United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2006
Charles R. Fulbruge III
Clerk
No. 06-60127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN TURNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:04-CR-7
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Turner was convicted of violating 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) by being a felon in possession of
ammunition. He appeals his conviction and the 120-month term of
imprisonment imposed in his case.
For the first time on appeal, Turner argues that § 922(g) is
unconstitutional on its face because it does not require a
substantial effect on interstate commerce and is, thus, an improper
exercise of Congress’ power under the Commerce Clause. As Turner
acknowledges, however, his argument is foreclosed. This court has
*
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this opinion should not be published and is not precedent except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. 06-60127
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held that “the constitutionality of § 922(g) is not open to
question.” United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001) (internal quotation marks omitted).
Also for the first time on appeal, Turner argues that § 922(g)
is unconstitutional as applied in his case because the fact
established at his trial, that the ammunition he possessed had, at
some unspecified time, moved in interstate commerce, was
insufficient to prove a substantial effect on interstate commerce.
Turner’s argument lacks merit. The Government need only establish
that ammunition was manufactured out of state to satisfy the
interstate commerce element of the offense. United States v.
Guidry, 406 F.3d 314, 318-19 (5th Cir.), cert. denied, 126 S. Ct.
190 (2005).
Turner argues that the evidence was insufficient to support
his conviction of being a felon in possession of ammunition as that
term is defined for purposes of § 922(g)(1). He also contends that
the evidence was insufficient to establish that any of the complete
shotgun shells he possessed were shown to have moved in interstate
commerce. However, a rational trier of fact could have found that
the evidence produced at trial established the essential elements
of Turner’s offense beyond a reasonable doubt. See United States
v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003); Guidry, 406 F.3d
at 318.
Turner argues that the district court abdicated its
gate-keeping responsibilities under Daubert v. Merrell Dow
No. 06-60127
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Pharmaceuticals, Inc., 509 U.S. 579 (1993) by allowing a Government
witness to testify as an expert regarding the difficulty of lifting
fingerprints from a shotgun shell. However, a review of the record
indicates that the Government’s witness possessed sufficient
qualifications to be considered an expert in fingerprint
examination and that his testimony was reliable and relevant. The
district court did not abuse its discretion in allowing the
testimony. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 274
(5th Cir. 1998)
Finally, Turner argues that the district court erred in
calculating his sentence under U.S.S.G. § 2K1.1(c)(1)(A), by cross
referencing § 2X1.1, and ultimately § 2A2.1(a)(1), and (b)(1)(B).
The district court’s findings that Turner’s substantive offense
constituted assault with intent to commit murder, and that Turner’s
victim, Arthur Sims, sustained a serious bodily injury are
supported by the evidence and are therefore not clearly erroneous.
See United States v. Villanueva, 408 F.3d 193, 203 n.9. (5th Cir.),
cert. denied, 126 S. Ct. 268 (2005).
In light of those findings, the district court did not err in
applying the Guidelines. See id. at 202. Moreover, the sentence
imposed in Turner’s case is reasonable. United States v. Johnson,
445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006).
The judgment of the district court is AFFIRMED.