IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10450

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL DEMON NIXON,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-189-1

Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Michael Demon Nixon appeals his above-guidelines 105-month sentence 

on his guilty plea conviction for being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). In support of his guilty plea, he stipulated 

that he possessed a pistol that had previously been shipped and transported in 

interstate and foreign commerce. Now on appeal, he argues for the first time 

that his guilty plea was not supported by a sufficient factual basis to establish 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 16, 2019

Lyle W. Cayce

Clerk

 Case: 18-10450 Document: 00514798376 Page: 1 Date Filed: 01/16/2019
No. 18-10450

2

a violation of § 922(g)(1) because that statute should be construed to reach only 

firearms that moved in interstate commerce in response to the defendant’s 

conduct or in the recent past. Nixon concedes that his challenge to the 

sufficiency of his factual basis is foreclosed by this court’s decision in United 

States v. Fitzhugh, 984 F.2d 143, 145-46 (5th Cir. 1993), but he suggests that 

his proposed construction of § 922(g)(1) is supported by the Supreme Court’s 

decision in Bond v. United States, 572 U.S. 844 (2014), and he wishes to 

preserve the issue for further review. 

Federal Rule of Criminal Procedure 11(b)(3) “requires a district court 

taking a guilty plea to make certain that the factual conduct admitted by the 

defendant is sufficient as a matter of law to establish a violation of the statute 

to which he entered his plea.” United States v. Trejo, 610 F.3d 308, 313 (5th 

Cir. 2010). Although Nixon argues that an unpreserved objection to the 

sufficiency of the factual basis for his guilty plea should not be subject to plainerror review, he concedes that this court has held to the contrary. See id.

In Fitzhugh, 984 F.2d at 146, this court rejected an indistinguishable 

challenge to the sufficiency of a factual basis, concluding that “a convicted 

felon’s possession of a firearm having a past connection to interstate commerce 

violates § 922(g)(1).” The Supreme Court’s decision in Bond did not address 

§ 922(g)(1) or abrogate this holding. See Bond, 572 U.S. at 848; see also United 

States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (discussing this court’s rule 

of orderliness). As Nixon concedes, the district court’s finding that there was 

a sufficient factual basis for his guilty plea was not a clear or obvious error in 

light of this case law. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

The judgment of the district court is AFFIRMED. The Government’s motions 

for summary affirmance and, alternatively, for an extension of time to file an 

appellate brief are DENIED.

 Case: 18-10450 Document: 00514798376 Page: 2 Date Filed: 01/16/2019