United States v. Lopez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41144 Summary Calendar

UNITED STATES OF AMERCA,

Plaintiff-Appellee,

versus

ROBERTO LUIS LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-02-CR-94-1 --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Roberto Luis Lopez appeals his conviction and sentence

following his guilty plea conviction for being a felon in

possession of a firearm. Lopez argues that the district court

erred in enhancing his offense level pursuant to U.S.S.G.

§ 2K2.1(b)(5) based on his possession of a firearm with the intent

to commit another felony offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41144 -2-

Using Lopez’s own statements to the arresting officer, the

Government showed by a preponderance of the evidence that Lopez was

in possession of a firearm and that he had the intent to use the

weapon to commit the felony offense of aggravated assault. Thus,

the district court did not clearly err in enhancing Lopez’s offense

level pursuant to U.S.S.G. § 2K2.1(b)(5). See United States v.

Armstead, 114 F.3d 504, 507 (5th Cir. 1997).

Lopez also argues that the Government failed to prove that the

firearm was in or affected interstate commerce and, thus, his

prosecution violated the Commerce Clause and the Tenth Amendment.

He concedes that this argument is foreclosed by circuit precedent.

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

2001), cert. denied, 534 U.S. 1150 (2002). He raises the issue to

preserve it for Supreme Court review. The judgment of the district

court is AFFIRMED.