Case: 23-10539 Document: 58-1 Page: 1 Date Filed: 02/23/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10539
FILED
February 23, 2024
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Austin Drake Day,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:22-CR-125-1
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
Austin Drake Day challenges his guilty-plea conviction, pursuant to a
written plea agreement, for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) (prohibiting felon in possession of
firearm), 924(a)(8) (outlining maximum penalty). He contends for the first
time on appeal that: the court misconstrued § 922(g)(1); the provision
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10539
violates the Second Amendment; and, as a result, the court plainly erred in
accepting his plea.
Day (as he also concedes) did not raise these issues in district court.
The failure to preserve a claim in district court results in review’s being only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Day must show a forfeited plain error (clear-or-
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct the reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. (citation omitted).
Day first asserts: § 922(g)(1) requires more than a showing that the
firearm he possessed traveled in interstate commerce; in the alternative,
§ 922(g)(1) is unconstitutional because it exceeds Congress’ power to
regulate interstate commerce. Day acknowledges our precedent forecloses
his assertions. E.g., United States v. Rawls, 85 F.3d 240, 242–43 (5th Cir.
1996) (“The ‘in or affecting commerce’ element can be satisfied if the
firearm possessed by a convicted felon had previously traveled in interstate
commerce.”); United States v. Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013)
(maintaining “§ 922(g)(1) is a valid exercise of Congress’s authority under
the Commerce Clause”). As a result, he raises the issues to preserve them
for possible further review.
Second, Day contends § 922(g)(1) infringes the Second Amendment
under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022)
(outlining test for assessing whether statute infringes Second Amendment).
Our court has rejected the same contention under plain-error review. E.g.,
United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023).
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No. 23-10539
Last, Day maintains, in the light of his challenges (the claimed errors)
supra, the district court misadvised him of the nature of his offense and
erroneously accepted the factual basis for his guilty plea; in violation of
Federal Rule of Criminal Procedure 11(b)(1)(G), (b)(3), respectively.
Because our court rejects Day’s underlying challenges, he does not show the
requisite clear-or-obvious error.
AFFIRMED.
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