United States v. Curran

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50983
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD JOSEPH CURRAN, III,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CR-370-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Edward Joseph Curran, III, was convicted after a bench trial of
possessing with intent to distribute methamphetamine, carrying a firearm
during a drug-trafficking crime, and possessing a firearm after a felony
conviction. He now appeals, challenging only his felon-in-possession
conviction. Relying on United States v. Lopez, 514 U.S. 549 (1995), Curran
asserts that the statute of conviction, 18 U.S.C. § 922(g)(1), exceeds the scope

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 14, 2020

Lyle W. Cayce
Clerk
Case: 19-50983 Document: 00515528357 Page: 1 Date Filed: 08/14/2020

No. 19-50983
2
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). Curran’s argument that § 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: 19-50983 Document: 00515528357 Page: 2 Date Filed: 08/14/2020