United States v. Cano , 166 F. App'x 754 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-40219
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS CANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-381-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Santos Cano for possession of ammunition by
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), 924(e)(1). The district court determined that Cano
was an armed career criminal and sentenced him to the statutory
minimum, 180 months of imprisonment, pursuant to § 924(e).
Cano argues that the district court abused its discretion in
refusing to give his requested jury instruction on the
justification defense. Cano failed to establish that there was a
*
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this opinion should not be published and is not precedent except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. 05-40219
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present, imminent, and impending threat or that he had no
opportunity to pursue legal alternatives during the entire time
that he was in possession of the ammunition. Accordingly, he has
not shown that he was entitled to assert the defense of
justification. See United States v. Posada-Rios, 158 F.3d 832,
873 (5th Cir. 1998). Because he has not shown that he was
entitled to assert the justification defense, he likewise has not
shown that the district court abused its discretion in denying
his requested jury instruction.
Cano also argues that the district court erred in
determining that his Texas convictions for burglary of a
habitation were qualifying violent felony convictions under
§ 924(e). Cano contends that this court’s holding to the
contrary in United States v. Silva, 957 F.2d 157, 162 (5th Cir.
1992), was undercut by Shepard v. United States, 125 S. Ct. 1254(2005). Shepard did not undercut Silva; Shepard extended the
holding of Taylor v. United States, 495 U.S. 575 (1990), to cases
in the guilty-plea context and clarified which documents could be
considered when determining whether a prior conviction was for a
generic burglary and could be used to enhance a sentence under
the Armed Career Criminal Act. See Shepard 125 S. Ct. at 1259,
1263. Alternatively, Cano concedes that his argument is
foreclosed by Silva, but he nevertheless raises it here to
preserve it for further review.
No. 05-40219
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Cano additionally argues that § 924(e) is facially
unconstitutional or, in the alternative, that his sentence was
improperly enhanced under § 924(e) because the indictment did not
contain any information regarding his prior convictions. He
concedes that these arguments are foreclosed by circuit
precedent. See United States v. Stone, 306 F.3d 241, 243 (5th
Cir. 2002); United States v. Affleck, 861 F.2d 97, 99 (5th Cir.
1988). He further concedes that these arguments are foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Cano
is raising the arguments to preserve them for possible further
review.
Cano finally argues that the statute of conviction,
§ 922(g)(1), is unconstitutional because it does not require a
substantial effect on interstate commerce and is, thus, an
improper exercise of Congress’ power under the Commerce Clause.
Cano contends that the Supreme Court’s decisions in Jones v.
United States, 529 U.S. 848 (2000), United States v. Morrison,
529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549(1995), require that the ammunition possession has a
“substantial” effect on interstate commerce.
“This court has repeatedly emphasized that the
constitutionality of § 922(g)(1) is not open to question.”
United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
This court also has determined that “[n]either Jones nor Morrison
No. 05-40219
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affects or undermines the constitutionality of § 922(g).” United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Alternatively, Cano argues that the facts established at
trail, that the ammunition which he possessed had, at some
unspecified time, moved in interstate commerce, were insufficient
to prove a substantial effect on interstate commerce. This court
repeatedly has affirmed § 922(g)(1) convictions on evidence
similar to that presented in the instant case. See id. at 518
& n.12 (concluding that § 922(g)(1)’s interstate commerce element
is satisfied by the defendant’s possession of a firearm that was
manufactured in a different state or country). Cano concedes
that his arguments are foreclosed by circuit precedent, but he
wishes to preserve them for further review.
Accordingly, the judgment of the district court is AFFIRMED.