United States v. Nicholas Sides

Case: 15-11204 Document: 00513660954 Page: 1 Date Filed: 09/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11204 FILED
Summary Calendar September 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NICHOLAS SCOTT SIDES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-136-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Nicholas Scott Sides appeals his guilty plea conviction and his 120-
month sentence of imprisonment for being a felon in possession of a firearm.
See 18 U.S.C. §§ 922(g), 924(a)(2). The Government moves for summary
affirmance and, alternatively, for an extension of time to file its brief.
There is no merit to Sides’s contention that the use of a prior felony
conviction both as the necessary predicate for his felon-in-possession offense
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-11204 Document: 00513660954 Page: 2 Date Filed: 09/01/2016
No. 15-11204
and to increase his criminal history category constitutes double counting
prohibited by the Sentencing Guidelines. “[T]he Guidelines do not prohibit
double counting except when the particular Guideline at issue expressly does
so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999). In United States
v. Hawkins, 69 F.3d 11, 14-15 (5th Cir. 1995), we held that the Guidelines
permit the district court to consider a defendant’s prior felony convictions in
calculating both his offense level under U.S.S.G. § 2K2.1(a)(1) and his criminal
history category. “Because one of the elements of the crime of possession of a
firearm under § 922(g)(1) [is] that the defendant have a prior felony conviction,
one of [the defendant’s] convictions must be used in calculating his offense
level.” Id. at 15.
Sides correctly acknowledges that United States v. Alcantar, 733 F.3d
143, 145-46 (5th Cir. 2013), forecloses his argument, based on Nat’l Fed’n of
Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (NFIB), that § 922(g) is
unconstitutional facially and as applied to him because it regulates conduct
that falls outside of the Government’s power to regulate commerce. As we
explained, NFIB “did not address the constitutionality of § 922(g)(1), and it did
not express an intention to overrule the precedents upon which our cases-and
numerous other cases in other circuits-relied in finding statutes such as
§ 922(g)(1) constitutional.” Alcantar, 733 F.3d at 146.
Finally, Sides correctly concedes that our decision in United States v.
Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), forecloses his argument that his
charging document fails to allege the proper mens rea for a felon-in-possession
offense. In United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009), we
explained that Dancy is still good law even after the Supreme Court’s decision
in Flores-Figueroa v. United States, 556 U.S. 646 (2009), on which Sides relies.
Sides asserts that Dancy should be overruled, but one panel of this court may
2
Case: 15-11204 Document: 00513660954 Page: 3 Date Filed: 09/01/2016
No. 15-11204
not overrule the decision of another absent a superseding en banc or Supreme
Court decision. United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir.
2002).
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED, and its alternative motion for
an extension of time to file its brief is DENIED.
3