Petition for Writ of Certiorari — Devontae Nykel Racliff, Petitioner v. United States

Supreme Court briefDec 13, 2023

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No. _________

IN THE SUPREME COURT OF THE UNITED STATES

DEVONTAE NYKEL RACLIFF,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

APPENDIX

/s/ Maria Gabriela Vega

JASON HAWKINS

Federal Public Defender

Northern District of Texas

TX State Bar No. 00759763

525 Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886 Fax

MARIA GABRIELA VEGA **

Assistant Federal Public Defender

Northern District of Texas

TX State Bar No. 24084014

525 Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886

INDEX TO APPENDICES

Appendix A Opinion of Fifth Circuit, CA No. 22-10409,

United States v. Racliff, 2023 WL 5972049 (5th Cir. Sept. 14, 2023)

(unpublished).

Appendix B Judgment and Sentence of the United States District Court

for the Northern District of Texas, entered April 14, 2022.

United States v. Racliff, Dist. Court 3:20-CR-417-X.

APPENDIX A

Case: 22-10409

Document: 132-1

Page: 1

Date Filed: 09/14/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________

FILED

September 14, 2023

No. 22-10409

____________

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Devontae Nykel Racliff,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CR-417-1

______________________________

Before Jones, Stewart, and Duncan, Circuit Judges.

Per Curiam: *

Devontae Nykel Racliff 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 51 months of imprisonment and three

years of supervised release.

Racliff argues that § 922(g)(1) is

unconstitutional and that the district court erred in enhancing his base

_____________________

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

Case: 22-10409

Document: 132-1

Page: 2

Date Filed: 09/14/2023

No. 22-10409

offense level based upon its conclusion that his prior conviction for Texas

robbery constituted a crime of violence.

Because Racliff 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). Racliff must therefore 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). If he makes such a showing,

this court has the discretion to correct the error but only if it seriously affects

the fairness, integrity, or public reputation of judicial proceedings. Id.

First, Racliff argues that § 922(g)(1) is unconstitutional because it

exceeds Congress’s power under the Commerce Clause. This argument is

foreclosed. See United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999);

see also United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020).

Second, Racliff asserts that the Supreme Court’s recent decision in

New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), suggests

that § 922(g)(1) is unconstitutional under the Second Amendment. 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). In fact, “[e]ven 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,

Racliff is unable to demonstrate an error that is clear or obvious.

See Rodriguez-Parra, 581 F.3d at 230-31; see also United States v. Avila,

No. 22-50088, 2022 WL 17832287, at *2 (5th Cir. Dec. 21, 2022).

Case: 22-10409

Document: 132-1

Page: 3

Date Filed: 09/14/2023

No. 22-10409

Lastly, Racliff argues that the district court erred by assigning an

enhanced base offense level under U.S.S.G. § 2K2.1(a)(4)(A), as his Texas

robbery conviction did not constitute a “crime of violence” per U.S.S.G.

§ 4B1.2(a).

This court recently reaffirmed that Texas robbery is the

equivalent of the enumerated offense of robbery under § 4B1.2 and that it is

therefore a crime of violence for purposes of § 2K2.1(a)(4)(A). United States

v. Adair, 16 F. 4th 469, 470-71 (5th Cir. 2021), cert. denied, 142 S. Ct. 1215

(2022). Thus, Racliff’s argument on this point is foreclosed.

AFFIRMED.

APPENDIX B