United States v. Day

Case: 23-10539 Document: 58-1 Page: 1 Date Filed: 02/23/2024

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

No. 23-10539 FILED February 23, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus Austin Drake Day,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:22-CR-125-1 ______________________________

Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam: * Austin Drake Day challenges his guilty-plea conviction, pursuant to a written plea agreement, for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) (prohibiting felon in possession of firearm), 924(a)(8) (outlining maximum penalty). He contends for the first time on appeal that: the court misconstrued § 922(g)(1); the provision

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10539 Document: 58-1 Page: 2 Date Filed: 02/23/2024

No. 23-10539

violates the Second Amendment; and, as a result, the court plainly erred in accepting his plea. Day (as he also concedes) did not raise these issues in district court. The failure to preserve a claim in district court results in review’s being only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Day must show a forfeited plain error (clear-or- obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (citation omitted). Day first asserts: § 922(g)(1) requires more than a showing that the firearm he possessed traveled in interstate commerce; in the alternative, § 922(g)(1) is unconstitutional because it exceeds Congress’ power to regulate interstate commerce. Day acknowledges our precedent forecloses his assertions. E.g., United States v. Rawls, 85 F.3d 240, 242–43 (5th Cir. 1996) (“The ‘in or affecting commerce’ element can be satisfied if the firearm possessed by a convicted felon had previously traveled in interstate commerce.”); United States v. Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013) (maintaining “§ 922(g)(1) is a valid exercise of Congress’s authority under the Commerce Clause”). As a result, he raises the issues to preserve them for possible further review. Second, Day contends § 922(g)(1) infringes the Second Amendment under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (outlining test for assessing whether statute infringes Second Amendment). Our court has rejected the same contention under plain-error review. E.g., United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023).

Case: 23-10539 Document: 58-1 Page: 3 Date Filed: 02/23/2024

No. 23-10539

Last, Day maintains, in the light of his challenges (the claimed errors) supra, the district court misadvised him of the nature of his offense and erroneously accepted the factual basis for his guilty plea; in violation of Federal Rule of Criminal Procedure 11(b)(1)(G), (b)(3), respectively. Because our court rejects Day’s underlying challenges, he does not show the requisite clear-or-obvious error. AFFIRMED.