IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMPIE THOMPSON, III,
also known as Sampie Thompson,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
4:00-CR-267-1-E
May 15, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Sampie Thompson appeals his conviction and sentence for
possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). We affirm.
Thompson claims that the factual basis for his guilty pleas
was insufficient to support his conviction. We conclude that the
district court’s finding of adequate factual basis was not clearly
*
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this opinion should not be published and is not precedent except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.
erroneous, given the testimony of Thompson’s fiancee and other
portions of the record.
Thompson argues that 18 U.S.C. § 922(g)(1) cannot
constitutionally be construed to proscribe interstate possession of
a firearm when the only interstate nexus is the fact that it
traveled across a state line at some time in the past. He concedes
that this issue is foreclosed by our decision in United States v.
Daugherty,1 and raises it only to preserve the issue for Supreme
Court review.
Thompson also claims that 18 U.S.C. § 922(g)(1) violates due
process and the Second Amendment by authorizing a conviction
without requiring proof that the defendant knew that his conduct
was illegal, relying upon the district court opinion that we
reversed in United States v. Emerson.2 He seeks only to preserve
this issue for Supreme Court review.
Thompson contends that the district court erred by treating
two of his prior convictions as unrelated for sentencing purposes,
pursuant to U.S.S.G. § 4A1.2(a)(2). The first conviction was for
delivery of less than 28 grams of cocaine, committed on August 29,
1990. Thompson pled guilty on March 5, 1992, and was sentenced to
a seven-year prison term. The second conviction was for possession
of less than 28 grams of cocaine on March 22, 1991. On April 12,
1991, Thompson pled guilty and received eight years’ probation,
1
264 F. 3d 513, 518 (5th Cir. 2001).
2
270 F.3d 203 (5th Cir. 2001).
which was revoked on March 6, 1992, and he was sentenced on the
same day to another seven-year prison term, concurrent with his
other seven-year sentence. Thompson committed the two offenses on
different dates and was originally sentenced in each case on a
different date. The district court did not abuse its discretion in
finding that the two offenses are not related for § 4A1.2 purposes.
Thompson argues that his counsel was ineffective for advising
and permitting him to plead guilty. Thompson has since withdrawn
his claim that the district court erred by denying his motion to
withdraw his plea, and thus cannot satisfy Strickland’s prejudice
requirement.3
Thompson also argues that counsel was ineffective by failing
to file a motion to suppress and other pretrial motions. This claim
has not been properly presented to the district court, and we do
not consider this claim because the record is inadequate to enable
us to evaluate it fairly on the merits.4
Thompson also asserts that the district court abused its
discretion by denying his motion for a continuance of the hearing
on his request to withdraw his guilty plea. Thompson mooted this
claim by withdrawing his claim that the district court abused its
discretion by denying his motion to withdraw the plea.
AFFIRMED.
3
Hill v. Lockhart, 474 U.S. 52, 58-60 (1985).
4
See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992).