United States v. Mario Garcia-Balderas , 667 F. App'x 486 ( 2016 )

Case: 15-41190 Document: 00513591979 Page: 1 Date Filed: 07/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41190
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 14, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MARIO ALBERTO GARCIA-BALDERAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-1408-1
Before HIGGINBOTHAM, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Mario Alberto Garcia-Balderas appeals his convictions and sentences of
being an alien illegally in the United States in possession of a firearm and of
being a felon in possession of a firearm for which he was sentenced to 120
months of imprisonment on each count, to run concurrently with each other.
See 18 U.S.C. § 922(g)(1), (g)(5)(A); 18 U.S.C. § 924(a)(2).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41190 Document: 00513591979 Page: 2 Date Filed: 07/14/2016
No. 15-41190
Garcia-Balderas challenges the constitutionality of § 922(g)(1) and (g)5),
arguing that the statute does not require a substantial effect on interstate
commerce or, in the alternative, that the Government adduced insufficient
evidence to show that the “mere movement” of the components of a firearm
constituted a substantial effect on interstate or foreign commerce. As he
acknowledges, his argument is foreclosed by our prior decisions holding that
§ 922(g) generally, and § 922(g)(1) in particular, is a valid exercise of
Congress’s authority under the Commerce Clause. See United States v.
Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001); United States v. Wallace, 889 F.2d 580, 583 (5th
Cir. 1989); see also United States v. Baltazar-Lopez, 273 F.3d 1099 (5th Cir.
2001) (treating § 922(g)(5) as indistinguishable from § 922(g)(1)).
Garcia-Balderas also argues that his convictions and sentences on
charges both of being an illegal alien in possession of a firearm and of being a
felon in possession of a firearm are multiplicitous and violate the Double
Jeopardy Clause. See § 922(g)(1), (g)(5). As the Government concedes, the
simultaneous charges under § 922(g)(1) and (g)(5), which arise from the same
single incident of possession of firearms, violate the constitutional prohibition
on multiple punishments for one offence. See United States v. Munoz-Romo,
989 F.2d 757, 759-60 (5th Cir. 1993).
We, therefore, VACATE the sentences and REMAND to the district court
to vacate either of the convictions and resentence Garcia-Balderas on the
remaining count.
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