United States v. Lopez , 81 F. App'x 510 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 1, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40461
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MACARIO 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-322-1
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Marcario Lopez appeals his guilty-plea conviction for being
a felon in possession of a firearm. Lopez contends that the
district court erred by enhancing his sentence under U.S.S.G.
§ 2K2.1(b)(5) for using or possessing a firearm in connection
with another felony offense. He also asserts that 18 U.S.C.
§ 922(g) is unconstitutional because it does not require a
substantial effect on interstate commerce.
*
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that this opinion should not be published and is not precedent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. 03-40461
-2-
The district court determined that Lopez had raised his
shirt to reveal a firearm during a confrontation in which Lopez
had vandalized someone’s car and the men with Lopez had assaulted
someone. The court concluded that this display of the weapon was
done in a threatening manner and constituted an aggravated
assault under Texas Penal Code § 22.02. Considering the totality
of the circumstances, we find that this determination is not
clearly erroneous and that the district court did not err in
applying the enhancement in U.S.S.G. § 2K2.1(b)(5). See United
States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997); Edwards
v. State, 57 S.W.3d 677, 680 (Tex. App.–Beaumont 2001, pet
ref’d); Tanksley v. State, 656 S.W.2d 194, 195-96 (Tex.
App.–Austin 1983, no pet.).
Lopez concedes that his argument that 18 U.S.C. § 922(g) is
unconstitutional under the Commerce Clause is foreclosed by
circuit precedent. He raises the issue to preserve possible
Supreme Court review. As we have repeatedly held, the
“constitutionality of § 922(g) is not open to question.” See
United States v. Daugherty, 264 F.3d 513, 517 (5th Cir. 2001),
cert. denied, 534 U.S. 1150 (2002); see also United States v.
Lee, 310 F.3d 787, 788-89 (5th Cir. 2002).
AFFIRMED.