,
 873 (5th Cir. 1998). In determining whether the defendant has made this
 threshold showing, “we construe the evidence and make inferences in the
 light most favorable to the defendant.” Theagene, 565 F.3d at 918.
         We have recognized “justification” as a defense to a felon-in-
 possession charge. See United States v. Harper, 802 F.2d 115, 117 (5th Cir.
 1986). 2 To establish that defense, a defendant must show that (1) he was
 under an imminent threat of death or serious injury; (2) he did not
 “recklessly or negligently” place himself in a situation where he would be
 forced to possess a firearm; (3) he had no “reasonable, legal alternative” to
 possessing the firearm; and (4) “a direct causal relationship” could be
 anticipated between possession of the firearm and abatement of the threat.
 Id. (quoting United States v. Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982)).




         2
           “The proper name of this defense has . . . not been established.” Harper, 802
 F.2d at 117 n.1. Courts have referred to the defense using the terms “necessity,” “duress,”
 and “self-defense” interchangeably and often lump those terms together under the general
 rubric of “justification.” Id.; United States v. Leahy, 473 F.3d 401, 406 (1st Cir. 2007). For
 simplicity, we refer to Penn’s defense as justification.




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                                   No. 19-10168


 The defendant must also prove a fifth element: that he possessed the firearm
 only during the time of danger. See Gant, 691 F.2d at 1163 n.9.
        In the felon-in-possession context, courts construe the justification
 defense “very narrowly” and limit its application to the “rarest of
 occasions.” E.g., United States v. Perrin, 45 F.3d 869, 874–75 (4th Cir. 1995).
 The defense is often unavailable unless the defendant did nothing more than
 disarm someone “in the heat of a dangerous moment,” and possess a gun
 briefly “to prevent injury to himself or to another.” United States v. Mahalick,
 498 F.3d 475, 479 (7th Cir. 2007) (citation omitted).
        We have found sufficient evidence for an instruction on the
 justification defense only once. In United States v. Panter, 688 F.2d 268 (5th
 Cir. 1982), Lester Panter was tending bar when he was assaulted by a drunk
 patron. Id. at 269. After threatening to kill Panter, the patron pulled a knife
 and stabbed him in the abdomen. Id. Panter reached beneath the bar for a
 club, but his hand fell fortuitously on a pistol. Id. He shot the patron and then
 immediately placed the gun on the bar. Id. We held that Panter could raise
 the defense because he presented evidence showing that he reacted out of a
 reasonable fear for his life, in a conflict that he didn’t provoke, and possessed
 the gun only for the short time necessary to defend himself. Id. at 270–72.
        The few cases in which our sister circuits have held that a justification
 instruction was required are similarly extraordinary. See, e.g., United States v.
 Paolello, 951 F.2d 537, 539–43 (3rd Cir. 1991) (holding justification defense
 available when defendant knocked a gun out of an attacker’s hand, ran away
 with the gun, and then dropped it when police ordered him to stop); United
 States v. Newcomb, 6 F.3d 1129, 1137–38 (6th Cir. 1993) (holding justification
 defense available when defendant disarmed a dangerous individual in an
 “emergency situation that unfolded rapidly” and possessed ammunition for
 only “a few minutes” before police arrived).




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                                         No. 19-10168


         The district court held that the justification defense was unavailable
 because Penn failed to present sufficient evidence that he possessed the gun
 “no longer than absolutely necessary.” Penn argues that the district court’s
 formulation of the fifth element was too strict. Under our precedent, Penn
 says, he need only show that he didn’t possess the gun for “any significant
 period” after the alleged necessity. Panter, 688 F.2d at 272.
         Penn misreads our precedent. To be sure, possession “before the
 danger or for any significant period after it remains a violation.” Id. But the
 converse is not true. We’ve never held that the defense applies when a
 defendant maintains possession for only a brief period after the danger.
 Instead, we’ve emphasized that the defense protects a defendant “only for
 possession during the time” that the emergency exists. Id. If the defendant
 “kept the gun beyond [that] time,” the defense is unavailable. Id. at 270–72;
 accord Gant, 691 F.2d at 1163 n.9. 3
         A defendant must act promptly to rid himself of the firearm once the
 circumstances giving rise to the justification subside. There is no bright-line
 rule that the defendant must turn the gun over to the police. See Panter, 688
 F.2d at 269. But when “a police officer happens to find the defendant
 first, . . . the officer’s presence gives the defendant an immediate chance to
 give up possession.” United States v. Moore, 733 F.3d 171, 174 (6th Cir. 2013).
 A defendant can’t assert a justification defense if he “fails to take advantage


