Case: 21-50127 Document: 00516151218 Page: 1 Date Filed: 01/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-50127 January 3, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesse Dean Mince,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-230-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Jesse Dean Mince was convicted by a jury of possession of a firearm
by a felon and sentenced at the top of the advisory guidelines range to 51
months of imprisonment and three years of supervised release. He argues
that 18 U.S.C. § 922(g)(1), the statute of conviction, exceeds the scope of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50127 Document: 00516151218 Page: 2 Date Filed: 01/03/2022
No. 21-50127
Congress’s power under the Commerce Clause and is thus unconstitutional.
He concedes that his claim is foreclosed by circuit precedent, and he raises
the issue to preserve it for further review. The Government has filed an
unopposed motion for summary affirmance and an alternative request for an
extension of time to file its brief.
Summary affirmance is proper if “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). Mince’s challenge to the constitutionality of § 922(g)(1)
is foreclosed. See United States v. Alcantar, 733 F.3d 143, 145-46 (5th
Cir. 2013); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001);
United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
Thus, the Government’s unopposed motion for summary affirmance
is GRANTED. The Government’s alternative motion for an extension of
time to file an appellate brief is DENIED. The district court’s judgment is
AFFIRMED. Mince’s motion to dismiss his counsel and to proceed pro se
is DENIED as untimely. See United States v. Wagner, 158 F.3d 901, 902-03
(5th Cir. 1998).
2