Case: 18-50593 Document: 00514942605 Page: 1 Date Filed: 05/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-50593 May 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDREW HIDALGO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:17-CR-591-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Andrew Hidalgo appeals his guilty plea conviction of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He relies on
United States v. Lopez, 514 U.S. 549 (1995), to argue that § 922(g)(1)
unconstitutionally extends federal control to the mere non-commercial
possession of a firearm. Hidalgo contends that a felon’s possession of a firearm,
like possession of a firearm near a school, the offense at issue in Lopez, does
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50593 Document: 00514942605 Page: 2 Date Filed: 05/03/2019
No. 18-50593
not have a sufficient nexus to interstate commerce. He concedes, however, that
his argument is foreclosed by circuit precedent, and he raises the issue to
preserve it for Supreme Court review.
The Government has filed an unopposed motion for summary
affirmance; in the alternative, it requests an extension of time to file its brief.
The Government agrees with Hidalgo that, under circuit precedent, Hidalgo’s
challenge to the constitutionality of § 922(g)(1) is foreclosed. Summary
affirmance is proper where, among other instances, “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 of the case . . . .” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
“This court has repeatedly emphasized that the constitutionality of
§ 922(g)(1) is not open to question.” United States v. De Leon, 170 F.3d 494,
499 (5th Cir. 1999); see United States v. Alcantar, 733 F.3d 143, 146 (5th Cir.
2013). In United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996), we rejected
a challenge to the constitutionality of § 922(g)(1) on the basis that neither the
holding nor the reasoning in Lopez constitutionally invalidates § 922(g)(1).
In view of the foregoing, the Government’s motion for summary
affirmance is GRANTED. The Government’s alternative motion for an
extension of time to file a brief is DENIED AS MOOT. The judgment of the
district court is AFFIRMED.
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