Case: 23-50506 Document: 109-1 Page: 1 Date Filed: 06/05/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-50506 FILED June 5, 2025 ____________ Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Zuley Jaczel Melendrez-Machado, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:22-CR-634-1 ______________________________ Before Stewart, Dennis, and Haynes, Circuit Judges.

Per Curiam: * After a bench trial, the district court found Zuley Jaczel Melendrez- Machado guilty of unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Melendrez-Machado timely appeals, raising three constitutional challenges. Because our precedents foreclose his challenges, we AFFIRM.

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

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I Melendrez-Machado has three prior Texas convictions for felony theft. Tex. Penal Code §§ 31.03(e)(3), (e)(4)(D). For the first two felony thefts, Melendrez-Machado received concurrent terms of forty days imprisonment, and for the third he received two years imprisonment suspended for three years of probation.

While on felony state probation, he re-entered the United States from Mexico and, at a checkpoint, border patrol agents referred his vehicle to a secondary inspection for a search. Agents discovered a lockbox in the vehicle with a nine-millimeter, semi-automatic pistol and two loaded, nine- millimeter magazines. A grand jury indicted him for unlawfully possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Melendrez- Machado moved to dismiss the indictment, arguing that § 922(g)(1) violates the Second Amendment both facially and as applied to him. The district court denied the motion and after a bench trial, found Melendrez-Machado guilty. Melendrez-Machado timely appeals.

II Melendrez-Machado raises three constitutional challenges on appeal: (1) whether § 922(g)(1) is facially unconstitutional; (2) whether § 922(g)(1) is unconstitutional as applied to him; and (3) whether § 922(g)(1) exceeds Congress’ powers under the Commerce Clause.

Our review of the first two challenges is de novo, as he preserved both his facial and as-applied challenges to § 922(g)(1) by raising both in his motion to dismiss the indictment and again at trial. See United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014) (citing United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009)). As Melendrez-Machado acknowledges, his Commerce Clause argument is raised for the first time on appeal and is

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subject to plain error review. Puckett v. United States, 556 U.S. 129, 135 (2009).

Regardless, all three challenges are foreclosed by our precedent.

United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024), petition for cert. filed, (Feb. 18, 2025) (No. 24-6625), (foreclosing post-Bruen 1 Second Amendment facial challenges to § 922(g)(1)); United States v. Alcantar, 733 F.3d 143, 145– (5th Cir. 2013) (foreclosing an identical Commerce Clause challenge to § 922(g)(1)). On the as-applied Second Amendment challenge specifically, our court recently held that “the Constitution allows the [G]overnment to disarm individuals who are carrying out criminal sentences.” United States v. Giglio, 126 F.4th 1039, 1043 (5th Cir. 2025); see also United States v. Contreras, 125 F.4th 725, 732–33 (5th Cir. 2025) (holding that “we have a history and tradition of punishing felons quite harshly, including taking away their weapons while they complete their sentence”). As explained in Giglio, “disarmament was a typical condition of all manner of sentences,” and this historical “tradition is a match for both the ‘why’ and the ‘how’ of disarming felons who are still serving out sentences.” 126 F.4th at 1044 (first citing Contreras, 125 F.4th at 732–33; and then citing Rahimi, 602 U.S. at 692). In so deciding, we joined the Third and Sixth Circuits in holding that § 922(g)(1) is constitutional when applied to a defendant who is still completing a criminal sentence. United States v. Moore, 111 F.4th 266, 269– (3d Cir. 2024); United States v. Goins, 118 F.4th 794, 801–02 (6th Cir. 2024). Because Melendrez-Machado was still serving a criminal sentence for his state-law felony theft conviction—probation—when he unlawfully possessed a firearm, § 922(g)(1) is constitutional as applied to him. 2 _____________________ New York Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

Additionally, Diaz recognized the historical tradition of severely punishing those convicted of theft. 116 F.4th at 469–70. Although the predicate offense in Diaz was car

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III For the foregoing reasons, we AFFIRM the district court’s judgment of conviction.

_____________________ theft, as opposed to felony theft, Diaz further supports that § 922(g)(1) is constitutional as applied to Melendrez-Machado.