United States v. Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20607
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-86-1
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Joel Hernandez appeals his conviction for being an alien in
possession of a firearm. He argues that the statute of
conviction, 18 U.S.C. § 922(g)(5), is facially unconstitutional
and, in the alternative, that the statute is unconstitutional as
applied because the factual basis of his plea failed to establish
the interstate commerce element.
Hernandez concedes that his constitutional challenge is
foreclosed by circuit precedent, and he raises it only to
*
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this opinion should not be published and is not precedent except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. 05-20607
-2-
preserve its further review by the Supreme Court. We have indeed
held that “the constitutionality of § 922(g) is not open to
question,” United States v. Daugherty, 264 F.3d 513, 318 (5th
Cir. 2001) (internal quotation marks omitted), and, additionally,
that the Government need only establish that the firearm was
manufactured out of state to satisfy the interstate commerce
element of the offense. See United States v. Guidry, 406 F.3d
314, 318-19 (5th Cir.), cert. denied, 126 S. Ct. 190 (2005).
AFFIRMED.