United States v. Hubert

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20863 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNY TERRELL HUBERT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-188-ALL -------------------- September 6, 2002

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Kenny Terrell Hubert appeals from his conviction for being a

felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924

(a)(2). Terrell first argues that evidence of the pistol found in

the trunk of his vehicle should have been suppressed because the

search was conducted without a warrant and in the absence of

probable cause. After a thorough review of the record, we conclude

that based on the police officers’ plain-view observation of a

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. glass vial in Hubert’s vehicle, which in the experience of Officer

Rodriguez commonly contains phencyclidine hydrochloride (PCP), and

the officers’ determination that Hubert was under the influence of

a controlled substance, the totality of the circumstances provided

probable cause to seize the vial. See Texas v. Brown, 460 U.S.

730, 742-43 (1983). Upon opening the door to retrieve the vial,

the officers detected the distinctive and unmistakable smell of PCP

in Hubert’s vehicle, which provided the probable cause necessary to

search the entire vehicle, including the trunk. See United States

v. McSween, 53 F.3d 684, 687 (5th Cir. 1993). In view of the

foregoing, Hubert has not shown that the district court erred in

denying his suppression motion.

Hubert also argues that evidence showing that the pistol had

crossed state lines at some point in the past is insufficient to

establish a “substantial” effect on interstate commerce. Hubert

concedes that this argument is foreclosed by this court’s precedent

and indicates that it is presented here solely to preserve the

issue for Supreme Court review.

The “in or affecting commerce” element of 18 U.S.C. §

922(g)(1) requires only a minimal nexus between the firearm and

interstate commerce. See United States v. Gresham, 118 F.3d 258,

265 (5th Cir. 1997). This element is satisfied because the firearm

possessed by Hubert previously traveled in interstate commerce.

See United States v. Daugherty, 264 F.3d 513, 518 & n.12 (5th Cir.

2001), cert. denied, 122 S. Ct. 1113 (2002). As one panel of this

2 court may not overrule or ignore a prior panel decision, see United

States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), this issue is

foreclosed.

Accordingly, Hubert’s conviction is

AFFIRMED.