United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20524
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMILIANO LUGO-VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-534-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Emiliano Lugo-Vargas (Lugo) appeals following his guilty
plea to being an alien in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(5). He argues that § 922(g)(5) is facially
unconstitutional and, in the alternative, that the statute is
unconstitutional as applied because the factual basis of his plea
failed to establish the interstate commerce element. Lugo
concedes that his constitutional challenge is foreclosed by
circuit precedent, and he raises it only to preserve it for
review by the Supreme Court. We have held 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this opinion should not be published and is not precedent except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.
No. 05-20524
-2-
constitutionality of § 922(g) is not open to question,” United
States v. Daugherty, 264 F.3d 513, 318 (5th Cir. 2001)(internal
quotation marks omitted), and, additionally, that the Government
need only establish that the firearm was manufactured out of
state to satisfy the interstate commerce element of the offense.
See United States v. Guidry, 406 F.3d 314, 318-19 (5th Cir.),
cert. denied, 126 S. Ct. 190 (2005).
AFFIRMED.