Case: 09-50024 Document: 00511000544 Page: 1 Date Filed: 01/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 11, 2010
No. 09-50024
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEXTER DARNELL HEWITT, also known as Dexter Curnell Hewitt,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-149-ALL
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges
PER CURIAM:*
Dexter Darnell Hewitt appeals from his jury verdict conviction for
possession with intent to distribute at least 5 grams of crack cocaine within
1,000 feet of a playground pursuant to 21 U.S.C. §§ 841 and 860(a). He was
sentenced to 236 months of imprisonment, eight years of supervised release, and
a $2,000 fine.
Hewitt argues that § 860, as applied to him in this case, was not a valid
constitutional exercise of federal authority by the United States Congress
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50024 Document: 00511000544 Page: 2 Date Filed: 01/11/2010
No. 09-50024
because it does not require a nexus with interstate commerce or regulate a
commercial activity. His argument is foreclosed by this court’s holding in United
States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997).
Next, Hewitt asserts that the evidence produced at trial was insufficient
to support the jury’s verdict. Because Hewitt failed to preserve this challenge
for appeal, our“review is limited to determining whether there was a manifest
miscarriage of justice, that is, whether the record is devoid of evidence pointing
to guilt.” United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (citations
and internal quotations marks omitted). However, our review of the evidence
shows that it was sufficient to support the jury’s verdict even if Hewitt’s
challenge had been preserved. See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
The judgment of the district court is AFFIRMED.
2