United States v. Martin ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY DWAYNE MARTIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-336-ALL
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January 15, 2003
Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Anthony Dwayne Martin appeals his bench-trial conviction for
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Martin first argues that 18
U.S.C. § 922(g)(1) is unconstitutional on its face and as applied
to him. Martin acknowledges that his arguments are foreclosed by
circuit precedent, but he raises them to preserve review by the
Supreme Court. Martin’s arguments are indeed foreclosed. See,
*
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that this opinion should not be published and is not precedent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. 02-20138
-2-
e.g., United States v. Cavazos, 288 F.3d 706, 712 (5th Cir.),
cert. denied, 123 S. Ct. 253 (2002). Accordingly, the judgment
of the district court is AFFIRMED in part.
Martin argues that his conviction for unauthorized use of a
motor vehicle is not a crime of violence and should not have been
considered for sentencing enhancement purposes under U.S.S.G.
§§ 2K2.1 and 4B1.2. The Government concedes that Martin’s
conviction for unauthorized use of a motor vehicle is not a crime
of violence and requires that Martin’s case be remanded for
sentencing. We therefore VACATE the sentence and REMAND for
resentencing consistent with United States v. Charles, 301 F.3d
309 (5th Cir. 2002) (en banc).
AFFIRMED IN PART; VACATED IN PART and REMANDED FOR
RESENTENCING.