Background
Lewis Green, III, appealed his convictions for possessing a firearm after a felony conviction under 18 U.S.C. § 922(g)(1) and possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c)(1)(A).
Relying on New York State Rifle & Pistol Ass’n, Inc. v. Bruen, Green argued for the first time on appeal that § 924(c)(1)(A) and § 922(g)(1) violated the Second Amendment as applied to him and that § 922(g)(1) was facially unconstitutional. He also argued that § 922(g)(1) exceeded Congress’s Commerce Clause power. Green conceded that the court could review these unpreserved claims only for plain error. The government sought summary affirmance or, alternatively, more time to brief the merits.
The Court’s Holding
The Fifth Circuit affirmed Green’s convictions. It held that circuit precedent foreclosed his facial and as-applied Second Amendment challenges to § 922(g)(1), as well as his Commerce Clause challenge to that statute.
The court also held that Green failed to establish plain error as to § 924(c)(1)(A). Neither the Supreme Court nor a published Fifth Circuit opinion had resolved the statute’s constitutionality after Bruen, while an unpublished Fifth Circuit decision had rejected a similar plain-error claim and multiple other circuits had rejected post-Bruen Second Amendment challenges to § 924(c)(1). The court nevertheless denied the government’s motion for summary affirmance and denied its alternative extension request as unnecessary.
Key Takeaways
- Existing Fifth Circuit precedent foreclosed Green’s Second Amendment and Commerce Clause challenges to the felon-in-possession statute.
- An unsettled post-Bruen challenge to § 924(c)(1) did not establish the clear or obvious error required under plain-error review.
- The court resolved the merits and affirmed the convictions while declining the government’s request for summary affirmance.
Why It Matters
The decision confirms that defendants raising unpreserved post-Bruen challenges in the Fifth Circuit face the demanding plain-error standard. Where binding law does not clearly establish that a firearm statute is unconstitutional—and persuasive authority points the other way—the challenge will not support reversal on plain-error review.
The unpublished opinion also preserves a distinction between an appeal that fails under controlling standards and one suitable for summary affirmance: the panel affirmed Green’s convictions but declined to characterize the government’s position as warranting that abbreviated disposition.