United States v. Battin , 236 F. App'x 157 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-51280
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BRENT BATTIN
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-609-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brent Battin appeals following his conviction for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that his
prior Texas state conviction for felony evading arrest was not a qualifying
predicate offense punishable by imprisonment for a term exceeding one year.
Although he acknowledges that the offense was a state jail felony, he argues that
his plea agreement provided that he would be sentenced in accordance with TEX.
*
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should not be published and is not precedent except under the limited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. 06-51280
PENAL CODE ANN. § 12.44(a), which allows punishment as if the crime were a
Class A misdemeanor subject to a maximum one-year sentence. We have
previously rejected a nearly identical argument. United States v. Rivera-Perez,
322 F.3d 350, 351-52 (5th Cir. 2003). Battin correctly concedes that his
argument is foreclosed, and he states that he raises the issue to preserve it for
possible further review.
Battin also argues that § 922(g)(1) is unconstitutional because the statute
does not require a “substantial” effect on interstate commerce and it exceeds
Congress’ authority under the Commerce Clause. Battin’s challenge to the
constitutionality of § 922(g)(1) is also foreclosed by circuit precedent. 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). Battin concedes as much and indicates that he
raises this issue also to preserve it for further review.
AFFIRMED.
2