United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-50075 FILED May 8, 2025 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus Billy Joe Russell,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 7:22-CR-286-1 ______________________________ Before Smith, Clement, and Duncan, Circuit Judges. Jerry E. Smith, Circuit Judge: Billy Russell pleaded guilty of being a felon in possession in violation of 18 U.S.C. § 922(g)(1). Because Russell was previously convicted of two violent felonies—he committed aggravated assault in 2014 and 2017—the district court, applying U.S.S.G. § 2K2.1(a)(1), sentenced Russell to 115 months’ imprisonment. We affirm.

I. In 2022, the Midland Police Department responded to a domestic disturbance that involved Russell and his girlfriend. They were in their car Case: 24-50075 Document: 112-1 Page: 2 Date Filed: 05/08/2025

No. 24-50075

when the police arrived. The police ordered Russell to exit the vehicle; he then informed the police that there was a handgun in the car, though he denied ownership of it. He later admitted that he had possessed the firearm. He consequently pleaded guilty to being a felon in possession. Russell’s presentence investigation report (“PSR”) calculated his base offense level to be 26 because he had been convicted of two felony crimes of violence (“COV”) and had possessed a firearm capable of accepting a large-capacity magazine. 1 Russell’s 2014 Tennessee aggravated-assault in- dictment alleged that he “knowingly cause[d an officer] to reasonably fear imminent bodily injury by the use of a deadly weapon,” and his 2017 Ten- nessee aggravated-assault indictment alleged that he had “knowingly cause[d] bodily injury to [an officer].” 2 The district court also applied a three-point reduction for accepting responsibility, leaving Russell with a net offense level of 23. His guidelines range, with a criminal history category of VI, was 92 to 115 months’ imprisonment. The district court accordingly sentenced Russell to 115 months of imprisonment followed by three years of supervised release. He did not object to the PSR or his sentence.

II. On appeal, Russell’s sole challenge to his sentence is that the district court plainly erred when it categorized his 2017 Tennessee aggravated- assault conviction as a COV. 3 Because he did not object to the categorization _____________________ 1 United States Sentencing Guideline § 2K2.1(a)(1) provides a base level offense of 26 if the offense involves “a semiautomatic firearm capable of accepting a large capacity maga- zine” and the defendant has at least two previous felony convictions of either a COV or a controlled substance offense. 2 Both offenses were in violation of Tenn. Code Ann. § 39-13-102(a)(1)(A).

3 Russell also challenges his § 922(g)(1) conviction as facially unconstitutional under New York Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and because it e