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
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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