Case: 22-10677 Document: 00516724674 Page: 1 Date Filed: 04/25/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10677
Summary Calendar FILED
____________ April 25, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Mark Anthony Roy,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-216-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Mark Anthony Roy pleaded guilty to possession of a firearm after a
felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court sentenced him to 75 months of imprisonment and three years
of supervised release. Roy contends that § 922(g)(1) is unconstitutional.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10677 Document: 00516724674 Page: 2 Date Filed: 04/25/2023
No. 22-10677
Because Roy did not challenge the constitutionality of § 922(g) before
the district court, we review only for plain error. See United States v. Knowles,
29 F.3d 947, 950 (5th Cir. 1994). To show plain error, the appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant
makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
Roy argues that § 922(g) is unconstitutional because it exceeds
Congress’s power under the Commerce Clause. However, this argument is
foreclosed by United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013). See
United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).
Roy also asserts that the Supreme Court’s recent decision in New York
State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), suggests that
§ 922(g)(1) is unconstitutional. An error is not clear or obvious where an
issue is disputed or unresolved, or where there is an absence of controlling
authority. United States v. Rodriguez-Parra, 581 F.3d 227, 230-31 (5th Cir.
2009). In fact, “[e]ven where the argument requires only extending
authoritative precedent, the failure of the district court [to do so] cannot be
plain error.” Wallace v. Mississippi, 43 F.4th 482, 500 (5th Cir. 2022)
(internal quotation marks and citation omitted). Because there is no binding
precedent explicitly holding that § 922(g)(1) is unconstitutional and because
it is not clear that Bruen dictates such a result, Roy is unable to demonstrate
an error that is clear or obvious. See Rodriguez-Parra, 581 F.3d at 230-31.
AFFIRMED.
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