Opinion
SA-23-CR-459-OLG
02-12-2024
UNITED STATES OF AMERICA, Plaintiff, v. GILBERT RAMIREZ, JR., Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns Defendant's Motion to Dismiss Count One of the Indictment. (Docket Entry 21.) This motion has been referred to the undersigned for consideration. (See Text Order, January 2, 2024.) I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons set out below, I recommend that the motion be DENIED.
I. Background.
On September 6, 2023, a federal grand jury returned a two-count indictment against Defendant Gilbert Ramirez, Jr. (See Docket Entry 1.) Count One charges a violation of 18 U.S.C. § 922(g)(1), which states:
(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year; . . . [to] possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(g)(1).
Ramirez moves to dismiss Count One of his indictment, arguing that, in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) “violates the Second Amendment both facially and as applied to Ramirez.” (Docket Entry 21, at 5.) As applied, Ramirez argues that even if the government could disarm some felons, it cannot disarm those convicted of non-violent felonies-which is how he characterizes himself. (Docket Entry 21, at 26-29.) He also argues that § 922(g)(1) lies beyond the scope of Congress's legitimate power under the Commerce Clause. (Id. at 32.) See U.S. CONST. art. I, § 8, cl. 3.
II. Second Amendment Challenge.
The Second Amendment to the United States Constitution provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. As noted above, Ramirez's Second Amendment challenge is based on his reading of the Supreme Court's decision in Bruen, which he contends abrogates prior Fifth Circuit precedent. (Docket Entry 21, at 5.) To address this contention, this Report and Recommendation considers the applicable law both before and after Bruen before turning to the arguments in this case.
A. Applicable Law.
i. Pre-Bruen.
Before Bruen, the leading Second Amendment case from the Supreme Court was District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Court determined that the amendment protected an individual's right to bear arms. As the Supreme Court explained, the Second Amendment did not introduce a new right but, rather, “codified a pre-existing right.” Id. at 592. And “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. That is to say, the right codified by the Second Amendment “was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id.
Both before and after Heller, the Fifth Circuit upheld § 922(g)(1) against Second Amendment challenges. See, e.g., United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010); United States v Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003)). Indeed, when the circuit first recognized an individual Second Amendment right to possess firearms, it pointed out that “felons . . . may be prohibited from possessing firearms.” United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001), abrogation in part recognized by United States v. Rahimi, 61 F.4th 443, 452 (5th Cir. 2023), cert. granted, No. 22-915, 143 S.Ct. 2688 (U.S. June 30, 2023). As the court of appeals later confirmed, “legislative prohibitions on the ownership of firearms by felons are not considered infringements on the historically understood right to bear arms protected by the Second Amendment,” Darrington, 351 F.3d at 634. See also United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004) (“It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.”).
The Fifth Circuit's reasoning accords with the express language in Heller. There, the Supreme Court reinforced this categorical exclusion of felons from the Second Amendment's protections, explicitly stating that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ....” 554 U.S. at 626. While this statement was dictum in Heller, lower courts “are generally bound by Supreme Court dicta, especially when it is recent and detailed,” as in Heller. United States v. Grinage, No. SA-21-CR-00399-JKP, 2022 WL 17420390, at *5 (W.D. Tex. Dec. 5, 2022) (quoting Hollis v. Lynch, 827 F.3d 436, 448 (5th Cir. 2016)).
ii. Bruen.
While Bruen expressly reaffirms Heller, it is significant because in it, the Supreme Court rejected the analytical framework employed by the lower courts, including the Fifth Circuit, in applying the prior decision. The Supreme Court found that, in applying Heller, the lower courts had wrongly “combine[d] history with means-end scrutiny.” Bruen, 597 U.S. at 17.Instead, the Court clarified that the analytical framework for determining the constitutionality of a firearm regulation is one rooted in “the Second Amendment's text, as informed by history.” Id. at 2. This framework, which the Court described as “broadly consistent with Heller,” consists of two steps. See id. at 19, 24. At the first step, courts must determine whether “the Second Amendment's plain text covers an individual's conduct.” Id. If so, then “the Constitution presumptively protects that conduct,” id., and the court must proceed to the second step, which requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19.
