Unreported / Non-Citable
Background
Lewis Green, III, appealed his convictions for possessing a firearm after a felony conviction under 18 U.S.C. § 922(g)(1) and possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c)(1)(A).
Relying on New York State Rifle & Pistol Ass’n, Inc. v. Bruen, Green argued for the first time on appeal that § 924(c)(1)(A) and § 922(g)(1) violated the Second Amendment as applied to him and that § 922(g)(1) was facially unconstitutional. He also contended that § 922(g)(1) exceeded Congress’s Commerce Clause authority. Green conceded that plain-error review applied. The government sought summary affirmance or, alternatively, additional briefing time.
The Court’s Holding
The Fifth Circuit affirmed Green’s convictions. It held that circuit precedent foreclosed his facial and as-applied challenges to § 922(g)(1), as well as his contention that the statute exceeded Congress’s Commerce Clause power.
The court also held that Green could not establish plain error as to § 924(c)(1)(A). Neither the Supreme Court nor a published Fifth Circuit opinion had resolved whether or how that provision implicates the Second Amendment after Bruen, while an unpublished Fifth Circuit decision had rejected an equivalent plain-error challenge and multiple other circuits had rejected post-Bruen Second Amendment challenges to § 924(c)(1). The panel denied the government’s motion for summary affirmance and denied its alternative extension request as unnecessary. Judge Willett stated that he would have denied summary affirmance and granted additional time for merits briefing.
Key Takeaways
- Existing Fifth Circuit precedent foreclosed Green’s Second Amendment and Commerce Clause challenges to § 922(g)(1).
- Green’s post-Bruen challenge to § 924(c)(1)(A) failed under plain-error review because no binding authority clearly established that the statute was unconstitutional.
- The panel affirmed the convictions through ordinary disposition rather than granting the government’s request for summary affirmance.
Why It Matters
The decision reinforces that defendants raising unpreserved constitutional challenges face a demanding plain-error standard, particularly when neither the Supreme Court nor published circuit precedent has resolved the issue in their favor.
Although unpublished and therefore not controlling precedent, the opinion indicates that, absent contrary binding authority, Bruen does not provide a basis for plain-error relief from a § 924(c)(1)(A) conviction in the Fifth Circuit.