United States v. Hickcox ( 2023 )

Case: 22-50365 Document: 00516725161 Page: 1 Date Filed: 04/25/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50365
Summary Calendar FILED
____________ April 25, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Caleb Bryant Hickcox,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-361-1
______________________________
Before Jolly, Jones, and Ho, Circuit Judges.
Per Curiam: *
Caleb Bryant Hickcox pleaded guilty to possession of a firearm after a
felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court sentenced him to 63 months of imprisonment and three years
of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50365 Document: 00516725161 Page: 2 Date Filed: 04/25/2023
No. 22-50365
Hickcox argues that his § 922(g)(1) conviction is unconstitutional
under the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v.
Bruen, 142 S. Ct. 2111 (2022). Because Hickcox did not challenge the
constitutionality of § 922(g)(1) before the district court, we review only for
plain error. See United States v. Knowles, 29 F.3d 947, 950 (5th Cir. 1994).
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). An error is not clear or obvious where an issue is
disputed or unresolved, or where there is an absence of controlling authority.
United States v. Rodriguez-Parra, 581 F.3d 227, 230-31 (5th Cir. 2009). “Even
where the argument requires only extending authoritative precedent, the
failure of the district court [to do so] cannot be plain error.” Wallace v.
Mississippi, 43 F.4th 482, 500 (5th Cir. 2022) (internal quotation marks and
citation omitted). Because there is no binding precedent explicitly holding
that § 922(g)(1) is unconstitutional and because it is not clear that Bruen
dictates such a result, Hickcox is unable to demonstrate an error that is clear
or obvious. See Rodriguez-Parra, 581 F.3d at 230-31.
Hickcox also seeks to preserve the argument that § 922(g)(1) is
unconstitutional because it exceeds Congress’s power under the Commerce
Clause. As he concedes, this argument is foreclosed. See United States v. De
Leon, 170 F.3d 494, 499 (5th Cir. 1999); United States v. Perryman, 965 F.3d
424, 426 (5th Cir. 2020).
Finally, Hickcox argues that his 63-month sentence is substantively
unreasonable. Our review is for abuse of discretion. See Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766 (2020); Gall v. United States, 552 U.S. 38,
46-47, 49-51 (2007). Hickcox has not shown that the district court did not
account for a factor that should have received significant weight, gave
significant weight to an improper factor, or made a clear error in balancing
the sentencing factors. See United States v. Warren, 720 F.3d 321, 332 (5th
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Case: 22-50365 Document: 00516725161 Page: 3 Date Filed: 04/25/2023
No. 22-50365
Cir. 2013). The district court reviewed and adopted the presentence report,
considered Hickcox’s mitigating arguments, and determined that an above-
guidelines sentence was appropriate because of the nature and circumstances
of his offense. His argument that the district court should have weighed the
sentencing factors differently “is not a sufficient ground for reversal.”
United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016); see also United
States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017).
AFFIRMED.
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