Opinion

United States v. Brown

Court
Court of Appeals for the Fifth Circuit
Filed
Mar 4, 2024
Status
Unpublished
Nature of suit
Direct Criminal
Cited by
0 cases
Authority
More cited than 15.5%

The opinion

Case: 22-30678 Document: 88-1 Page: 1 Date Filed: 03/04/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

March 4, 2024

No. 22-30678

Lyle W. Cayce

____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Damichael Brown,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:20-CR-242-1

______________________________

Before Stewart, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

A jury found Damichael Brown guilty of being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 Prior to the

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

1

The government charged Brown with (Count 1) being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (Count 2) possession of an

unregistered machine gun, in violation of 26 U.S.C. §§ 5861(d) and 5871, and (Count 3)

possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). The

government dismissed Count 2 and Brown proceeded to trial on Counts 1 and 3. The jury

found Brown guilty of Count 1 but found him not guilty of Count 3.

Case: 22-30678 Document: 88-1 Page: 2 Date Filed: 03/04/2024

No. 22-30678

instant offense, Brown had been convicted for two prior felony convictions

for possession of cocaine and for aggravated second-degree battery. He de-

clined to stipulate to having prior felony convictions. The government thus

presented documentary, testimonial, and fingerprint evidence showing

Brown’s two prior felony convictions and that Brown could not, under fed-

eral law, legally possess a firearm. At the time of arrest, following a car and

foot chase by police, Brown had in his possession a Glock handgun that con-

tained 18 rounds of 9mm ammunition. The government presented evidence

that a partial DNA profile from a swab of the gun revealed that Brown was

the likely major contributor of that DNA. The course of the stop and arrest

of Brown was also presented to the jury through the testimony of the officers

and supported by video from the officers’ dash and body cameras. Following

conviction, Brown was sentenced within the statutory range to 120 months

imprisonment and a three-year term of supervised release.

Brown appeals, but his appointed lawyer asserts that Brown presents

no nonfrivolous issues and moves to withdraw. See Anders v. California, 386

U.S. 738, 744 (1967). We notified Brown of counsel’s motion and he re-

sponded. The court then directed counsel to file supplemental briefing ad-

dressing “whether there is a nonfrivolous issue for appeal on plain error re-

view regarding whether Brown’s conviction under 18 U.S.C. § 922(g)(1) vi-

olates the Second Amendment under New York State Rifle & Pistol Ass’n v.

Bruen, 142 S. Ct. 2111 (2022).” Counsel filed a supplemental Anders brief, in

which counsel averred that there is no nonfrivolous issues for appeal and that

this court “has rejected plain-error Second Amendment challenges premised

on Bruen no less than six times this year.” The court notified Brown of coun-

sel’s supplemental brief. Brown did not respond. The government has not

filed any briefs in this appeal.

Upon independent review of the record and legal precedent, we con-

clude that Brown’s claims of error are without merit. Brown further failed to

2

Case: 22-30678 Document: 88-1 Page: 3 Date Filed: 03/04/2024

No. 22-30678

argue in the district court that § 922(g)(1) is unconstitutional. We thus review

only for plain error. United States v. Ramirez, 37 F.4th 233, 235 (5th Cir. 2022)

(citation omitted); United States v. Knowles, 29 F.3d 947, 950 (5th Cir. 1994).

The recent published decision in United States v. Jones, 88 F.4th 571 (5th Cir.

2023) (per curiam), squarely forecloses the question of whether a defendant

may prevail on a Bruen challenge to § 922(g)(1) on plain error review. In other

words, 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, Brown is unable to demonstrate plain error. See, e.g., Jones, 88

F.4th at 574.

* * *

For the foregoing reasons, we GRANT counsel’s motion for leave to

withdraw and AFFIRM Brown’s conviction.

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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