United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL VALENCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-205-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Raul Valencia appeals from his guilty-plea conviction for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). For the first time on appeal, Valencia
argues that 18 U.S.C. § 922(g)(1) does not survive strict
scrutiny because it is not narrowly tailored, is overly broad in
its reach given the legislative history of its intent, and
unevenly burdens a fundamental right in violation of equal
*
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that this opinion should not be published and is not precedent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. 03-40322
-2-
protection by relying on inconsistent state law definitions.
Because we specifically have recognized that it is clear that
felons may be prohibited from possessing firearms, Valencia has
failed to demonstrate plain error. United States v. Emerson, 270
F.3d 203, 261 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002);
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994)(en banc).
Valencia also argues that 18 U.S.C. § 922(g)(1) is an
unconstitutional exercise of Congress’s Commerce Clause power
because the regulated activity does not substantially affect
interstate commerce. Alternatively, he argues that his
indictment was defective for failing to allege that his specific
offense substantially affected interstate commerce and that the
factual basis for his plea was insufficient because the evidence
established only that the firearm had traveled across state lines
at some unspecified point in the past. Valencia raises this
argument solely to preserve it for possible Supreme Court review.
His argument is foreclosed by existing Fifth Circuit precedent.
See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001), cert. denied, 534 U.S. 1150 (2002).
AFFIRMED.