In the Fifth Circuit, the means-ends scrutiny worked as follows: “If legislation infringed on the historical right to bear arms,” courts “asked whether the government had a sufficiently strong interest and whether its firearm regulation was sufficiently tailored.” United States v. Daniels, 77 F.4th 337, 341 (5th Cir. 2023). “If a law breached the core of the Second Amendment liberty,” then courts “applied strict scrutiny,” otherwise courts “applied intermediate scrutiny.” Id.
The word “conduct” is somewhat misleading in describing step one, because Bruen did not limit its step-one analysis to whether the petitioners' proposed actions-i.e., openly carrying a weapon in public for purposes of self-defense-was covered by the Second Amendment's plain text. Instead, in demonstrating how to apply step one, Bruen made clear that courts must answer three questions: (1) is the individual a part of “the people?”; (2) is the weapon involved an “Arm?”; and (3) does the proposed conduct amount to “keep]ing]” or “bear[ing]?”-as each of these terms were originally understood when the Second Amendment was ratified in 1791. See 597 U.S. at 31-33.
At step one in Bruen, the Supreme Court began by determining whether the petitioners there were even “part of ‘the people' whom the Second Amendment protects.” 597 U.S. at 31-32. The Court found that they were, inasmuch as they were “ordinary, law-abiding, adult citizens.” Id.; see also Heller, 544 U.S. at 626 (holding that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home”). After determining that the petitioners were part of “the people,” the Supreme Court proceeded to consider whether the specific weapon involved-a handgun-was the sort of “Arm” covered by the Second Amendment's plain text. See Bruen, 597 U.S. at 32; see also Heller, 554 U.S. at 627 (recognizing that the Second Amendment only protects the right to keep and carry “the sorts of weapons . . . ‘in common use at the time.'”) (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). None of the parties disputed “that handguns are weapons ‘in common use' today for self-defense.” 597 U.S. at 32. The Court concluded its step-one analysis by “turn[ing] to whether the plain text of the Second Amendment protect[ed] . . . [the petitioners'] proposed course of conduct-carrying handguns publicly for self-defense.” Bruen, 597 U.S. at 32. The Court found that the right to “bear arms” refers to the right to “wear” or “carry” them on one's person for purposes of self-defense. Id. at 32-33.
At step two, the Bruen Court considered the government's proffer of analogous laws and legal treatises from before the founding all the way through reconstruction to determine whether American legal history and tradition supported New York's “may issue” licensing law, which required those seeking a license to carry a firearm outside their home to convince a government official that “proper cause exist[ed]” to issue it. 597 U.S. at 12-13. The Bruen Court ruled that New York's licensing scheme was unconstitutional because no other laws throughout American history “operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.” Id. at 59. The government, in other words, had failed “to identify an American tradition ....requir[ing] law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community' in order to carry arms in public.” Id. at 70.
After Bruen, the Fifth Circuit has applied its two-step reasoning to strike down federal firearms laws prohibiting possession of a firearm by an unlawful user of a controlled substance, see United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), and possession of firearms by someone subject to a domestic violence restraining order, see Rahimi, 61 F.4th at 452. On plain-error review, the Court of Appeals had repeatedly upheld § 922(g)(1) against such challenges. See United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (collecting cases).
B. Analysis.
Having surveyed the legal terrain from Heller to Bruen, this Report and Recommendation now proceeds to consider whether § 922(g)(1), whether facially or as applied to Ramirez, violates the Second Amendment. For the reasons stated below, the Court should find that it does not. Such a conclusion is required by still-controlling Fifth Circuit precedent, and it is required by the reasoning in Bruen itself.
i. Prior Fifth Circuit Precedent Controls.
Ultimately, the Court is still bound by pre-Bruen Fifth Circuit precedent holding that § 922(g)(1) is constitutional. See, e.g., Grinage, 2022 WL 17420390, at *3 (holding that § 922(g)(1) “remains constitutional under binding Fifth Circuit authority”). The Court acknowledges that the Fifth Circuit has commented, that by “fundamentally chang[ing]” the analysis of laws that implicate the Second Amendment,” Bruen “render[ed] our prior precedent obsolete.” Rahimi, 61 F.4th at 450-51 (citation omitted). However, this Court should join the other district courts which have found that Rahimi's reference to the obsolescence of prior precedent at most abrogated the Fifth Circuit's prior analytical framework for Second Amendment challenges, not its prior holdings as to the constitutionality of § 922(g)(1). See United States v. Schnur, No. 1:23-CR-65-LG-BWR-1, 2023 WL 4881383, at *3 (S.D.Miss. July 31, 2023) (collecting cases). Those holdings still stand, and this Court “cannot ignore pre-Bruen Fifth Circuit precedent on the constitutionality of section 922(g)(1) absent a Fifth Circuit or Supreme Court decision reaching the issue.” Id.
