# United States Court **of Appeals**  **f or 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 Case: 22-50365 Document: 00516725161 Page: 1 Date Filed: 04/25/2023No. 22

- 50365

2 Hickcox argues that his § 922(g)(1) convict ion 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)

. “E ven where the argumen t 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 s eeks 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, 76 6 (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 Case: 22-50365 Document: 00516725161 Page: 2 Date Filed: 04/25/2023No. 22

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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 above

g uidelines sentence was appropria te because of the nature and circumstances of his offense. His ar gument 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