United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-10795 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Shaquille Dewayne Smith, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 2:22-CR-18-1 

______________________________ 

Before Jones, Stewart, and Duncan, Circuit Judges.

Per Curiam:*

Shaquille Dewayne Smith (“Smith”) appeals his guilty plea 

conviction and sentence for possession of a firearm by a felon. See 18 U.S.C. 

§ 922(g)(1). Because he fails to demonstrate that his guilty plea was invalid 

or that § 922(g)(1) is unconstitutional, we AFFIRM. 

_____________________ 

*

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

United States Court of Appeals 

Fifth Circuit 

FILED 

September 8, 2023 

Lyle W. Cayce 

Clerk 

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No. 22-10795 

2 

I. FACTUAL & PROCEDURAL BACKGROUND 

In 2016, Smith was sentenced to five years in prison after pleading 

guilty in state court to two felony offenses: (1) evading arrest in a motor 

vehicle1

, and (2) taking a weapon from a peace officer.2 In 2022, a few months 

before completing parole for both convictions, Smith was stopped by police 

officers for a traffic violation. During the stop, officers saw a firearm on the 

passenger’s seat and arrested and charged Smith for being a felon in 

possession of a firearm. See id. Subsequently, a grand jury indicted Smith as 

charged. 

 Pursuant to a written plea agreement, Smith pleaded guilty to 

possession of a firearm by a felon, in violation of § 922(g)(1). As part of the 

plea agreement, Smith waived his right to appeal or collaterally challenge his 

conviction or sentence, with the exception of a sentence imposed in excess of 

the statutory maximum or resulting from an arithmetic error. He further 

waived his right to challenge the voluntariness of his plea or waiver, or to 

bring claims of ineffective assistance of counsel. The district court accepted 

the plea agreement, and sentenced Smith to 60 months of imprisonment, 

followed by a one-year term of supervised release. Smith timely appealed. 

II. STANDARD OF REVIEW 

Because Smith did not raise a constitutional challenge, or otherwise 

object to his conviction and sentence before the district court, we review for 

plain error. “Plain error is clear or obvious error that affects substantial rights 

of the defendant and seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Sanchez, 325 F.3d 600, 

_____________________ 

1 See Tex. Penal Code Ann. § 38.04. 

2 See Tex. Penal Code Ann. § 38.14. 

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603 (5th Cir. 2003) (internal quotation marks omitted). To demonstrate plain 

error, Smith must show that: (1) an error occurred, (2) the error is clear and 

obvious, and (3) the error affected his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). Upon making such a showing, this court has 

the discretion to remedy the error only if it “seriously affect[s] the fairness, 

integrity, or public reputation of judicial proceedings.” United States v. 

Atkinson, 297 U.S. 157, 160 (1936). Where an issue is disputed or unresolved, 

or where there is an absence of controlling authority, there can be no clear or 

obvious error. United States v. Rodriguez-Parra, 581 F.3d 227, 230–31 (5th 

Cir. 2009). 

III. DISCUSSION 

On appeal, Smith advances two primary arguments to support his 

position that his guilty plea conviction is invalid. First, he argues that the facts 

to which he pleaded were insufficient to show the requisite interstate nexus. 

He further asserts that § 922(g) is unconstitutional because it does not have 

a substantial effect on interstate commerce and thus exceeds Congress’s 

authority under the Commerce Clause. Second, Smith argues that the 

Supreme Court’s recent decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 

142 S. Ct. 2111 (2022), supports a finding that § 922(g)(1) infringes upon his 

Second Amendment right to bear arms and is, therefore, unconstitutional. 

We are unpersuaded by either argument. 

A. § 922(g)(1) and the Commerce Clause 

As a preliminary matter, Smith rightly concedes that his first 

argument is foreclosed by Fifth Circuit precedent. United States v. Alcantar, 

733 F.3d 143, 145 (5th Cir. 2013) (concluding that this court is bound by prior 

precedent establishing that § 922(g)(1) is a valid exercise of Congress’s 

authority under the Commerce Clause). For this reason, we reject his nexus 

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and Commerce Clause arguments as meritless and do not discuss them 

further herein. 

B. Enforcement of the Appellate Waiver

Smith next argues that the Supreme Court’s decision in Bruen

supports his assertion that § 922(g)(1) is unconstitutional because it 

encroaches on an individual’s right to bear arms as guaranteed by the Second 

Amendment. The Government argues that Smith’s plain-error challenge to 

the constitutionality of § 922(g)(1) is waived by the terms of his appeal waiver 

in his plea agreement. Although the Government advances a compelling 

argument regarding the applicability of Smith’s appeal waiver, we 

nevertheless elect to evaluate his argument on the merits. See United States 

v. Douglas, No. 22-10385, 2023 WL 2264199 (5th Cir. Feb. 28, 2023). 

