United States v. Criston ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-20468
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY CRISTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-604-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Gary Criston was convicted in a bench trial for being a
felon in possession of a firearm, and the district court
sentenced him to 77 months’ imprisonment, three years’ supervised
release, and a $100 special assessment, which the district court
ordered remitted on motion of the Government.
Criston argues on appeal that the statute of conviction,
18 U.S.C. § 922(g)(1), is unconstitutional because it does not
require a substantial effect on interstate commerce and is thus
*
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that this opinion should not be published and is not precedent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.
No. 03-20468
-2-
an improper exercise of Congress’s power under the Commerce
Clause. Alternatively, Criston argues that (1) his indictment
was defective for failing to allege that his specific offense
substantially affected interstate commerce and (2) the factual
basis for his conviction was insufficient because the evidence
established only that the firearm had traveled across state lines
at some unspecified point in the past.
Criston raises his arguments solely to preserve them for
possible Supreme Court review. As he acknowledges, his arguments
are foreclosed by Fifth Circuit precedent. See United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v.
Gresham, 118 F.3d 258, 264-65 (5th Cir. 1997); United States v.
Fitzhugh, 984 F.2d 143, 145-46 (5th Cir. 1993).
Criston also argues that the district court’s inclusion of a
written condition of supervised release prohibiting him from
possessing a dangerous weapon must be stricken because it
conflicts with the district court’s oral pronouncement of
sentence. This issue has been decided adversely to Criston. See
United States v. Torres-Aguilar, 352 F.3d 934, 937-38 (5th Cir.
2003).
Criston has shown no error in connection with his conviction
and sentence. Accordingly, the judgment of the district court is
AFFIRMED.