United States v. Washington

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 10, 2006

Charles R. Fulbruge III Clerk No. 06-50032 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMEL WASHINGTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 1:05-CR-170-ALL --------------------

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Jamel Washington pleaded guilty to possession of a controlled

substance with intent to distribute and to being a felon in

possession of a firearm. The district court sentenced Washington

to 262 months of imprisonment and eight years of supervised release

on the drug count. The district court sentenced Washington to 120

months of imprisonment and three years of supervised release on the

firearm count. The terms were to be served concurrently.

Washington appeals, arguing that his sentence, imposed after the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), was unreasonable because it was greater than necessary to

meet the goals of 18 U.S.C. § 3553(a).

The record shows that the district court fulfilled its duty to

consider all of the § 3553 factors and sentenced Washington to 262

months of imprisonment, the lowest end of the sentencing guidelines

range. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005). This sentence is within

the properly calculated advisory guidelines range and is

presumptively reasonable. See United States v. Alonzo, 435 F.3d

551, 554-55 (5th Cir. 2006). There is no indication that the

sentence imposed was unreasonable. See Mares, 402 F.3d at 519.

Washington argues that 18 U.S.C. § 922(g) is facially

unconstitutional and unconstitutional as applied because the

Government failed to establish the interstate commerce element.

Washington concedes that his constitutional challenge is foreclosed

by circuit precedent, and he raises it only to preserve it for

review by the Supreme Court. See United States v. Daugherty,

264 F.3d 513, 318 (5th Cir. 2001); United States v. Guidry,

406 F.3d 314, 318-19 (5th Cir.), cert. denied, 126 S. Ct. 190

(2005).

Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Washington

argues that his sentence is unconstitutional because it was

enhanced on the basis of his prior convictions, which were neither

admitted by him nor submitted for proof to the jury. Washington

2 concedes that this contention is foreclosed by circuit precedent,

and he raises it only to preserve it for further review.

See Shepard v. United States, 125 S. Ct. 1254, 1262-63 & n.5

(2005); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.