United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELDEN LEE HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-759-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Elden Lee Harris entered a guilty plea to one count of felon
in possession of a firearm and was sentenced to forty months’
imprisonment and three years’ supervised release. Harris appeals
his conviction and sentence.
Harris asserts that the district court clearly erred when it
increased his offense level pursuant to U.S.S.G. § 2K2.1(b)(5)
for possession of a firearm in connection with another felony
*
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that this opinion should not be published and is not precedent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. 03-40476
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offense. He argues that the “other felony offense” used by the
district court as grounds for the U.S.S.G. § 2K2.1(b)(5)
increase, i.e., assault by offensive touching of a public
servant, is not a felony under Texas law.
We review the district court’s findings for clear error and
its legal interpretation of the guidelines de novo. United
States v. Armstead, 114 F.3d 504, 507 (5th Cir. 1997). A finding
is clearly erroneous only if “it is implausible in light of the
record as a whole.” United States v. Condren, 18 F.3d 1190, 1199
(5th Cir. 1994).
Section 2K2.1(b)(5), U.S.S.G., mandates a four-level
increase if the defendant used or possessed any firearm in
connection with another felony offense. Another “felony offense”
is defined as any federal, state, or local offense that is
punishable by a term of imprisonment that exceeds one year
“whether or not a criminal charge was brought, or a conviction
obtained.” U.S.S.G. § 2K2.1, comment. (n.7)).
Under Texas law, a person commits a third-degree felony
assault when he knowingly causes bodily injury to a person whom
he knows is a public servant lawfully discharging an official
duty. Tex. Penal Code § 22.01 (a)(1) & (b) (Vernon 2003); Bryant
v. Texas, 47 S.W.3d 80 (Tex. Ct. App. 2001). Campus police
officers are peace officers. Tex. Code Crim. Proc. art.
§ 2.12(8) (West Supp. 1993); State v. Carroll, 855 S.W.2d 128,
129 (Tex. Ct. App. 1993). Bodily injury is defined as “‘physical
No. 03-40476
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pain, illness, or any impairment of physical condition.’” Tex.
Penal Code Ann. § 1.07(a)(8) (Vernon 2003).
The record supports the U.S.S.G. § 2K2.1(b)(5) increase.
See Tex. Code Crim. Proc. art. § 22.01(a)(1) & (b); Bryant v.
State, 47 S.W.3d 80, 82-83 (Tex. Ct. App. 2001). The district
court’s finding that Harris’ conduct supported the U.S.S.G.
§ 2K2.1(b)(5) increase is not implausible in light of the record
as a whole. Condren, 18 F.3d at 1199; see United States v.
McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995) (district court’s
judgment may be affirmed on any alternative ground that is
supported by the record).
Harris challenges his 18 U.S.C. § 922(g)(1) conviction as a
violation of the Commerce Clause and the Tenth Amendment. He
argues that the Government did not produce evidence that the
firearm was in or substantially affected interstate commerce. He
asserts that evidence showing that at some point the firearm
traveled in interstate commerce does not satisfy the
jurisdictional element of 18 U.S.C. § 922(g)(1). Harris also
asserts that his indictment and the factual basis for his plea
were insufficient because the evidence established only that the
firearm had traveled across state lines at some unspecified point
in the past.
Harris acknowledges that he raises these arguments solely to
preserve them for possible Supreme Court review. As he concedes,
the arguments are foreclosed by existing Fifth Circuit precedent.
No. 03-40476
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See United States v. Darrington, ___ F.3d ___, 2003 WL 22706079
at *2 (5th Cir. Nov. 18, 2003) (No. 03-20052); United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
The judgment of the district court is AFFIRMED.