Case: 18-11167      Document: 00515037438         Page: 1    Date Filed: 07/17/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 18-11167                             FILED
                                  Summary Calendar                       July 17, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRIAN THOMAS MOHR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-368-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Brian Thomas Mohr appeals his conviction for possession of a firearm by
a person subject to a qualifying court order in violation of 18 U.S.C. § 922(g)(8).
For the first time on appeal, he raises two challenges to the adequacy of the
factual basis for his guilty plea.         In particular, he argues that his state
protective order did not satisfy the requirements of § 922(g)(8)(C). Next, he
argues that there were insufficient facts showing that the firearm he possessed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 18-11167

had an adequate connection to interstate commerce. The Government moves
for summary affirmance in an unopposed motion or, alternatively, for an
extension of time to file its brief.
      Because Mohr did not raise his claims in the district court, he must show
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 

, 135 (2009). Even if he makes this showing, we
have the discretion to correct the error but will do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” 

marks and citation omitted).
      Summary affirmance is inappropriate because Mohr does not raise
claims that are squarely foreclosed. See Groendyke Transp., Inc. v. Davis, 

, 1162 (5th Cir. 1969); see also United States v. Houston, 

, 873 n.2 (5th Cir. 2010). Nevertheless, on plain error review, Mohr’s
arguments are unavailing.
      First, regarding the factual basis for § 922(g)(8)(C), Mohr stipulated at
rearraignment that the protective order used to obtain his conviction satisfied
§ 922(g)(8)(C). He conversely argues on appeal that the protective order, which
was not made part of the district court record, includes no statements
satisfying § 922(g)(8)(C). On plain error review, Mohr cannot show clear or
obvious error in the district court’s factfinding by presenting, for the first time
on appeal, contradictory facts that were available but not presented to the
district court. See United States v. Illies, 

, 609 (5th Cir. 2015).
      Nonetheless, even if we considered the protective order, which has been
made part of the appellate record, see United States v. Fernandez-Cusco, 

, 386 (5th Cir. 2006) (observing that this court may enlarge the record
on appeal), we discern no clear or obvious error concerning whether the facts
were sufficient to satisfy § 922(g)(8)(C)(ii), given the absence of circuit



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                                  No. 18-11167

precedent directly on point and given the statements in the protective order
prohibiting Mohr from committing family violence as defined by Texas Family
Code § 71.004 and child abuse as defined by, inter alia, Texas Family Code
§ 261.001(1)(C). See United States v. Emerson, 

, 213-14 (5th Cir.
2001) (observing that satisfying either clause (C)(i) or (C)(ii) suffices); see also
United States v. Coccia, 

, 242 (1st Cir. 2006) (addressing clause
(C)(ii)).
       Next, as to Mohr’s argument concerning § 922(g)(8)’s interstate
commerce element, we discern no clear or obvious error regarding the
sufficiency of the factual basis, given that a document in the sealed records
shows that the firearm at issue was manufactured outside of Texas and he
stipulated that his gun possession was in and affected commerce. See United
States v. Rawls, 

, 242 (5th Cir. 1996); see also United States v. Trejo,

, 313 (5th Cir. 2010).
       Accordingly, the judgment of the district court is AFFIRMED.            The
Government’s motion for summary affirmance is DENIED. Because no further
briefing is required, the Government’s motion for an extension of time to file a
brief is likewise DENIED.




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