United States v. Evans

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40106 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ANTHONY EVANS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CR-3-ALL -------------------- October 28, 2002

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Mark Anthony Evans appeals his conviction and sentence for

possession with intent to distribute crack cocaine and being a

felon in possession of a firearm. He raises two arguments, both of

which he concedes are foreclosed and raised only to preserve their

further review.

Evans first argues that the evidence was insufficient to

support a finding that the firearm at issue traveled in interstate

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. commerce, because 18 U.S.C. § 922(g) cannot be constitutionally

construed to cover the intrastate possession of a handgun merely

because it traveled across state lines at some point in the past.

This issue is foreclosed by United States v. Daugherty, 264 F.3d

513 (5th Cir. 2001), cert. denied, 122 S. Ct. 1113 (2002). Evans

additionally argues pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000), that 21 U.S.C. § 841(a)&(b) are facially

unconstitutional. That issue is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001). As Evans recognizes, we are bound by this

court’s precedent absent an intervening Supreme Court decision or

a subsequent en banc decision. See United States v. Short, 181

F.3d 620, 624 (5th Cir. 1999).

AFFIRMED.