USA v. Diaz, No. 08-11208 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-11208 Conference Calendar August 18, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. BOBBY RAY DIAZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 6:08-CR-1-1 Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Bobby Ray Diaz presents arguments that he concedes are foreclosed by United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), which rejected a Commerce Clause challenge to the felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g). In addition, Diaz raises arguments that he concedes are foreclosed by United States v. Avants, 278 F.3d 510, 522 (5th Cir. 2002), which held that, although the appellant was in state custody and was represented by counsel, the Sixth Amendment right to counsel did not attach with respect to a federal charge for which the appellant * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11208 had not yet been indicted. The Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2

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