United States v. Lovings

Case: 23-50653 Document: 64-1 Page: 1 Date Filed: 04/16/2024

United States Court of Appeals for the Fifth Circuit

_____________

United States Court of Appeals

Fifth Circuit

No. 23-50653 consolidated with FILED

No. 23-50656 April 16, 2024 _____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Travis Wayne Lovings,

Defendant—Appellant.

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Appeal from the United States District Court for the Western District of Texas USDC Nos. 7:20-CR-199-1, 7:23-CR-27-1 ______________________________

Before Higginson, Ho, and Engelhardt, Circuit Judges.

Per Curiam: *

Travis Wayne Lovings challenges his guilty-plea conviction and sentence for possession of a firearm by a convicted felon. 1 He argues that 18 U.S.C. § 922(g)(1) is unconstitutional because it violates the Second Case: 23-50653 Document: 64-1 Page: 2 Date Filed: 04/16/2024

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Amendment in view of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). As Lovings concedes, because he did not raise this issue in the district court, review is for plain error only. See United States v. Jones, 88 F.4th 571, 572 (5th Cir. 2023) (per curiam), cert. denied, No. 23-6769, 2024 WL 1143799 (U.S. Mar. 18, 2024). He also argues that § 922(g)(1) is unconstitutional because it exceeds the power of Congress under the Commerce Clause or, in the alternative, that the statute should be construed to require a closer connection to interstate commerce than alleged or admitted in this case. However, as he correctly concedes, this argument is foreclosed. See Jones, 88 F.4th at 573; United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).

The Government has filed an opposed motion for summary affirmance based on Jones, asserting that Lovings’s plain-error challenges to the constitutionality of § 922(g)(1) based on Bruen and under the Commerce Clause are foreclosed by binding precedent. Lovings responded that summary affirmance is not appropriate because Jones did not explicitly state that the issue of whether § 922(g)(1) violated the Second Amendment in light of Bruen was foreclosed on plain-error review, merely that any error was not plain given the unsettled law and lack of binding precedent.

Summary affirmance is appropriate if “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). In Jones, we considered whether § 922(g)(1) violated the Second Amendment in light of Bruen and concluded Jones had “failed to demonstrate that the district court’s application of § 922(g)(1) constitutes plain error.” Jones, 88 F.4th at 574; see id. at 572-74. Lovings’s argument is foreclosed by Jones, and his refusal to concede the point does not preclude summary affirmance. See, e.g., Groendyke Transp., Case: 23-50653 Document: 64-1 Page: 3 Date Filed: 04/16/2024

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406 F.2d at 1160 n.2 (summarily disposing of the case despite “strenuous” opposition).

Accordingly, the motion for summary affirmance is GRANTED, and the judgments of the district court are AFFIRMED. The Government’s alternative motion to view sealed documents and for an extension of time is DENIED.