United States v. Martin

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 16, 2003
• Docket: 02-20138
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20138 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY DWAYNE MARTIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-336-ALL -------------------- January 15, 2003

Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Anthony Dwayne Martin appeals his bench-trial conviction for

being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). Martin first argues that 18

U.S.C. § 922(g)(1) is unconstitutional on its face and as applied

to him. Martin acknowledges that his arguments are foreclosed by

circuit precedent, but he raises them to preserve review by the

Supreme Court. Martin’s arguments are indeed foreclosed. See,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20138 -2-

e.g., United States v. Cavazos, 288 F.3d 706, 712 (5th Cir.),

cert. denied, 123 S. Ct. 253 (2002). Accordingly, the judgment

of the district court is AFFIRMED in part.

Martin argues that his conviction for unauthorized use of a

motor vehicle is not a crime of violence and should not have been

considered for sentencing enhancement purposes under U.S.S.G.

§§ 2K2.1 and 4B1.2. The Government concedes that Martin’s

conviction for unauthorized use of a motor vehicle is not a crime

of violence and requires that Martin’s case be remanded for

sentencing. We therefore VACATE the sentence and REMAND for

resentencing consistent with United States v. Charles, 301 F.3d

309 (5th Cir. 2002) (en banc).

AFFIRMED IN PART; VACATED IN PART and REMANDED FOR

RESENTENCING.