United States v. Baltimore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21145
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIONELL CHARLES BALTIMORE,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(01-CR-406)
November 25, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lionell Charles Baltimore appeals his sentence after pleading
guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2). Baltimore argues that the
district court erred in applying the cross reference in U.S.S.G. §
2K2.1(c)(1)(A) to calculate his sentence. He argues that the court
erred in finding that he possessed a firearm in connection with the
*
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opinion should not be published and is not precedent except under the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.
commission of another offense, namely possession with the intent to
distribute 13.3 grams of crack cocaine.
The district court’s application of the sentencing guidelines
is reviewed de novo, and its factual findings are reviewed for
clear error.1
Baltimore’s firearm was in plain view in the car he was
driving. After Baltimore was detained, a clear plastic bag
containing 13.3 grams of crack cocaine fell to the floor from his
rear pants area. Given that the gun and the drugs had been in
close proximity to one another, the physical and functional nexus
between the drugs and the gun was met such that he was in
possession of the gun while committing the offense of possession of
crack cocaine with intent to distribute.2
Baltimore also argues that 18 U.S.C. § 922(g)(1) is
unconstitutional because it requires only a minimal Commerce Clause
nexus. He acknowledges that this argument is foreclosed by this
court’s decision in United States v. Daugherty,3 but seeks to
preserve the argument for further review. Baltimore’s sentence is
AFFIRMED.
1
United States v. Vasquez, 298 F.3d 354, 356 (5th Cir. 2002).
2
See United States v. Mitchell, 166 F.3d 748, 755-56 (5th Cir.
1999).
3
264 F.3d 513 (5th Cir. 2001), cert. denied, 122 S. Ct. 1113
(2002).
2