United States v. Hardy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10957
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME MACK HARDY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-443-ALL-D
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April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jerome Mack Hardy appeals his conviction and sentence for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). He first argues that the district court erred
in sentencing him to the highest end of the applicable guidelines
range. This argument fails because there is no authority by
which a defendant may challenge where his sentence falls within a
properly calculated guidelines range. See United States v. Pena,
125 F.3d 285, 286 (5th Cir. 1997); United States v. O’Banion, 943
*
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that this opinion should not be published and is not precedent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. 01-10957
-2-
F.2d 1422, 1431 (5th Cir. 1991); see also United States v. Byrd,
263 F.3d 705, 707 (7th Cir. 2001).
Hardy next argues that the evidence was insufficient to
sustain his conviction. Three elements are required to prove an
offense under 18 U.S.C. § 922(g)(1): “(1) that the defendant had
previously been convicted of a felony; (2) that he possessed a
firearm; and (3) that the firearm traveled in or affected
interstate commerce.” United States v. Gresham, 118 F.3d 258,
265 (5th Cir. 1997). Hardy challenges the third element, arguing
essentially that 18 U.S.C. § 922(g)(1) cannot constitutionally be
construed to cover the intrastate possession of a handgun merely
because it traveled across state lines at some unspecified point
in the past. As he concedes,** however, this argument is
foreclosed by United States v. Daugherty, 264 F.3d 513, 518 (5th
Cir. 2001), cert. denied, 122 S. Ct. 1113 (2002).
Hardy has not demonstrated any error in the district court’s
judgment. Accordingly, that judgment is AFFIRMED.
**
Hardy seeks to preserve the issue for Supreme Court
review.