United States v. Enriquez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 8, 2006

Charles R. Fulbruge III
Clerk
No. 05-20073
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERASMO MARTINEZ ENRIQUEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-39-ALL

Before JONES, Chief Judge, and DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

Erasmo Martinez Enriquez appeals his conviction and

sentence for possession of a firearm by a convicted felon,

challenging the guidelines calculation, the sufficiency of the

district court’s articulation of its sentencing decision, and the

requirement that he submit to DNA testing.

Enriquez first argues that the district court misapplied

the Sentencing Guidelines in failing to apply the reduction for

sporting use under U.S.S.G. § 2K2.1(b)(2). He argues that 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opinion should not be published and is not precedent except under the limited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.
undisputed evidence before the district court was that the rifles

were purchased by Enriquez’s sons’ mother for hunting and that

Enriquez used the rifles to hunt snakes and other pests on his

property that he shared with his sons. He argues that, therefore,

the evidence showed that the rifles were used to shoot varmints and

that varmint hunting is a lawful sporting use.

The district court was able to rely upon the presentence

report’s statements that Enriquez had initially denied owning any

rifles as evidence that Enriquez’s assertions that the rifles were

used for “varmint hunting” were not credible. See United States v.

Brown, 54 F.3d 234, 242 (5th Cir. 1995). The district court did

not clearly err in finding that the reduction for “sporting use”

was not warranted. See United States v. Shell, 972 F.2d 548, 550

(5th Cir. 1992).

Enriquez also argues that the district court did not

consider and tailor its sentence in light of the sentencing factors

in 18 U.S.C. § 3553(a) as required by United States v. Booker, 125

S. Ct. 738 (2005). However, because the court issued a sentence

within the Guidelines, the district court was not required to

consider explicitly those factors on the record, and Enriquez’s

argument fails. See United States v. Mares, 402 F.3d 511, 519

(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

For the first time on appeal, Enriquez argues that the

district court abused its discretion in subjecting him to the

collection of DNA as a term of his supervised release under 42

2
U.S.C. § 14135A(d). He argues that the version of 42 U.S.C.

§ 14135a(d) that was in effect at the time of the offense does not

list his offense of conviction as one of the offenses for which DNA

collection was authorized. He argues that the amendment of that

statute on October 30, 2004, to authorize DNA collection upon

conviction of “any felony” cannot be applied to him because

collection of DNA is a punishment and would violate the Ex Post

Facto Clause. He further argues that even if application of the

statute is not a violation of the Ex Post Facto Clause it is still

forbidden by general principles of nonretroactivity.

Enriquez’s claim regarding collection of DNA on

supervised release is not ripe for review. See United States v.

Riascos-Cuenu, 428 F.3d 1100, 1002 (5th Cir. 2005). Enriquez’s

claim is DISMISSED for lack of jurisdiction.

Finally, Enriquez argues that 18 U.S.C. § 922(g) is

facially unconstitutional because it does not require a substantial

effect on interstate commerce and, alternatively, there is an

insufficient factual basis for the application of that statute

based on the firearm’s movement from one state to another at some

indeterminate time in the past. As he concedes, the “constitu-

tionality of § 922(g) is not open to question” in this circuit.

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

The judgment and sentence of the district court are

DISMISSED IN PART; AFFIRMED IN PART.