USA v. Battin, No. 06-51280 (5th Cir. 2007)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 21, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-51280 Conference Calendar UNITED STATES OF AMERICA Plaintiff-Appellee v. BRENT BATTIN Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:05-CR-609-ALL Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Brent Battin appeals following his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that his prior Texas state conviction for felony evading arrest was not a qualifying predicate offense punishable by imprisonment for a term exceeding one year. Although he acknowledges that the offense was a state jail felony, he argues that his plea agreement provided that he would be sentenced in accordance with TEX. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51280 PENAL CODE ANN. § 12.44(a), which allows punishment as if the crime were a Class A misdemeanor subject to a maximum one-year sentence. We have previously rejected a nearly identical argument. United States v. Rivera-Perez, 322 F.3d 350, 351-52 (5th Cir. 2003). Battin correctly concedes that his argument is foreclosed, and he states that he raises the issue to preserve it for possible further review. Battin also argues that § 922(g)(1) is unconstitutional because the statute does not require a substantial effect on interstate commerce and it exceeds Congress authority under the Commerce Clause. Battin s challenge to the constitutionality of § 922(g)(1) is also foreclosed by circuit precedent. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996). Battin concedes as much and indicates that he raises this issue also to preserve it for further review. AFFIRMED. 2
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