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United States v. Patton ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10132
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL DARNELL PATTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-29-1-C
--------------------
June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Joel Darnell Patton appeals from his guilty-plea conviction
and sentence for being a felon in possession of a firearm.      See
    18 U.S.C. §§ 2
    , 922(g)(1), 924(e)(1).
Patton challenges his sentence by arguing that his 210-month
sentence is illegal because the indictment failed to charge an
offense pursuant to
    18 U.S.C. § 924
    (e)(1); the indictment charged
only an offense pursuant to
    18 U.S.C. § 922
    (g)(1), for which
punishment is limited to ten years’ imprisonment.    He contends
that
    18 U.S.C. § 924
    (e) is a separate offense from 18 U.S.C.
*
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that this opinion should not be published and is not precedent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. 01-10132
-2-
§ 922(g)(1).     Patton acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States,
    523 U.S. 224
     (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey,
    530 U.S. 466
     (2000).
Apprendi did not overrule Almendarez-Torres.       See Apprendi,
    530 U.S. at 489-90
    ; United States v. Dabeit,
    231 F.3d 979
    , 984
(5th Cir. 2000), cert. denied,
    121 S. Ct. 1214
     (2001).      Patton’s
argument is foreclosed.
For the first time on appeal, Patton challenges the
constitutionality of
    18 U.S.C. § 922
    (g)(1).      Patton argues that
the statute is beyond the bounds of the Commerce Clause under
which Congress has authority to enact federal criminal law.         He
notes that this court has decided the issue against him in United
States v. Kuban,
    94 F.3d 971
    , 973 (5th Cir. 1996), and United
States v. Rawls,
    85 F.3d 240
    , 242-44 (5th Cir. 1996).      However,
he asserts that the recent analysis by the Supreme Court in Jones
v. United States,
    529 U.S. 848
    , 852-59 (2000), and in United
States v. Morrison,
    529 U.S. 598
    , 607-17 (2000), should compel
this court to reconsider its holdings in Kuban and Rawls.          Under
the plain error standard, Patton fails to carry his burden in
demonstrating clear or obvious error.       See United States v.
Jackson,
    220 F.3d 635
    , 636 (5th Cir. 2000), cert. denied, (U.S.
Apr. 16, 2001) (No. 00-9006); United States v. Calverley,
    37 F.3d 160
    , 162-64 (5th Cir. 1994) (en banc).
AFFIRMED.