Case: 22-50848 Document: 00517032338 Page: 1 Date Filed: 01/12/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50848 Summary Calendar FILED ____________ January 12, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Pedro Saenz-Nolan, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-45-1 ______________________________ Before Higginbotham, Stewart, and Southwick, Circuit Judges.

Per Curiam: * Pedro Saenz-Nolan pled guilty to possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 120 months imprisonment and three years of supervised release.

Saenz-Nolan now appeals his guilty plea conviction. We AFFIRM.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

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Saenz-Nolan raises two arguments challenging the constitutionality of Section 922(g)(1). He concedes not having raised these arguments below and that plain error review applies. United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Plain error requires the district court’s error be “clear or obvious” and affect the defendant’s substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the defendant makes such a showing, we may exercise our discretion to remedy the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quo- tation marks and citations omitted).

Saenz-Nolan argues Section 922(g)(1) is unconstitutional because it exceeds the scope of Congress’s powers under the Commerce Clause. This argument is foreclosed by circuit precedent. See United States v. Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013).

Saenz-Nolan also challenges the constitutionality of Section 922(g)(1) under the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Under the Bruen test, “when the Second Amend- ment’s plain text covers an individual’s conduct, the Constitution presump- tively protects that conduct. . . . the government must [then] demonstrate that the regulation is consistent with this Nation’s historical tradition of fire- arm regulation.” Id. at 17. Saenz-Nolan argues that Section 922(g)(1) fails this test.

This court has not determined whether Section 922(g)(1) is constitu- tional under Bruen. Even so, an error is not clear or obvious where an issue is disputed or unresolved, or where there is an absence of controlling author- ity. See United States v. Rodriguez-Parra, 581 F.3d 227, 230–31 (5th Cir. 2009). Indeed, “a lack of binding authority is often dispositive in the plain error context.” United States v. McGavitt, 28 F.4th 571, 577 (5th Cir. 2022) (citation omitted). “[E]ven where an argument merely requires extending

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existing precedent, the district court’s failure to do so cannot be plain error.” Id. (citation omitted). Accordingly, Saenz-Nolan cannot succeed in showing that his guilty plea conviction was a clear or obvious error. Rodriguez-Parra, F.3d at 230–31.

AFFIRMED.