United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60294

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee,

versus

Ronald Harris Cuevas, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:21-CR-145-1

______________________________

Before Higginbotham, Stewart, and Southwick, Circuit Judges.

Per Curiam:*

Ronald Harris Cuevas pled guilty to one count of being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In his written 

plea agreement, Cuevas expressly waived the right to appeal his conviction 

or sentence on any grounds and reserved only the right to bring an ineffective 

assistance of counsel claim. The district court accepted Cuevas’s guilty plea

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 26, 2024

Lyle W. Cayce

Clerk

Case: 23-60294 Document: 00517046574 Page: 1 Date Filed: 01/26/2024
No. 23-60294

2

and sentenced him to a 120-month imprisonment term and three years of 

supervised release. Cuevas did not object to the constitutionality of Section 

922(g)(1) before the district court. The court granted Cuevas’s 28 U.S.C. 

§ 2255 motion to file an out-of-time appeal. Following an extension, Cuevas 

timely filed a notice of appeal. See Fed. R. App. P. 4(b)(4). The 

Government subsequently filed a motion to dismiss, or alternatively for 

summary affirmance. Summary affirmance is GRANTED.

Cuevas argues that Section 922(g)(1) is unconstitutional under the 

Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 

U.S. 1 (2022), and our subsequent ruling in United States v. Rahimi, 61 F.4th 

443 (5th Cir.), cert. granted, 143 S. Ct. 2688 (2023). Cuevas argues Bruen and 

Rahimi render his plea agreement, including the appeal waiver, 

unenforceable under the Second Amendment. Thus, effectuating Cuevas’s

appeal waiver would constitute a miscarriage of justice.

Cuevas raises this constitutional challenge for the first time on appeal. 

We therefore review it for plain error. United States v. Fernandez, 559 F.3d 

303, 316 (5th Cir. 2009). An appeal waiver is considered valid “if the 

defendant indicates that he read and understood the agreement and the 

agreement contains an explicit, unambiguous waiver.” United States v. Kelly, 

915 F.3d 344, 348 (5th Cir. 2019) (quoting United States v. Keele, 755 F.3d 

752, 754 (5th Cir. 2014)). Constitutional rights can be waived as part of 

appeal waivers, United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 

2011), but the waiver will not be enforced if the language is “insufficient to 

accomplish an intelligent waiver of the right not to be prosecuted (and 

imprisoned) for conduct that does not violate the law,” United States v. 

White, 258 F.3d 374, 380 (5th Cir. 2001).

In his plea agreement, Cuevas “expressly” waived the “right to 

appeal [his] conviction and sentence imposed in this case, or the manner in 

Case: 23-60294 Document: 00517046574 Page: 2 Date Filed: 01/26/2024
No. 23-60294

3

which that sentence was imposed, on the grounds set forth in [18 U.S.C. 

§] 3742, or on any ground whatsoever.” This waiver does not expressly bar 

or except a challenge to the constitutionality of Section 922(g)(1), but that is 

of no consequence here under plain error review because applying Bruen

would not establish an “error, that is plain, and that affects [Cuevas’s] 

substantial rights.” Fernandez, 559 F.3d at 316.

For a legal error to be plain, it “must be clear or obvious, rather than 

subject to reasonable debate.” Jimenez v. Wood Cnty., 660 F.3d 841, 847 (5th 

Cir. 2011) (citation omitted). A“lack of binding authority is often dispositive 

in the plain-error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th 

Cir. 2015). Further, the error must be considered “clear under current law.” 

United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (citation and 

emphasis omitted). “An error is not plain under current law if a defendant’s 

theory requires the extension of precedent.” Id. (quotation marks and 

citation omitted).

In Bruen, the Supreme Court articulated a new test for assessing the 

constitutionality of a statute under the Second Amendment. See 597 U.S. at 

17, 24–25. This court extended Bruen to a preserved Second Amendment 

challenge to 18 U.S.C. § 922(g)(8), which bans the possession of firearms by 

a person subject to a domestic violence restraining order. Rahimi, 61 F.4th at 

448. However, neither Bruen nor Rahimi dictates such a result for Section 

922(g)(1), and thislack of binding authority is dispositive. Gonzales, 792 F.3d 

at 538. Indeed, we have rejected similar unpreserved Second Amendment 

challengesto Section 922(g)(1) based on Bruen. See, e.g., United States v. Roy, 

No. 22-10677, 2023 WL 3073266 (5th Cir. Apr. 25, 2023); United States v. 

Pickett, No. 22-11006, 2023 WL 3193281 (5th Cir. May 2, 2023).

Summary affirmance GRANTED.

Case: 23-60294 Document: 00517046574 Page: 3 Date Filed: 01/26/2024