Indeed, as to § 922(g)(1) itself, Rahimi provides no basis for overturning prior Fifth Circuit precedent. Like other Fifth Circuit post-Bruen cases, Rahimi states that the Supreme Court's reference to “ordinary” “law-abiding, responsible citizens” excludes “groups that have historically been stripped of their Second Amendment rights,” such as “felons and the mentally ill.” 61 F.4th at 452. Cf. Daniels, 77 F.4th at 343 (“Because Daniels is not a felon or mentally ill, . . . he has presumptive Second Amendment rights.”). Thus, even if Rahimi's language is critical of prior precedent, its language casts no doubt on the constitutionality of § 922(g)(1).
In any event, respect for the “rule of orderliness” counsels against following Fifth Circuit cases in the face of prior contrary holdings. See United States v. Flores, No. SA-18-CR-00064-OLG, 2023 WL 5282384, at *4 (W.D. Tex. Aug. 16, 2023) (discussing rule in context of § 922(g)(1) challenge), report and recommendation adopted, United States v. Flores, 2023 WL 7190729 (W. D. Tex. Oct. 30, 2023). As Rahimi was not an en banc decision, the Rahimi panel could not overturn prior Fifth Circuit decisions as to the constitutionality of § 922(g)(1) absent an intervening change in the law-i.e., a constitutional amendment, statute, Supreme Court decision, or decision by the en banc Fifth Circuit. See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021); United States v. Jeffery, No. SA-21-CR-00437-OLG, 2023 WL 4629556, at *3 (W.D. Tex. July 19, 2023). A Supreme Court decision-like Bruen-will not change Fifth Circuit law if it is “merely illuminating with respect to the case before [the court].” Bonvillian, 19 F.4th at 792 (citations omitted). Rather, it “must ‘unequivocally' overrule prior precedent.” Id. (citations omitted). “Th[at] bar . . . is high.” Gruver v. La. Bd. Of Supervisors for the La. State Univ. Agric. And Mech. Coll., 959 F.3d 178, 181 (5th Cir. 2020).
Although Bruen clarified the pertinent Heller analysis by prohibiting the use of meansends scrutiny in assessing the constitutionality of firearms regulations, it did not abrogate Fifth Circuit precedent holding that § 922(g)(1) is constitutional. See United States v. Garza, No. 2251021, 2023 WL 4044442, at *1 (5th Cir. June 15, 2023) (“[T]here is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional on its face or as applied . . . [and] it is not clear that either Bruen or Rahimi dictate such a result.”); see also Jones, 88 F.4th at 573-74. Accordingly, this Court remains bound by pre-Bruen Fifth Circuit precedent holding that § 922(g)(1) is constitutional.
Under that still-binding precedent, “criminal prohibitions on felons (violent or nonviolent) possessing firearms d[o] not violate” the Second Amendment. Scroggins, 599 F.3d at 451; see Everist, 368 F.3d at 519 (“Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others.... [and] may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens.”). Thus, Ramirez's as-applied challenge to the constitutionality of § 922(g)(1) fails since it makes no difference whether his felony convictions were for violent or non-violent crimes.(See Docket Entry 21, at 26-28.) And since § 922(g)(1) is constitutional as applied to Ramirez, “his facial challenge also fails.” See United States v. Melendrez-Machado, No. EP-22-CR-00634-FM, 2023 WL 4003508, at *10 (W.D. Tex. June 14, 2023) (“To sustain a facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid.”).
This Report and Recommendation assumes the validity of Ramirez's characterization of his felony record as non-violent, even though the Government points out that his criminal history includes three felony robberies, during which he threatened his victims with a gun. (Docket Entry 24, at 28.).
ii. Ramirez's Challenge Fails Under Bruen.
