IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41062
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GEORGE HAIRSTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-338-1
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December 10, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David George Hairston was convicted by a jury of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). On appeal, he raises challenges to his
conviction and sentence.
Hairston first challenges his conviction, arguing that 18
U.S.C. § 922(g) is unconstitutional on its face or,
alternatively, is unconstitutional as applied. Hairston
*
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that this opinion should not be published and is not precedent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. 00-41062
-2-
acknowledges, however, that his arguments are foreclosed by this
court’s precedent and they are raised solely to preserve them for
possible Supreme Court review.
Hairston’s arguments are indeed foreclosed by this court’s
decisions in United States v. Cavazos, 288 F.3d 706, 712 (5th
Cir. 2002), cert. denied, (U.S. Oct. 7, 2002) (No. 02-5348) and
United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001),
cert. denied, 534 U.S. 1150 (2002). Accordingly, he is not
entitled to relief.
Hairston also argues that his conviction should be reversed
because the district court abused its discretion when it gave a
supplemental jury instruction. Because Hairston did not object
to the charge at trial, his claim is subject to plain error
review. See United States v. Harris, 104 F.3d 1465, 1471-72 (5th
Cir. 1997). Hairston has not shown that the district court
plainly erred when, in response to a note from the jury, the
court provided the jury with the Fifth Circuit pattern jury
instruction on the issue of possession. Id.; see also United
States v. Munoz, 150 F.3d 401, 415 (5th Cir. 1998). Accordingly,
his conviction is affirmed.
Hairston challenges his sentence on two grounds. Because he
did not raise his sentencing objections below, his claims are
subject to plain error review. United States v. Rodriguez, 15
F.3d 408, 414 (5th Cir. 1994).
No. 00-41062
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Hairston argues that the district court erred in determining
that his prior theft convictions were not “related” for purposes
of U.S.S.G. § 4A1.2(a)(2). Additionally, he argues that his
prior theft offenses should not have been included in his
criminal history calculation because the theft offenses are
similar to an excluded misdemeanor offense listed in U.S.S.G.
§ 4A1.2(c)(1). Hairston’s arguments are dependent on questions
of fact that were capable of resolution by the district court.
Accordingly, he cannot demonstrate plain error. See United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001).
AFFIRMED.