         3
           Many circuit courts require, like the district court required here, a showing that
 the defendant did not maintain possession of the firearm “longer than absolutely
 necessary.” See, e.g., United States v. White, 552 F.3d 240, 247 (2d Cir. 2009); Paolello, 951
 F.2d at 542; United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990). Other courts
 require proof that the defendant “relinquish[ed] the gun at the ‘earliest possible
 opportunity.’” United States v. Butler, 485 F.3d 569, 573 (10th Cir. 2007) (quoting United
 States v. Bailey, 444 U.S. 394, 415 (1980)). We need not determine whether there is any
 difference between these formulations and what our precedent requires. Regardless of how
 we phrase it, Penn failed to make the minimum showing on the fifth element.




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                                         No. 19-10168


 of that chance.” Id.; see also Paolello, 951 F.2d at 542 (explaining that if the
 defendant ran from the police, then he “had an opportunity to dispose of the
 gun . . . earlier than he did”); United States v. Hammons, 566 F.2d 1301, 1302–
 04 (5th Cir.) (holding that a defendant who retained possession of a gun for
 only ten minutes couldn’t raise a justification defense because he made no
 attempt to get rid of the gun until police arrived and “tried to conceal the
 [gun] from the officers”), vacated on other grounds, 439 U.S. 810 (1978).
         We have little difficulty holding that Penn’s effort to evade arrest and
 hide the firearm from police negates any possible satisfaction of the fifth
 element. Penn admitted that he fled because he didn’t want to go back to jail.
 Garcia and Penn testified that no other cars were near them, so Scott and
 Robinson were no longer chasing Penn. By the time Penn saw Garcia, then,
 any imminent threat to Penn’s safety was gone. 4 Thus, Penn’s continued
 possession of the gun was prompted not by reasonable fear for his life but by
 a desire to avoid jail time.
          It makes no difference if Penn kept the gun only five minutes longer
 than necessary. That period might have been brief, but it wasn’t insignificant.
 Penn passed up several chances to give up the gun. He chose not to pull over
 and explain the situation to Garcia. He also chose not to leave the gun at the
 scene of the wreck; he took it with him and threw it into a field where it would
 be harder for police to find. “Far from evincing a ‘single-minded effort’ to
 divest himself of the gun safely, return it to law enforcement officers, or even
 to report to authorities the circumstances necessitating his possession of it,”


         4
           We reject Penn’s argument that his continued possession was justified by his fear
 of police, based on the beating officers allegedly gave him years earlier. Even if Penn’s
 generalized fear of police could satisfy the immediate-threat requirement, the question is
 whether that threat justified Penn’s possession of the gun, not his failure to pull over. Penn
 didn’t need a gun to flee from the police. So Penn cannot show that he could have avoided
 the threatened harm only by possessing the firearm. See Gant, 691 F.2d at 1164.




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                                  No. 19-10168


 Penn’s testimony shows just the opposite: a surreptitious effort to conceal
 his role in the shootout and unlawful firearm possession from the police.
 Virgin Islands v. Lewis, 620 F.3d 359, 370 (3d Cir. 2010).
        On these facts, no reasonable jury could find that Penn possessed the
 firearm “only . . . during the time he [was] endangered.” Panter, 688 F.2d at
 272. We therefore hold that Penn failed to present sufficient evidence on the
 fifth element of his justification defense. For that reason, the district court
 properly refused to instruct the jury on the defense.
                                       B.
        Second, Penn contends the district court erred by excluding evidence
 of Scott’s prior violent acts and threats against Penn’s family. We review a
 district court’s evidentiary rulings for abuse of discretion. United States v.
 Daniels, 930 F.3d 393, 404 (5th Cir. 2019). Even if the district court abused
 its discretion in excluding evidence, we will not vacate a conviction unless
 the error was harmful, meaning it affected a “substantial right” of the
 defendant. Id. The question “is whether the trier of fact would have found
 the defendant guilty beyond a reasonable doubt with the additional evidence
 inserted.” United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014) (quoting
 United States v. Wen Chyu Liu, 716 F.3d 159, 169 (5th Cir. 2013)).
        The evidence at issue pertains to Penn’s defense of justification.
 Because Penn failed to make the threshold showing required to present that
 defense, the evidence was irrelevant. See Bailey, 444 U.S. at 416 (holding that
 if a defendant fails to support one element of a defense, “the trial court and
 jury need not be burdened with testimony supporting other elements”);
 United States v. Ragsdale, 426 F.3d 765, 778 (5th Cir. 2005) (concluding that
 evidence offered to support an unavailable defense is irrelevant). Thus, the
 district court did not abuse its discretion by excluding that evidence.




