United States v. Salinas

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40958 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MARTINEZ SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CR-92-1 -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Jesus Martinez Salinas appeals from his guilty-plea

conviction for possession of a firearm subsequent to a felony

conviction. He contends 18 U.S.C. § 922(g)(1), the felon-in-

possession statute, is unconstitutional on its face because it

does not require a substantial effect on interstate commerce;

that his indictment was insufficient because it did not allege a

substantial effect on interstate commerce; that there was an

insufficient factual basis for his guilty plea because the

movement of a firearm from one state to another at some

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40958 -2-

undetermined time in the past does not constitute a substantial

effect on interstate commerce; and that this court should

reconsider its jurisprudence regarding the constitutionality of

18 U.S.C. § 922(g)(1) in light of Jones v. United States, 529

U.S. 848 (2000), and United States v. Morrison, 529 U.S. 598

(2000). Martinez concedes that his arguments are foreclosed by

this court’s precedent but seeks to preserve the arguments for

Supreme Court review. Martinez contends that the special

conditions of supervised release requiring drug testing and

prohibiting alcohol were plainly erroneous because they imposed a

greater infringement of his liberty than was necessary and

because they were unsupported by the record.

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. United States v. Gresham, 118 F.3d 258, 265

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

possessed by Martinez previously traveled in interstate commerce.

United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996).

Martinez’s reliance on Morrison and Jones is misplaced. In

United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001),

cert. denied, 122 S. Ct. 1113 (2002), this court recently

determined that Morrison and Jones were distinguishable from an

18 U.S.C. § 922(g)(1) case in which the defendant, like Martinez,

had stipulated to facts showing that his firearm had traveled in

interstate commerce, emphasizing that “the constitutionality of

§ 922(g) is not open to question.” Id. (quotation and citation

omitted). No. 01-40958 -3-

Martinez did not object when the district court stated that

it intended to impose the challenged conditions of supervised

release. His contention therefore is reviewed under the plain-

error standard. United States v. Calverley, 37 F.3d 160, 162

(5th Cir. 1994)(en banc). Consideration of the factors relevant

to special conditions of supervised release requires that certain

factual findings about the defendant and the offense be made

before the determination whether the conditions imposed are

reasonably related to those factors. See 18 U.S.C. § 3583(d);

U.S.S.G. § 5D1.3(b). “Questions of fact capable of resolution by

the district court upon proper objection at sentencing can never

constitute plain error.” United States v. Lopez, 923 F.2d 47, 50

(5th Cir. 1991). The district court could have made findings

regarding Martinez and his history and could have determined how

those findings were related to the challenged conditions had

Martinez objected at sentencing. He therefore cannot demonstrate

plain error.

AFFIRMED.