United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50365

Summary Calendar

____________

United States of America, 

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.

United States Court of Appeals

Fifth Circuit

FILED

April 25, 2023

Lyle W. Cayce

Clerk

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No. 22-50365

2

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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3

Cir. 2013). The district court reviewed and adopted the presentence report, 

considered Hickcox’s mitigating arguments, and determined that an aboveguidelines 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.

Case: 22-50365 Document: 00516725161 Page: 3 Date Filed: 04/25/2023