United States v. Lopez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41144
Summary Calendar
UNITED STATES OF AMERCA,
Plaintiff-Appellee,
versus
ROBERTO LUIS LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-94-1
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Roberto Luis Lopez appeals his conviction and sentence
following his guilty plea conviction for being a felon in
possession of a firearm. Lopez argues that the district court
erred in enhancing his offense level pursuant to U.S.S.G.
§ 2K2.1(b)(5) based on his possession of a firearm with the intent
to commit another felony offense.
*
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that this opinion should not be published and is not precedent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. 02-41144
-2-
Using Lopez’s own statements to the arresting officer, the
Government showed by a preponderance of the evidence that Lopez was
in possession of a firearm and that he had the intent to use the
weapon to commit the felony offense of aggravated assault. Thus,
the district court did not clearly err in enhancing Lopez’s offense
level pursuant to U.S.S.G. § 2K2.1(b)(5). See United States v.
Armstead, 114 F.3d 504, 507 (5th Cir. 1997).
Lopez also argues that the Government failed to prove that the
firearm was in or affected interstate commerce and, thus, his
prosecution violated the Commerce Clause and the Tenth Amendment.
He concedes that this argument is foreclosed by circuit precedent.
See United States v. Daugherty, 264 F.3d 513, 518 & n.12 (5th Cir.
2001), cert. denied, 534 U.S. 1150 (2002). He raises the issue to
preserve it for Supreme Court review. The judgment of the district
court is AFFIRMED.