United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-20013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEMPSHA LARTHA WILSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-248-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kempsha Lartha Wilson appeals his guilty-plea conviction and
sentence for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922 and 924.
Wilson renews his argument, preserved in the district court,
that in light of the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), his Sixth Amendment rights were
violated when the district court increased his offense-level on
*
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this opinion should not be published and is not precedent except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. 05-20013
-2-
ground that Wilson possessed the firearm in connection with
another felony, delivery of marijuana.
Where, as here, a claim of error under United States v.
Booker, 125 S. Ct. 738 (2005), “is preserved in the district
court, we will ordinarily vacate the sentence and remand, unless
we can say the error is harmless under Rule 52(a) of the Federal
Rules of Criminal Procedure.” United States v. Pineiro, 410 F.3d
282, 284 (5th Cir. 2005) (quotation marks omitted). The
Government must show “that the district court would have imposed
the same sentence absent the error.” Id. at 285.
The district court sentenced Wilson to the top of his
guidelines range, but this factor is not conclusive to show that
any error was harmless. Cf. United States v. Rodriguez-Gutierrez,
428 F.3d 201, 206-06 (5th Cir. 2005) (holding, under a plain error
standard of review, that a sentence at the maximum end of the
guidelines range is strong but not conclusive evidence that the
district court would not have imposed a lesser sentence under an
advisory guidelines scheme). Although the district court also
found the sentence to be “appropriate” to meet the sentencing
objectives of punishment and deterrence, the record contains no
other indication by the district court that it would have imposed
the same sentence absent Booker error. The Government thus cannot
meet its burden.
Wilson contends that 18 U.S.C. § 922(g)(1) is
unconstitutional because it does not require that the firearm in
No. 05-20013
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question have a “substantial” effect on interstate commerce. He
also contends that the mere movement of the firearm in interstate
commerce prior to his possession of the firearm does not establish
a sufficient nexus with interstate commerce.
As Wilson concedes, the constitutionality § 922(g) is not
open to question. United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001). Moreover, evidence similar to that presented in
Wilson’s case is sufficient to maintain a conviction under
§ 922(g)(1). See id. at 518 & n.12 (discussing decisions in which
firearms were possessed in Texas but manufactured elsewhere); see
also United States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002)
(noting that “evidence that a firearm has traveled interstate at
some point in the past is sufficient to support a conviction under
§ 922(g), even if the defendant possessed the firearm entirely
intrastate”).
Wilson’s conviction is AFFIRMED; his sentence is VACATED and
the case is REMANDED for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.