United States v. McGarity

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50630
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GLENN RAY MCGARITY, JR., also known as Michael Lewis, also known as
Glenn Ray McGarity, also known as Glenn McGarity, also known as Glenn
McGarity, Jr.,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-436-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Glenn Ray McGarity, Jr., was convicted after a bench trial of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and
possession of counterfeit securities, in violation of 18 U.S.C. § 472. He now
appeals, challenging the constitutionality of Section 922(g)(1). Relying on
United States v. Lopez, 514 U.S. 549 (1995), McGarity asserts that

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 26, 2020

Lyle W. Cayce
Clerk
Case: 19-50630 Document: 00515321009 Page: 1 Date Filed: 02/26/2020

No. 19-50630
2
Section 922(g)(1) exceeds the scope of Congress’s power under the Commerce
Clause and is therefore unconstitutional. He concedes, however, that his
argument is foreclosed by circuit precedent, and he makes the argument to
preserve it for further review. The Government has filed an unopposed motion
for summary affirmance and an alternative request for an extension of time to
file its brief.
Summary affirmance is proper if “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as
to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). McGarity’s argument that Section 922(g)(1) is
unconstitutional because it exceeds the scope of Congress’s power under the
Commerce Clause is foreclosed. See United States v. Alcantar, 733 F.3d 143,
145–46 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001); United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
Accordingly, the Government’s motion for summary affirmance is
GRANTED. The Government’s alternative motion for an extension of time to
file a brief is DENIED. The district court’s judgment is AFFIRMED.
Case: 19-50630 Document: 00515321009 Page: 2 Date Filed: 02/26/2020