IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20959
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOHAMMED ABDULALI SALEEM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-01-CR-375-1)
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May 1, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mohammed Abdulali Saleem was convicted on
a plea of guilty to possession of a firearm by an illegal alien.
He now appeals his conviction and sentence. We review Saleem’s
sentencing arguments for plain error because he did not raise these
issues in the district court. See United States v. Krout, 66 F.3d
1420, 1434 (5th Cir. 1995).
Saleem argues that the district court erroneously relied on
U.S.S.G. § 2K2.1(b)(5) to increase his offense level on the basis
*
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this opinion should not be published and is not precedent except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.
that he possessed a firearm in connection with the commission of
another felony, the submission of a false ATF Form 4773. Saleem
notes that the commentary to § 2K2.1(b)(5) provides that “firearms
possession or trafficking offenses” should not serve as the basis
for the § 2K2.1(b)(5) enhancement. See U.S.S.G. § 2K2.1(b)(5),
cmt. n.18. He contends that his submission of a false ATF form is
both a firearms possession offense and a firearms trafficking
offense.
Under the plain error standard, we review Saleem’s argument to
determine whether: (1) there is an error, (2) it is clear or
obvious, and (3) it affects his substantial rights. United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). If
these conditions are satisfied, we may correct the error, but only
if it "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." See United States v. Olano,
507 U.S. 725, 732 (1993)(internal quotation and citations omitted).
As the interpretation of Comment 18 to U.S.S.G. § 2K2.1(b)(5) is an
issue of first impression in this circuit, it cannot constitute a
“clear or obvious” error.
Saleem also argues that, because possession of a firearm is a
continuing offense, the § 2K2.1(b)(5) enhancement is improper
because his submission of the false ATF form was contemporaneous
with his possession of the firearm. There is no merit to Saleem’s
argument. See United States v. Armstead, 114 F.3d 504, 513-14 (5th
Cir. 1997).
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Finally, Saleem argues that his conviction is unconstitutional
because there is an inadequate nexus to interstate commerce to
support federal jurisdiction and to establish a violation of 18
U.S.C. § 922(g)(5). Saleem acknowledges that his argument is
foreclosed by Fifth Circuit precedent, see, e.g., United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), conceding that he
raises the issue merely to preserve it for Supreme Court review.
As we are bound by our own precedent, see United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v.
Short, 181 F.3d 620, 624 (5th Cir. 1999), however, we must affirm
Saleem’s conviction based on his guilty plea.
For the foregoing reasons, Saleem’s conviction and his
sentence are, in all respects,
AFFIRMED.
3