Case: 23-40134 Document: 00517060719 Page: 1 Date Filed: 02/08/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 8, 2024
No. 23-40134
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Julio Cesar Reyna,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:21-CR-62-1
______________________________
Before Higginbotham, Smith, and Higginson, Circuit Judges.
Per Curiam:*
Julio Cesar Reyna was arrested, while on probation, during a Decem-
ber 27, 2020 traffic stop of a car in which he was a passenger. Arresting offic-
ers observed the driver and Reyna with a bag of marijuana between them.
Upon search of the vehicle, which was registered to Reyna, they found under
the passenger seat a Ruger semiautomatic, .380 caliber pistol alongside a
magazine with eight rounds of .380 caliber ammunition. A record check on
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40134
the firearm showed that it had been reported stolen in Plano, Texas, in 2018.
On May 16, 2022 Reyna pleaded guilty, without a plea agreement, to posses-
sion of a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). On February
15, 2023 the district court sentenced Reyna to 120 months, an upward vari-
ance on the guidelines range of 30–37 months, citing a “greatly underre-
ported” criminal history and “complete lack of respect for the law.”
Reyna timely appealed, and his counsel filed a Motion to Withdraw as
Counsel and an Anders brief on June 7, 2023. Counsel stated that there were
no nonfrivolous issues for appeal regarding his guilty plea or sentence. Reyna
did not file a response to the motion. On August 31, 2023, this court issued
an order noting that counsel had not addressed whether there was a nonfriv-
olous issue on appeal as to whether Reyna’s § 922(g)(1) conviction violated
the Second Amendment under New York State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022), which had been decided in June 2022—after Reyna’s
guilty plea and before his sentencing. The court directed counsel to “file
within 30 days a supplemental Anders brief addressing the above issue or, in
the alternative, a brief on the merits addressing any nonfrivolous issues that
counsel deems appropriate.”
On September 14, 2023, counsel filed a supplemental Anders brief, in
which counsel averred that “[t]he firearm Mr. Reyna possessed was stolen
and based on his criminal history, counsel can discern there is no nonfrivo-
lous argument regarding Mr. Reyna’s conviction or sentence pursuant to
New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2002) [sic].”
Reyna did not file a response to the supplemental Anders brief, and the gov-
ernment has not filed any briefs in this appeal.
I.
2
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No. 23-40134
Because no Second Amendment challenge was preserved in the dis-
trict court, plain error review is appropriate here. See United States v. Howard,
766 F.3d 414, 419 (5th Cir. 2014) (reviewing unpreserved constitutional chal-
lenge to a federal statute for plain error). To show a plain error, there must
be a “deviation from a legal rule” that was not affirmatively waived by a de-
fendant. U.S. v. Olano, 507 U.S. 725, 732–33 (1993). The defendant must
demonstrate that the error was “clear or obvious, rather than subject to rea-
sonable dispute,” and this error “must have affected the appellant’s substan-
tial rights.” Puckett v. United States, 556 U.S. 129, 135 (2009). A court of ap-
peals has discretion to remedy such an error if it “seriously affects the fair-
ness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S.
at 736 (citation omitted).
II.
A recent published decision of this court, United States v. Jones,
squarely addresses the question of whether a defendant may prevail on a
Bruen challenge to 18 U.S.C. § 922(g)(1) on plain error review.1 Other un-
published opinions conduct the same analysis.2 In all cases, the answer is no.
This court consistently held § 922(g)(1) to be constitutional before Bruen,3
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1
88 F.4th 571 (5th Cir. 2023).
2
See, e.g., United States v. Roy, No. 22-10677, 2023 WL 3073266 (5th Cir. Apr. 25,
2023) (unpublished), cert. denied, 144 S.Ct. 234 (2023); United States v. Hickcox, No. 22-
50365, 2023 WL 3075054 (5th Cir. Apr. 25, 2023) (unpublished), cert. denied, 144 S.Ct. 237
(2023); United States v. Pickett, No. 22-11006, 2023 WL 3193281 (5th Cir. May 2, 2023)
(unpublished); United States v. Smith, No. 22-10795, 2023 WL 5814936 (5th Cir. Sept. 8,
2023) (unpublished); United States v. Racliff, No. 22-10409, 2023 WL 5972049 (5th Cir.
Sept. 14, 2023) (unpublished); United States v. EtchisonBrown, No. 22-10892, 2023 WL
7381451 (5th Cir. Nov. 7, 2023) (unpublished).
3
See, e.g., United States v. Darrington, 351 F.3d 632, 633–34 (5th Cir. 2003).
3
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No. 23-40134
and we have not reconsidered the issue in a properly preserved challenge
from a district court. Jones, 88 F.4th at 573. In properly preserved challenges,
the Third and Eighth Circuits have reached differing conclusions on the ap-
plicability of Bruen to the felon-in-possession statute.4 Furthermore, “[a]rgu-
ments that require the extension of existing precedent cannot meet the plain
error standard.” Id. at 574 (citing United States v. Cabello, 33 F.4th 281, 291
(5th Cir. 2022)).
Accordingly, we conclude that there is no plain error in the district
court’s conviction or sentencing of Reyna under § 922(g)(1).
AFFIRMED.
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4
Compare United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023) (holding
that “[t]he longstanding prohibition on possession of firearms by felons is constitutional”)
with Range v. Att’y Gen., 69 F.4th 96, 98–99 (3d Cir. 2023) (en banc) (holding that
petitioner, who had one felony conviction for making a false statement to obtain food
stamps, remained among “‘the people’ protected by the Second Amendment”).
4