USA v. Turner, No. 06-60127 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 3, 2006 Charles R. Fulbruge III Clerk No. 06-60127 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEPHEN TURNER, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:04-CR-7 -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Stephen Turner was convicted of violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) by being a felon in possession of ammunition. He appeals his conviction and the 120-month term of imprisonment imposed in his case. For the first time on appeal, Turner argues that § 922(g) is unconstitutional on its face because it does not require a substantial effect on interstate commerce and is, thus, an improper exercise of Congress power under the Commerce Clause. acknowledges, however, his argument is foreclosed. * As Turner This court has 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60127 -2held that the constitutionality of § 922(g) is not open to question. United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) (internal quotation marks omitted). Also for the first time on appeal, Turner argues that § 922(g) is unconstitutional as applied in his case because the fact established at his trial, that the ammunition he possessed had, at some unspecified time, moved in interstate commerce, was insufficient to prove a substantial effect on interstate commerce. Turner s argument lacks merit. The Government need only establish that ammunition was manufactured out of state to satisfy the interstate commerce element of the offense. United States v. Guidry, 406 F.3d 314, 318-19 (5th Cir.), cert. denied, 126 S. Ct. 190 (2005). Turner argues that the evidence was insufficient to support his conviction of being a felon in possession of ammunition as that term is defined for purposes of § 922(g)(1). He also contends that the evidence was insufficient to establish that any of the complete shotgun shells he possessed were shown to have moved in interstate commerce. However, a rational trier of fact could have found that the evidence produced at trial established the essential elements of Turner s offense beyond a reasonable doubt. See United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003); Guidry, 406 F.3d at 318. Turner gate-keeping argues that the responsibilities district under court Daubert abdicated v. its Merrell Dow No. 06-60127 -3Pharmaceuticals, Inc., 509 U.S. 579 (1993) by allowing a Government witness to testify as an expert regarding the difficulty of lifting fingerprints from a shotgun shell. However, a review of the record indicates witness that qualifications the to Government s be considered an possessed expert in sufficient fingerprint examination and that his testimony was reliable and relevant. The district court the testimony. did not abuse its discretion in allowing See Moore v. Ashland Chemical Inc., 151 F.3d 269, 274 (5th Cir. 1998) Finally, Turner argues that the district court erred in calculating his sentence under U.S.S.G. § 2K1.1(c)(1)(A), by cross referencing § 2X1.1, and ultimately § 2A2.1(a)(1), and (b)(1)(B). The district court s findings that Turner s substantive offense constituted assault with intent to commit murder, and that Turner s victim, Arthur Sims, sustained a serious bodily injury are supported by the evidence and are therefore not clearly erroneous. See United States v. Villanueva, 408 F.3d 193, 203 n.9. (5th Cir.), cert. denied, 126 S. Ct. 268 (2005). In light of those findings, the district court did not err in applying the Guidelines. See id. at 202. imposed in Turner s case is reasonable. Moreover, the sentence United States v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). The judgment of the district court is AFFIRMED.
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