IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11306

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE BRYAN GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CR-90-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. 

PER CURIAM:*

Jose Bryan Gonzalez appeals his guilty plea conviction for unlawfully 

receiving a firearm that has been shipped in interstate commerce while under 

indictment for a crime punishable by imprisonment for more than one year, in 

violation of 18 U.S.C. § 922(n) and punishable under 18 U.S.C. § 924(a)(1)(D). 

Gonzalez admitted to the factual resume, which stated that he received a 

Ruger pistol that had been shipped or transported in interstate commerce. 

 

* 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

July 3, 2019

Lyle W. Cayce

Clerk

 Case: 18-11306 Document: 00515020392 Page: 1 Date Filed: 07/03/2019
No. 18-11306

2

He contends that his guilty plea was not supported by a sufficient factual 

basis because his mere receipt of a firearm that had at some point been in 

interstate commerce without proof that he caused or knew of the interstate 

movement failed to establish a violation of § 922(n) that is punishable under 

§ 924(a)(1)(D). Gonzalez relies on Bond v. United States, 572 U.S. 844 (2014), 

and the word “willfully” in § 924(a)(1)(D). The Government moves for 

summary affirmance or, alternatively, for an extension of time to file a brief, 

asserting that Gonzalez’s argument is foreclosed by United States v. Fitzhugh, 

984 F.2d 143 (5th Cir. 1993), in which we held that “a convicted felon’s 

possession of a firearm having a past connection to interstate commerce 

violates [18 U.S.C.] § 922(g)(1).” Id. at 146. Gonzalez concedes that his 

argument is effectively foreclosed but raises it to preserve the issue for further 

review.

Summary affirmance is not appropriate in this case because the parties 

cite no binding authority addressing whether Fitzhugh applies to § 922(n). See

United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010). However, we 

may affirm the conviction without further briefing because, as Gonzalez 

concedes, no binding authority presently supports his reading of § 922(n) and 

§ 924(a)(1)(D). Moreover, we rejected such a reading of somewhat similar 

statutory language in Fitzhugh and in United States v. Dancy, 861 F.2d 77, 80-

82 (5th Cir. 1988). See United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 

2007); see also United States v. Ponce-Flores, 900 F.3d 215, 218-19 (5th Cir. 

2018). Gonzalez thus fails to show that the district court committed clear or 

obvious error. See United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).

The Government’s motions for summary affirmance and, alternatively, 

for an extension of time to file a brief are DENIED. The judgment is 

AFFIRMED.

 Case: 18-11306 Document: 00515020392 Page: 2 Date Filed: 07/03/2019