United States v. Jerrell Sims

Case: 16-11671 Document: 00514186303 Page: 1 Date Filed: 10/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-11671 FILED
Summary Calendar October 6, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JERRELL SIMS,
Defendant–Appellant.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-48-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Jerrell Sims appeals his conviction and 87-month, above-guidelines
sentence for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1).
Sims contends that: (1) the indictment failed to allege that he knew he
possessed a firearm in interstate commerce; (2) the district court failed to
instruct the jury that the Government must prove knowledge of the
jurisdictional predicate; (3) the indictment failed to allege that he knew that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-11671
he was a felon; (4) the district court failed to instruct the jury that the
Government must prove his knowledge of his felon status; (5) evidence that he
merely possessed a firearm that had been shipped in interstate commerce did
not suffice to establish an interstate nexus under § 922(g); (6) the evidence was
insufficient to prove an interstate nexus; (7) the district court violated the
Sixth Amendment by permitting the jury to establish the jurisdictional nexus
merely by finding that subsidiary facts were true; and (8) his prior state
conviction for kidnapping is not a “crime of violence” for purposes of the career
offender Guideline. The Government moves for summary affirmance,
asserting that this court’s precedents foreclose Sim’s first seven issues. See
United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010); Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Sims’s first four claims collectively allege that the Government, as part
of its burden of proof, was required—but failed—to prove that he knew he was
a convicted felon and that he knew his possession of a firearm occurred in
interstate commerce. Our precedents foreclose this argument. See United
States v. Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007); United States v. Dancy,
861 F.2d 77, 81-82 (5th Cir. 1988).
In his fifth and sixth claims, Sims contends that the evidence was
insufficient to establish the interstate commerce element of § 922(g)(1) because
merely possessing a firearm does not affect interstate commerce. Our
precedents likewise foreclose this argument. See United States v. Alcantar,
733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513,
518 (5th Cir. 2001).
In his seventh claim, Sims complains that he was denied a fair trial when
the district court permitted the jury to establish the interstate commerce nexus
merely by finding that the firearm Sims possessed had at some point been
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No. 16-11671
transported in interstate commerce. Circuit precedent also forecloses this
argument. See United States v. Miles, 122 F.3d 235, 239-40 (5th Cir. 1997).
The final argument Sims offers—that his prior state kidnapping
conviction did not support a career offender guidelines enhancement—is not
foreclosed. However, Sims did not receive an enhancement based on that
conviction. Thus, there is no error to remedy.
The motion for summary affirmance is DENIED. See Groendyke, 406
F.2d at 1162. The Government’s alternative motion for time to file a brief on
the merits is DENIED. The judgment is AFFIRMED.
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