Case: 21-10679 Document: 00516259962 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 21-10679
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Deven Oran Bomar,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-115-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Deven Oran Bomar pleaded guilty to possession
of a firearm after a felony conviction. The district court calculated his base
offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based on his prior
conviction of assault under Texas Penal Code § 22.01(b)(2)(B). The court
*
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opinion should not be published and is not precedent except under the limited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: 21-10679 Document: 00516259962 Page: 2 Date Filed: 03/30/2022
No. 21-10679
employed an upward variance to sentence Bomar to 84 months of
imprisonment followed by three years of supervised release. For the first time
on appeal, he contends that the district court erred by characterizing his prior
assault conviction as a crime of violence and enhancing his base offense level
pursuant to § 2K2.1(a)(4)(A) in light of Borden v. United States, 141 S. Ct.
1817 (2021).
We review for plain error because Bomar did not preserve this
argument. See Puckett v. United States, 556 U.S. 129, 135 (2009). The
Government concedes that Bomar has established the first two prongs of
plain error review. See United States v. Greer, 20 F.4th 1071, 1075 (5th Cir.
2021). But he fails to show that the error affected his substantial rights
because the district court explained why it imposed the sentence and stated
that it would have imposed the same sentence regardless of any errors in
calculating the guidelines range. See Puckett, 556 U.S. at 135; Molina-Martinez
v. United States, 578 U.S. 189, 200-01 (2016); see also United States v. Sanchez-
Hernandez, 931 F.3d 408, 411-12 (5th Cir. 2019).
Bomar also challenges his conviction on the ground that 18 U.S.C.
§ 922(g)(1) is unconstitutional, both on its face and as applied to him, because
the statute exceeds the scope of Congress’s authority under the Commerce
Clause. He also contends that the factual basis was insufficient to support his
conviction because it did not include, as the mens rea element for the offense,
that he knew that his possession of the firearm was in or affecting interstate
commerce. However, Bomar acknowledges that these challenges are
foreclosed. See Rehaif v. United States, 139 S. Ct. 2191, 2194-96 (2019); United
States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013).
AFFIRMED.
2
United States v. Bomar
Combined Opinion