United States v. Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004

Charles R. Fulbruge III
Clerk
No. 04-20146
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO GARCIA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-338-ALL
--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Ricardo Garcia appeals his guilty-plea conviction and

sentence for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1).

Garcia contends that 18 U.S.C. § 922(g)(1) is

unconstitutional on its face because the statute does not require

a “substantial” effect on interstate or foreign commerce.

Alternatively, he argues that his indictment was defective and

the factual basis for his plea was insufficient because the

*
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this opinion should not be published and is not precedent except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. 04-20146
-2-

evidence established only that the firearm had traveled across

state or country lines at some unspecified point in the past.

Garcia raises these arguments solely to preserve them for

possible Supreme Court review. As he acknowledges, they are

foreclosed by existing Fifth Circuit precedent. See United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

Garcia also contends, and the Government concedes, that the

term of imprisonment set forth in the written judgment conflicts

with the term of imprisonment imposed at the sentencing hearing.

Accordingly, this case is remanded for the district court to

amend its written judgment to conform to its oral pronouncement

at sentencing. See United States v. Martinez, 250 F.3d 941, 942

(5th Cir. 2001) (when there is a conflict between the oral

pronouncement of sentence and the written judgment, the oral

pronouncement controls).

CONVICTION AFFIRMED; REMANDED FOR AMENDMENT OF JUDGMENT.