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                                   No. 19-10168


         Penn asserts that even if the justification defense was unavailable, the
  district court should have allowed him to tell “his side of the story.” For
  instance, the government asked Penn’s aunt if it was fair to say she didn’t
  like Scott. Rather than object to that line of questioning, Penn’s counsel
  sought permission to ask Penn’s aunt why she didn’t like him. The
  government argued that the reason was “completely irrelevant.” The court
  didn’t allow Penn’s counsel to ask that question, but the court warned the
  government that it was coming “dangerously close to opening the door.”
         Even if the district court abused its discretion by excluding evidence
  about Scott, that error was harmless. The excluded evidence had no bearing
  on any element of the charged offenses. Penn’s argument that this evidence
  “would have informed the jury’s moral judgment,” suggests that the
  evidence would only inspire jury nullification. “Evidence admitted solely to
  encourage nullification is by definition irrelevant, and thus inadmissible,
  regardless of what other evidence might be introduced at trial.” United States
  v. Manzano, 945 F.3d 616, 630 (2d Cir. 2019).
                                        C.
         Third, Penn contends that the district court lacked authority to order
  restitution for damages that occurred during the shootout and police chase
  because those losses weren’t caused by his felon-in-possession conviction. A
  district court can order restitution only “when authorized by statute.”
  United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012) (quoting United
  States v. Love, 431 F.3d 477, 479 (5th Cir. 2005)). Because a restitution order
  that exceeds the court’s statutory authority is an illegal sentence, which
  always constitutes plain error, we review de novo the legality of a restitution
  order, regardless of whether the defendant raised this objection at
  sentencing. United States v. Nolen, 472 F.3d 362, 382 & n.52 (5th Cir. 2006);
  United States v. Bevon, 602 F. App’x 147, 151 (5th Cir. 2015) (unpublished).




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                                         No. 19-10168


          The district court’s judgment cited 18 U.S.C. § 3663 as the basis for
  restitution. Under § 3663, “a defendant convicted of an offense” may be
  ordered to “make restitution to any victim of such offense.” Id.
  § 3663(a)(1)(A). Because that language links restitution to the offense of
  conviction, the Supreme Court held that the statute authorizes an award of
  restitution “only for the loss caused by the specific conduct that is the basis
  of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413
  (1990). This is known as the Hughey rule.
          Penn argues that § 3663 did not authorize the district court’s
  restitution order because the victims’ losses were not caused by the conduct
  underlying his felon-in-possession conviction. 5 We agree.
          The district court ordered restitution for losses suffered when
  someone—it could have been Penn or Robinson—fired a bullet that struck a
  car during the shootout and when Penn crashed into a fence during the high-
  speed chase. The specific conduct underlying the elements of the felon-in-
  possession offense does not include use of a firearm or flight from police. As
  a result, neither the owner of the car nor the owner of the fence is a “victim”
  of Penn’s conviction. See Espinoza, 677 F.3d at 733–34 (holding loss sustained
  by pawn shop that bought stolen firearms from defendant was not caused by
  conduct underlying defendant’s felon-in-possession conviction); United
  States v. West, 646 F.3d 745, 751 (10th Cir. 2011) (holding damage caused to
  cars and store while defendant was fleeing from police was not caused by
  conduct underlying defendant’s felon-in-possession conviction); United



          5
            The district court ordered Penn to pay restitution based on his felon-in-possession
  conviction. That offense requires proof that (1) the defendant knowingly possessed a
  firearm; (2) before possessing that firearm, the defendant had been convicted of a felony;
  and (3) before the defendant possessed the firearm, it traveled in and affected interstate
  commerce. United States v. Ortiz, 927 F.3d 868, 874 (5th Cir. 2019).




