United States v. Lorenzo Hale ( 2019 )

Case: 18-11157 Document: 00514876727 Page: 1 Date Filed: 03/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11157 FILED
Summary Calendar March 18, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LORENZO HALE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:18-CR-6-1
Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Lorenzo Hale appeals his guilty plea conviction for being a felon in
possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The Government
moves for summary affirmance and, alternatively, for an extension of time to
file its brief.
Hale correctly acknowledges that United States v. Alcantar, 733 F.3d
143, 145-46 (5th Cir. 2013), forecloses his first argument, based on National
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11157 Document: 00514876727 Page: 2 Date Filed: 03/18/2019
No. 18-11157
Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (NFIB),
that § 922(g) is unconstitutional facially and as applied to him because it
regulates conduct that falls outside of the Government’s power to regulate
commerce. As we explained, NFIB “did not address the constitutionality of
§ 922(g)(1), and it did not express an intention to overrule the precedents upon
which our cases—and numerous other cases in other circuits—relied in finding
statutes such as § 922(g)(1) constitutional.” Alcantar, 733 F.3d at 146.
In addition, Hale correctly concedes that we have rejected his second
argument, based on Flores-Figueroa v. United States, 556 U.S. 646 (2009), that
the factual basis did not establish that he knew that his possession of the
firearm was in or affecting interstate commerce. Under United States v.
Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), a § 922(g)(1) conviction “requires
proof that the defendant knew that he had received (or possessed or
transported) a firearm but does not require proof that he knew that the firearm
had an interstate nexus.” United States. v. Schmidt, 487 F.3d 253, 254 (5th
Cir. 2007). Hale asserts that his argument is foreclosed by United States v.
Rose, 587 F.3d 695 (5th Cir. 2009), which was decided after Flores-Figueroa.
Indeed, in Rose, 587 F.3d at 705-06, we determined that Dancy remains good
law even after Flores-Figueroa.
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED, and its motion to dismiss and
its alternative motion for an extension of time are DENIED as unnecessary.
2