United States v. Clinton Hicks ( 2019 )

Case: 18-11352 Document: 00514957275 Page: 1 Date Filed: 05/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11352
FILED
May 15, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLINTON DEVONE HICKS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-570-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Clinton Devone Hicks pleaded guilty to two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced
under the Armed Career Criminal Act (ACCA) to the statutory minimum
sentence of 180 months of imprisonment for each offense, to be served
concurrently. See 18 U.S.C. § 924(e). On appeal, Hicks argues that his prior
Texas convictions for possession with intent to deliver a controlled substance
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-11352 Document: 00514957275 Page: 2 Date Filed: 05/15/2019
No. 18-11352
are not serious drug offenses for purposes of the ACCA enhancement and that
the indictment did not allege the convictions that formed the basis of the
enhancement.
The Government has filed an unopposed motion for summary
affirmance. In the alternative, the Government seeks an extension of time to
file its brief.
As the Government argues and Hicks concedes, his argument that his
prior convictions are not serious drug offenses under the ACCA is foreclosed by
United States v. Cain, 877 F.3d 562, 562-63 (5th Cir. 2017), cert. denied, 138
S. Ct. 1579 (2018), and United States v. Vickers, 540 F.3d 356, 363-66 (5th Cir.
2008). His argument challenging the indictment is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998).
In addition, Hicks argues that § 922(g) does not allow for prosecutions
for the possession of firearms that traveled in interstate commerce in the
distant past, and that if the statute does allow such convictions, it is
unconstitutional. He further argues that the statute requires the Government
to prove that he knew that: he possessed a firearm, he was a felon, and the
firearm was in or affecting interstate commerce.
The Government argues and Hicks concedes that his interstate
commerce argument is foreclosed by United States v. Alcantar, 733 F.3d 143,
145-56 (5th Cir. 2013). His argument challenging the constitutionality of
§ 922(g) is foreclosed by United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001). Finally, his mens rea argument is foreclosed by United States v. Dancy,
861 F.3d 77, 81-82 (5th Cir. 1988).
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. Its alternative motion for an
extension of time is DENIED as unnecessary.
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