United States v. Laxey ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 3, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40802
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGG CHARLES LAXEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-131-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Gregg Charles Laxey appeals his conviction and sentence for
being a felon in possession of a firearm. Laxey raises five
issues on appeal.
First, Laxey argues that the evidence is insufficient.
Specifically, he urges that the Government did not prove his
status as a felon because he received a first-time offender
pardon. Laxey’s pardon excluded the right to receive, possess,
and transport a firearm, thus making Laxey a prohibited person
*
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that this opinion should not be published and is not precedent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. 03-40802
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for the purposes of § 922(g)(1). See United States v.
Richardson, 168 F.3d 836, 839-40 (5th Cir. 1999). Laxey urges
that the Government did not prove that he knowingly possessed the
firearm, as only one witness saw Laxey momentarily touch the
firearm. Our review of the record indicates that the evidence
was sufficient. See United States v. Pankhurst, 118 F.3d 345,
352-53 (5th Cir. 1997).
Laxey urges that the district court abused its discretion by
instructing the jury on momentary possession. There was no abuse
of discretion, as the district court’s instructions fairly and
accurately reflected the law and covered the issues presented in
the case. See United States v. Chaney, 964 F.2d 437, 444 (5th
Cir. 1992).
Laxey next asserts that the district court erred in denying
his motion to dismiss the indictment on grounds that the
prosecution was a sham and constituted double jeopardy and
selective and vindictive prosecution. First, Laxey has not shown
that the federal prosecution was a sham meant to vindicate the
interests of the state of Texas. See United States v. Angleton,
314 F.3d 767, 773 (5th Cir. 2002). Second, Laxey has not shown
selective prosecution, as he has not rebutted the presumption of
regularity supporting the Government’s decision to prosecute.
United States v. Jennings, 724 F.2d 436, 445 (5th Cir. 1984). He
has neither made a prima facie showing that he was singled out
for prosecution while others similarly situated who committed the
No. 03-40802
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same crime were not prosecuted nor demonstrated that the
prosecution was constitutionally invidious in that it rested upon
such impermissible considerations as race, religion, or the
desire to prevent his exercise of constitutional rights. See id.
Finally, Laxey’s bare allegation that the Government engaged in
vindictive prosecution because he exercised his right to deferred
adjudicated probation under Texas law is not sufficient to
support a vindictive prosecution claim. See Neal v. Cain, 141
F.3d 207, 214 (5th Cir. 1998). This is especially so in light of
the fact that the two prosecutions were brought by separate
sovereigns. See United States v. Johnson, 91 F.3d 695, 697 (5th
Cir. 1996).
Laxey argues that the district court erred in finding that
his prior offenses qualified him to be sentenced as a career
offender pursuant to U.S.S.G. § 4B1.4 or 18 U.S.C. § 924(e). The
PSR indicated that Laxey’s three prior distribution offenses were
“committed on occasions different from one another” and thus were
separate offenses that qualified him to be sentenced as a career
offender. See United States v. Ressler, 54 F.3d 257, 259-60 (5th
Cir. 1995).
Finally, Laxey argues that he should not have been sentenced
under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because
he was not indicted under that act and the jury was not required
to find beyond a reasonable doubt the qualifying prior
convictions. Laxey concedes that his argument is foreclosed by
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circuit precedent, see United States v. Stone, 306 F.3d 241, 243
(5th Cir. 2002), and he is raising the issue solely to preserve
it for possible further review.
AFFIRMED.