For the reasons stated above, pre-Bruen Fifth Circuit precedent remains binding and forecloses Ramirez's Second Amendment challenge. Nevertheless, as Rahimi and Daniels appear to question that precedent, and as Rahimi is now pending before the Supreme Court, “it would be prudent to conduct the textual and historical inquiry set out by Bruen” in considering Ramirez's challenge. Schnur, 2023 WL 4881383, at *4.
For the reasons set out below, an independent application of Bruen's two-step analysis “reaches the same result as Fifth Circuit pre-Bruen precedent.” Schnur, 2023 WL 4881383, at *4. At both steps of the Bruen inquiry, Ramirez's challenges to § 922(g)(1) fail.
a. Step one.
The threshold question at step one of Bruen is whether convicted felons are among those protected by the Second Amendment. See Bruen, 597 U.S. at 31-32. Contrary to Ramirez's argument, they are not. As the Fifth Circuit has repeatedly asserted in applying Bruen, felons are excluded from that protection because they are not law-abiding. See Rahimi, 61 F.4th at 452 (explaining that reference in Heller and Bruen to “ordinary law-abiding, responsible citizens” excludes “groups that have historically been stripped of their Second Amendment rights,” such as “felons and the mentally ill”); cf. Daniels, 77 F.4th at 343 (“Because Daniels is not a felon or mentally ill, . . . he has presumptive Second Amendment rights.”). Such assertions are, of course, found in Heller itself, and Bruen says nothing that would cast doubt on that reasoning. See Heller, 544 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ”); Bruen, 597 U.S. at 26 (expressly applying “the test we set forth in Heller”).
Ramirez argues that disarming felons can only be justified, if at all, at step two of the Bruen framework, not under step one's “plain text” analysis. However, many courts have already concluded that felons are not covered by the Second Amendment's plain text. See, e.g., United States v. Black, 649 F.Supp.3d 246, 251 (W.D. La. 2023) (collecting cases); United States v. Sanchez, 646 F.Supp.3d 825, 827 (W.D. Tex. 2022) (“[T]he right to keep and bear arms belongs only to ‘law-abiding' citizens.”); United States v. Ingram, 623 F.Supp.3d 660, 664 (D.S.C. 2022) (“By distinguishing non-law-abiding citizens from law-abiding ones, the dicta in Heller . . . clarifies the bounds of the plain text of the Second Amendment.”); United States v. French, No. CR 23-00064-01, 2023 WL 7365232, at *2 (W.D. La. Nov. 7, 2023) (holding that because convicted felons are “not ‘law abiding,'” they are “not facially protected by the Second Amendment”); United States v. Stewart, No. 4:23-CR-0105-P, 2023 WL 3313053, at *1 (N.D. Tex. May 8, 2023) (explaining that the Second Amendment codified a pre-existing, limited right, “allowing only those citizens who are ‘law-abiding' to own or possess firearms....”); but see Schnur, 2023 WL 4881383, at *4 (holding that felons are not excluded at step one of Bruen but that § 922(g)(1) is constitutional at step two); United States v Collette, 630 F.Supp.3d 841, 84448 (W.D. Tex. 2022) (same).
The clearest and most persuasive basis for concluding that felons are not protected under the first step of the Bruen analysis is that, if the analysis needed to proceed to the second step, “the Heller and Bruen majorities would not have been so unconcerned about the constitutionality of such statutes without undergoing any historical analysis, let alone term them ‘presumptively lawful.'” United States v. Hill, No. CR H-22-249, 2022 WL 17069855, at *5 (S.D. Tex. Nov. 17, 2022). There is “no indication . . . that the second step of the Bruen test . . . should be conducted with a presumption of constitutionality in certain contexts.” Id. Rather, by the time a court reaches step two, the Second Amendment presumptively protects the defendant, at which point the burden shifts to the government to “justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. Given this framework, the Bruen majority could not have “viewed laws banning felony possession as ‘presumptively lawful' if they thought that the Second Amendment's plain text extended to felons.” Id. Instead, the “mo[st] plausible explanation for why felon-in-possession statutes are ‘presumptively lawful' is because they fail at the first step-they are not covered by the plain text of the Second Amendment.” Hill, 2022 WL 17069855, at *5.
