United States v. Jose Mendez

544 F. App'x 554

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 7, 2013
• Docket: 13-40268
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Antelmo Mendez pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to the mandatory minimum sentence of 180 months of imprisonment. Represented by the Federal Public Defender, Mendez raises two arguments, in order to preserve the issues for further review, that he correctly concedes are foreclosed by circuit precedent.

Under Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 435 (2000), the Government was not required to charge in the indictment the predicate facts for the ACCA enhancement and either have Mendez admit those facts or have those facts proven to a jury. See United States v. White, 465 F.3d 250, 254 (5th Cir.2006); United States v. Stone, 306 F.3d 241, 243 (5th Cir.2002). “ ‘[Neither the [ACCA] nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for the enhancement.’ ” White, 465 F.3d at 254 (quoting Stone, 306 F.3d at 243). Likewise, Mendez’s Commerce Clause challenge to the constitutionality of § 922(g)(1) is foreclosed, and “ ‘the constitutionality of § 922(g) is not open to question.’ ” United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001) (quoting Untied States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999)).

The appellant’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.