United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 02-21340
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENDELL MITCHELL LASTRAPES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-163-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Bendell Mitchell Lastrapes appeals his guilty plea
conviction pursuant to 18 U.S.C. § 922(g) for which he received a
sentence of a term of imprisonment of 51 months to be followed by
a three-year term of supervised release.
Relying on United States v. Emerson, 270 F.3d 203, 260-65
(5th Cir. 2001), Lastrapes argues that 18 U.S.C. § 922(g)(1) is
unconstitutional in that it violates the Second Amendment right
to keep and bear arms. He further argues that the provision is
*
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that this opinion should not be published and is not precedent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. 02-21340
-2-
overbroad, it violates the Tenth Amendment by impinging on an
area of law reserved to the States, and violates the Equal
Protection Clause.
This court has rejected the proposition that Emerson
suggests that 18 U.S.C. § 922(g)(1) violates the Second
Amendment. United States v. Darrington, 351 F.3d 632, 634
(5th Cir. 2003). In Darrington, the court held that 18 U.S.C.
§ 922(g)(1) does not violate the Second Amendment, the Tenth
Amendment, the Commerce Clause, or principles of equal
protection. Id. at 633-35. Thus, 18 U.S.C. § 922(g)(1) is not
unconstitutional.
Lastrapes further argues that 18 U.S.C. § 922(g) is
unconstitutional under the Commerce Clause because it does
not require a “substantial” effect on interstate commerce.
He alternatively argues that his indictment was defective for
failing to charge that the offense had a substantial effect on
interstate commerce and that the factual basis for his guilty
plea was insufficient because the evidence established only that
the firearm was manufactured out of state and had traveled across
state lines at some unspecified time in the past.
Lastrapes raised these arguments solely to preserve them for
possible Supreme Court review. As he acknowledges, his arguments
are foreclosed by existing Fifth Circuit precedent. See United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
AFFIRMED.