Case: 21-50896 Document: 00516246856 Page: 1 Date Filed: 03/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-50896 FILED
March 21, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Salvador Lerma,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-104-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Salvador Lerma was convicted of possession of a firearm by a
convicted felon and sentenced within the applicable guidelines range to 115
months of imprisonment, to be followed by three years of supervised release.
The district court also revoked Lerma’s supervised release, imposed
*
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opinion should not be published and is not precedent except under the limited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: 21-50896 Document: 00516246856 Page: 2 Date Filed: 03/21/2022
No. 21-50896
pursuant to his 2015 conviction of possession of marijuana with intent to
distribute, and sentenced him to 24 months of imprisonment.
To the extent Lerma seeks to challenge his revocation sentence, he
did not file a notice of appeal from the revocation order. “An appeal
permitted by law as of right from a district court to a court of appeals may be
taken only by filing a notice of appeal with the district court within the time
allowed by Rule 4.” Fed. R. App. P. 3(a)(1). A notice of appeal is a
mandatory precondition to the exercise of this court’s appellate jurisdiction.
See id. In the absence of a notice of appeal, we lack jurisdiction to review
Lerma’s revocation sentence. The appeal is therefore DISMISSED IN
PART.
Lerma challenges his firearm sentence as procedurally unreasonable,
arguing that the district court failed to state its reasons for imposing his
sentence. We apply plain error review because Lerma did not object to the
procedural reasonableness of his sentence on this basis. See United States
v. Coto-Mendoza, 986 F.3d 583, 585-86 (5th Cir.), cert. denied, 142 S. Ct. 207
(2021). The district court’s reasons for the sentence sufficed “to satisfy the
appellate court that [the sentencing judge] has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
Lerma has therefore not demonstrated any error, plain or otherwise. See
Coto-Mendoza, 986 F.3d at 585-87.
Lerma also asserts that, under the analysis set forth in United States v.
Lopez, 514 U.S. 549 (1995), the statute of conviction, 18 U.S.C. § 922(g)(1),
exceeds the scope of Congress’s power under the Commerce Clause and is
therefore unconstitutional. He admits that this argument is foreclosed and is
only raised to preserve the issue for further review. See, e.g., United States v.
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Case: 21-50896 Document: 00516246856 Page: 3 Date Filed: 03/21/2022
No. 21-50896
De Leon, 170 F.3d 494, 499 (5th Cir. 1999). The felon-in-possession
judgment is therefore AFFIRMED.
3