United States v. Guerra

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 6, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS OSCAR GUERRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(2:04-CR-423-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Dennis Oscar Guerra appeals his sentence following his
jury-trial conviction for possession of a firearm by a convicted
felon, in violation of 18 U.S.C.§ 922(g)(1). Based on Guerra’s
prior convictions, the district court sentenced him pursuant to the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
Guerra contends the district court plainly erred by finding
his 1997 possession-of-heroin-with-intent-to-deliver conviction
*
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this opinion should not be published and is not precedent except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.
qualified as an ACCA predicate offense. He claims the Texas
statute under which he was convicted broadly defined “deliver” to
include an offer to sell drugs — conduct that did not qualify for
the § 924(e) enhancement. Because the Government failed to prove
the specifics of his conduct, Guerra contends it also failed to
prove his offense was a qualifying ACCA predicate offense.
Because Guerra did not object in district court to the use of
this 1997 conviction as an ACCA predicate offense, we review only
for plain error. United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994).
Guerra points to no precedent in which this, or any other, court
has found that the Texas statute under which he was convicted
encompassed conduct not constituting an ACCA predicate offense.
Absent such precedent, Guerra cannot establish the district court’s
finding was error, much less plain (“clear” or “obvious”) error.
See United States v. Miller, 406 F.3d 323, 330 (5th Cir.) (“Absent
any precedent directly supporting [appellant’s] contention, it
cannot be said that the alleged error was ‘plain’ for purposes of
our review.”), cert. denied, 126 S. Ct. 207 (2005).
Guerra next contends the court erred by classifying his 1985
burglary-of-a-habitation conviction as a violent felony under the
ACCA. This issue is foreclosed by United States v. Silva, 957 F.2d
157, 161-62 (5th Cir.) (holding a Texas conviction for burglary of
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a habitation is a violent felony for ACCA purposes), cert. denied,
506 U.S. 887 (1992).
Guerra also challenges the constitutionality of § 924(e)(1)’s
treatment of violent felonies and serious drug offenses as
sentencing factors rather than as elements of an offense, and
asserts § 922(g)(1) is unconstitutional facially and as applied
because it does not require a “substantial” effect on interstate
commerce. As Guerra concedes, his assertions are foreclosed by
circuit precedent; he raises them only to preserve them for further
review. See United States v. Stone, 306 F.3d 241, 243 (5th Cir.
2002) (citing United States v. Affleck, 861 F.2d 97, 99 (5th Cir.
1988), cert. denied, 489 U.S. 1058 (1989)); United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert. denied, 534
U.S. 1150 (2002).
AFFIRMED
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