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                                    No. 19-10168


  States v. Reed, 80 F.3d 1419, 1421 (9th Cir. 1996) (holding damage caused to
  vehicles while defendant was fleeing from police was not caused by conduct
  underlying defendant’s felon-in-possession conviction). Thus, § 3663 could
  not serve as the basis for the restitution order.
         According to the government, however, the district court intended to
  order restitution under 18 U.S.C. § 3583(d). That statute allows a court to
  impose as a condition of supervised release any discretionary condition of
  probation found in § 3563(b), including “restitution to a victim of the offense
  under section 3556.” Id. §§ 3583(d), 3563(b)(2). In turn, § 3556 provides that
  a court “shall order restitution in accordance with section 3663A, and may
  order restitution in accordance with section 3663.” Id. § 3556. But restitution
  ordered as a condition of supervised release is “not subject to the limitation
  of section 3663(a) or 3663A(c)(1)(A).” Id. § 3563(b)(2).
         The government argues that the inapplicable “limitation” to which
  § 3563(b) refers is the definition of “victim” in § 3663(a)(2), which more or
  less codifies the Hughey rule. We disagree. Sections 3663(a) and
  3663A(c)(1)(A) limit restitution under those statutes to a list of enumerated
  offenses. See id. §§ 3663(a)(1)(A), 3663A(c)(1)(A). The “limitation”
  excluded by § 3563(b)(2) is that enumerated-crimes limitation, not the
  Hughey rule. See Love, 431 F.3d at 480 & n.11.
         Applying the Hughey rule to § 3563(b)(2) makes sense. Restitution
  under that statute is limited to victims “of the offense,” a phrase nearly
  identical to the one that the Court construed in Hughey, 495 U.S. at 413 n.1
  Indeed, every circuit court that has considered this issue has held that the
  Hughey rule applies to § 3563(b)(2). See, e.g., United States v. Varrone, 554
  F.3d 327, 333–34 (2d Cir. 2009) (Sotomayor, J.); United States v. Freeman,
  741 F.3d 426, 433–35 (4th Cir. 2014); United States v. Batson, 608 F.3d 630,
  636–37 (9th Cir. 2010). We too have observed that restitution imposed under




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                                   No. 19-10168


  § 3563(b)(2) must be “limited to losses from the crime of conviction.” United
  States v. Nolen, 523 F.3d 331, 333 (5th Cir. 2008).
         In sum, restitution imposed as a condition of supervised release can
  compensate only for losses caused by the specific conduct that is the basis for
  the offense of conviction. Hughey, 495 U.S. at 413. For that reason, even if
  the district court intended to order restitution as a condition of supervised
  release, the court lacked authority to do so. See Espinoza, 677 F.3d at 733–34;
  West, 646 F.3d at 751. We thus reverse the district court’s restitution order.
                                        D.
         Fourth, Penn contends that 18 U.S.C. § 922(g), as construed, is
  unconstitutional. Penn preserved this issue by raising it in his motion to
  dismiss the indictment. We review the constitutionality of a federal statute
  de novo. United States v. Portillo-Munoz, 643 F.3d 437, 439 (5th Cir. 2011).
         Section 922(g) prohibits some people from possessing a firearm “in
  or affecting commerce.” 18 U.S.C. § 922(g). We have held that the “in or
  affecting commerce” element is satisfied if the firearm had “a past
  connection to interstate commerce.” United States v. Fitzhugh, 984 F.2d 143,
  146 (5th Cir. 1993). Under that interpretation, Penn argues, § 922(g) exceeds
  Congress’s power under the Commerce Clause.
         As Penn properly concedes, our precedent forecloses this argument.
  See, e.g., United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). He
  contends, though, that we should reinterpret § 922(g) in light of the Supreme
  Court’s decision in Bond v. United States, 572 U.S. 844 (2014). But Bond did
  not address § 922(g) or abrogate our precedent. See United States v. Brooks,
  770 F. App’x 670, 670 (5th Cir. 2019) (unpublished). Accordingly, we are
  bound by our settled precedent and conclude that this issue is foreclosed.




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                                  No. 19-10168


                                      III.
        For the foregoing reasons, we reverse the district court’s restitution
  order and affirm Penn’s conviction and sentence in all other respects.
        AFFIRMED IN PART; REVERSED IN PART.




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