C. § 922(g)(1) and the Second Amendment Right to Bear Arms 

 Recall that to establish plain error, Smith must show a forfeited error 

that is clear or obvious and that affected his substantial rights. Puckett, 556 

U.S. at 135. This court then has the discretion, not the obligation, to correct 

the error, but “only if the error ‘seriously affect[s] the fairness, integrity, or 

public reputation of judicial proceedings.’” Id. (quoting United States v. 

Olano, 507 U.S. 725, 736 (1993)). An error is not clear or obvious where an 

issue is disputed or unresolved, or where there is an absence of controlling 

authority. Rodriguez-Parra, 581 F.3d at 230–31. 

In Bruen, the Supreme Court found that the State of New York’s 

public-carry licensing regime was unconstitutional because New York issued 

licenses “only when an applicant demonstrate[d] a special need for selfdefense,” thus preventing law-abiding citizens with ordinary self-defense 

needs from exercising their Second Amendment right to bear arms. Bruen, 

142 S. Ct. at 2122. Prior to the Court’s issuance of Bruen, this court and our 

sister circuits employed “a ‘two-step’ framework for analyzing Second 

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Amendment challenges that combine[d] history with means-end scrutiny.” 

Bruen, 142 S. Ct. at 2125. Under this framework, we first determined whether 

the challenged law impinged upon a right protected by the Second 

Amendment. Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016). If not, the 

law passed constitutional muster. Id. at 446–47. But if it did, we moved on to 

the second step which was to determine “whether to apply intermediate or 

strict scrutiny to the law, and then to determine whether the law survived the 

proper level of scrutiny.” Id. at 447. 

 In Bruen, the Court declined to adopt this two-step framework, 

instead opting to establish a new test for assessing the constitutionality of a 

statute under the Second Amendment. Bruen, 142 S. Ct. at 2125–26, 2129–

30. “When the Second Amendment’s plain text covers an 

individual’s conduct, the Constitution presumptively protects that conduct. 

The [G]overnment must then justify its regulation by demonstrating that it 

is consistent with the Nation’s historical tradition of firearm regulation.” Id. 

at 2129-30. Only if the Government meets its burden “may a court conclude 

that the individual’s conduct falls outside the Second Amendment’s 

‘unqualified command.’” Id. at 2130 (internal citation omitted). 

Prior to Bruen, this court routinely rejected Second Amendment 

challenges to § 922(g)(1). See, e.g., United States v. Darrington, 351 F.3d 632, 

633–34 (5th Cir. 2003); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 

2001); United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995). We recently 

stated on de novo review, however, that “Bruen clearly fundamentally 

change[d] our analysis of laws that implicate the Second Amendment” and 

rendered our previously adopted two-step framework precedent “obsolete.” 

United States v. Rahimi, 61 F.4th 443, 450–61 (5th Cir.), cert. granted, 143 

S.Ct. 2688 (2023) (citation omitted) (internal quotation marks omitted). Our 

reasoning in Rahimi demonstrated our analytical shift after the Bruen 

decision. Relying on the Bruen framework, we held in Rahimi that § 

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922(g)(8), which bans the possession of a firearm by a person subject to a 

domestic violence restraining order, was unconstitutional. Id. at 450–51. 

Here, Smith argues that Bruen supports his assertion that Congress 

exceeded its powers by enacting § 922(g)(1), thus rendering it 

unconstitutional under the Second Amendment. He further contends that 

the district court’s failure to advise him on § 922(g)(1)’s unconstitutional 

infringement constituted reversible error. Nevertheless, he concedes in his 

reply brief on appeal that he cannot show clear or obvious error at this time. 

We agree. 

Post Bruen, the Eighth Circuit recently concluded that § 922(g)(1) 

remains constitutional when applied to convicted felons. United States v. 

Jackson, 69 F.4th 495, 502 (8th Cir. 2023). Likewise, this court recently held 

in an unpublished opinion that, in the absence of binding precedent postBruen—§ 922(n)’s prohibition of the possession of firearms while under 

indictment—“is not consonant with a finding of plain error.” United States 

v. Avila, No. 22-50088, 2022 WL 17832287, at *2 (5th Cir. Dec. 21, 2022) 

(per curiam). Moreover, in another unpublished opinion, a panel of this court 

observed that “there is no binding precedent explicitly holding that § 

922(g)(1) is unconstitutional on its face.” United States v. Garza, 22-51021, 

2023 WL 4044442, at *1 (5th Cir. June 15, 2023) (per curiam). 

Consequently, given the lack of binding authority deeming § 922(g)(1) 

unconstitutional, Smith cannot demonstrate an error that is clear or obvious. 

Rodriguez-Parra, 581 F.3d at 230–31. Accordingly, we hold that the district 

court did not plainly err by accepting Smith’s guilty plea. 

IV. CONCLUSION 

For the foregoing reasons, the district court’s judgment is 

AFFIRMED. 

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