USA v. Christopher Simmons, No. 18-10328 (5th Cir. 2018)

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Case: 18-10328 Document: 00514732470 Page: 1 Date Filed: 11/21/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-10328 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 21, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CHRISTOPHER DAVID SIMMONS, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-119-1 Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM: * Appealing his conviction for being a felon in possession of a firearm, Christopher David Simmons raises arguments that are foreclosed by United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013), and United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). The Government has filed an unopposed motion for summary affirmance. Summary affirmance is proper when, among other instances, “the position of one of the parties is clearly right Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 18-10328 Document: 00514732470 Page: 2 Date Filed: 11/21/2018 No. 18-10328 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 Alcantar, we rejected the argument that Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), affected our prior jurisprudence rejecting Commerce Clause challenges to the felon-in-possession statute (18 U.S.C. § 922(g)(1)). Alcantar, 733 F.3d at 146. In Trejo, we applied the plain error standard of review to a factual sufficiency claim that was raised for the first time in this court. Trejo, 610 F.3d at 313. Accordingly, the Government’s motion for summary affirmance is GRANTED, its alternative motion for extension of time is DENIED, and the judgment of the district court is AFFIRMED. 2

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