United States v. Lytle , 90 F. App'x 453 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10617
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVA EUGENE LYTLE, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-307-ALL-P
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Alva Eugene Lytle, Jr., also known as Al Lytle and Alva
Lyttle, pleaded guilty pursuant to a written plea agreement to
being a felon in possession of ammunition transported in
interstate commerce. His sentence was enhanced due to his status
as an armed career criminal under 18 U.S.C. § 924(e).
Lytle first argues on appeal that under Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000), his sentence should not have
been enhanced based on 18 U.S.C. § 924(e) because the prior
*
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that this opinion should not be published and is not precedent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. 03-10617
-2-
convictions used to enhance his sentence were not charged by
indictment and were not proved to a jury beyond a reasonable
doubt. He concedes that he is raising this challenge to preserve
further review. This issue is foreclosed. See Almendarez-Torres
v. United States, 523 U.S. 224 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000); United States v. Stone, 306
F.3d 241, 243 (5th Cir. 2002); United States v. Affleck, 861 F.2d
97, 99 (5th Cir. 1988).
Lytle also argues that the district court’s application of
18 U.S.C. § 924(e) to his sentence resulted in a disproportionate
sentence in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment. However, under the waiver-
of-appeal provision in Lytle’s signed, written plea agreement, he
cannot raise this claim on appeal. See United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992).
Lytle next contends that the district court erred in
applying 18 U.S.C. § 924(e) to enhance his sentence because the
district court did not require the Government to present evidence
of the prior convictions used for enhancement. However, the
district court did not clearly err in using information in the
presentence report as evidence of Lytle’s prior convictions
because Lytle did not satisfy his burden of proving that the
presentence report was materially untrue, inaccurate, or
unreliable. See U.S.S.G. § 6A1.3(a), p.s.; United States v.
No. 03-10617
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Floyd, 343 F.3d 363, 371-72 (5th Cir. 2003); United States v.
Cothran, 302 F.3d 279, 286 (5th Cir. 2002).
Lytle argues that 18 U.S.C. § 922(g)(1) is unconstitutional
on its face and as applied because the statute does not require a
substantial effect on interstate commerce and because his
possession of the ammunition was not shown to have an effect on
interstate commerce. He acknowledges that his arguments are
foreclosed by circuit precedent, but he seeks to preserve the
issue for possible review. As Lytle concedes, this issue is
foreclosed. See United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242 (5th
Cir. 1996); United States v. Gresham, 118 F.3d 258, 264-65 (5th
Cir. 1997); United States v. Fitzhugh, 984 F.2d 143, 145-46 (5th
Cir. 1993).
AFFIRMED