For these reasons, convicted felons presumptively have no constitutional right to keep and bear arms. Thus, Ramirez's arguments that § 922(g)(1) violates the Second Amendment-whether facially or as applied to Ramirez-fail at step one of Bruen's two-step analysis.
b. Step two.
At step two, the government must “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 597 U.S. at 19. Ramirez argues that § 922(g)(1) is unconstitutional because “[t]he earliest restrictions for felons in America were passed in the 20th century.” (Docket Entry 21, at 19.) The absence of founding-era laws restricting the possession of weapons by felons, Ramirez argues, renders § 922(g)(1) unconstitutional. (Id.) However, as the government correctly points out, the absence of founding-era laws specifically stating that felons may not possess weapons is misleading, since felons throughout early American history were typically dispossessed of all of their property or executed. (See Docket Entry 24, at 16-20.)
The government points out that felony was defined during the founding era as “an offence which occasions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment must be superadded, according to the degree of guilt.” (Docket Entry 24, at 16 (quoting 4 W. BLACKSTONE, COMMENTARIES *95 (1st ed. 1769).) As the government points out, “[t]he idea of felony [wa]s so generally connected with that of capital punishment,” that founding era Americans would have found it “hard to separate them.” (Id. (quoting 4 W. BLACKSTONE, COMMENTARIES *98).) Indeed, “death was ‘the standard penalty for all serious crimes' at the time of the founding.” Bucklew v. Precythe, 139 S.Ct. 1112, 1122 (2019) (quoting STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 23 (2002)); see Tennessee v. Garner, 471 U.S. 1, 13 (1985) (noting that “virtually all felonies were punishable by death” at the time of the founding); 4 W. BLACKSTONE, COMMENTARIES *98 (noting that founding era executions of felons were so ubiquitous that, “if a statute ma[d]e any new offence a felony, the law implie[d] that it shall be punished with death . . . as well as with forfeiture....”). And the government also identified founding era laws from New York, Virginia, Pennsylvania, Maryland, Rhode Island, and Massachusetts, punishing both violent and non-violent felonies with death, imprisonment for life, total forfeiture of all property, whipping, branding, or some combination of these. (See Docket Entry 24, at 17-19.)
From this evidence, it is clear that § 922(g)(1) is consistent with the Nation's historical tradition of firearm regulation. After all, where history reveals a longstanding tradition authorizing the government to deprive felons of the entirety of their life, liberty, and property, it necessarily follows that the government was authorized to impose the lesser deprivation of disarmament. Indeed, it strains credulity to suppose “that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms.” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019). And as the government has pointed out, these punishments were not reserved for violent felonies, but were also imposed for offenses such as burglary, forgery, counterfeiting, embezzlement, tampering with a will, and refusing to disperse during a riot. (See Docket Entry 24, at 17-24.)
For all these reasons, disarming felons-violent or otherwise-is consistent with American history and tradition. This forecloses Ramirez's Bruen-based challenges to § 922(g)(1).
III. Commerce Clause Challenge.
Ramirez argues that § 922(g)(1) is “an unconstitutional exercise of Congressional power.” (Docket Entry 21, at 32.) He argues that “prohibited activity must substantially affect commerce” before Congress can regulate it under the Commerce Clause, and that the“[m]ere possession of a weapon has nothing to do with business or commerce.” (Id. (citing United States v. Lopez, 514 U.S. 549 (1995).)
The Fifth Circuit has consistently upheld § 922(g)(1)'s constitutionality against charges that it is an improper exercise of Congress's commerce-clause power. See United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020); 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). Ramirez concedes that his challenge is foreclosed by Fifth Circuit precedent, but raises it “to preserve it for further review” on appeal. (Docket Entry 21, at 33.) The District Court should deny Ramirez's motion to dismiss on this basis as well.
IV. Conclusion and Recommendation.
Based on the foregoing, § 922(g)(1) is constitutional-both facially and as applied to Ramirez. Furthermore, Congress acted within its legitimate authority under the commerce clause in enacting § 922(g)(1). Accordingly, each of Ramirez's arguments for dismissing count one of his indictment fail. Therefore, I recommend that Defendant's Motion to Dismiss Count One of the Indictment (Docket Entry 21) be DENIED.
V. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).