United States v. Guillermo Fernandez

Case: 17-10765 Document: 00514343509 Page: 1 Date Filed: 02/09/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-10765 FILED Summary Calendar February 9, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

v.

GUILLERMO FERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-26-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM: * Guillermo Fernandez appeals following his guilty plea conviction of possession of a firearm by a convicted felon. Through counsel, Fernandez moves for summary disposition of his appeal; we may grant a motion for summary disposition when “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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-10765 Document: 00514343509 Page: 2 Date Filed: 02/09/2018

No. 17-10765

of the case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). He first asserts, relying on Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (NFIB), that 18 U.S.C. § 922(g)(1) is unconstitutional because it regulates conduct that falls outside of the Commerce Clause of the Constitution. We have rejected such a challenge, explaining that NFIB “did not address the constitutionality of § 922(g)(1), and it did not express an intention to overrule the precedents upon which our cases -- and numerous other cases in other circuits -- relied in finding statutes such as § 922(g)(1) constitutional.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). We have consistently upheld § 922(g)(1) as being “a valid exercise of Congress’s authority under the Commerce Clause.” Id. at 145. Thus, as Fernandez acknowledges, Alcantar forecloses his argument. Additionally, Fernandez contends, in reliance on Flores-Figueroa v. United States, 556 U.S. 646 (2009), that his indictment should have been dismissed because it failed to allege that he knew that the firearm he possessed had at some point traveled in interstate commerce. Under United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), a § 922(g)(1) conviction “requires proof that the defendant knew that he had received (or possessed or transported) a firearm but does not require proof that he knew that the firearm had an interstate nexus or that he was a felon.” United States v. Schmidt, 487 F.3d 253, 254 (5th Cir. 2007). We have determined that Dancy is still good law even after the Supreme Court’s decision in Flores-Figueroa, which addressed the mens rea element of a different statute. See United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009). In view of Rose, Fernandez’s contention is foreclosed, as he concedes.

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No. 17-10765

Accordingly, Fernandez’s unopposed motion for summary disposition is GRANTED, and the judgment is AFFIRMED.

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