United States v. Salinas

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40958
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MARTINEZ SALINAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CR-92-1
--------------------
April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jesus Martinez Salinas appeals from his guilty-plea
conviction for possession of a firearm subsequent to a felony
conviction. He contends 18 U.S.C. § 922(g)(1), the felon-in-
possession statute, is unconstitutional on its face because it
does not require a substantial effect on interstate commerce;
that his indictment was insufficient because it did not allege a
substantial effect on interstate commerce; that there was an
insufficient factual basis for his guilty plea because the
movement of a firearm from one state to another at some

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No. 01-40958
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undetermined time in the past does not constitute a substantial
effect on interstate commerce; and that this court should
reconsider its jurisprudence regarding the constitutionality of
18 U.S.C. § 922(g)(1) in light of Jones v. United States, 529
U.S. 848 (2000), and United States v. Morrison, 529 U.S. 598
(2000). Martinez concedes that his arguments are foreclosed by
this court’s precedent but seeks to preserve the arguments for
Supreme Court review. Martinez contends that the special
conditions of supervised release requiring drug testing and
prohibiting alcohol were plainly erroneous because they imposed a
greater infringement of his liberty than was necessary and
because they were unsupported by the record.
The “in or affecting commerce” element of 18 U.S.C.
§ 922(g)(1) requires only a minimal nexus between the firearm and
interstate commerce. United States v. Gresham, 118 F.3d 258, 265
(5th Cir. 1997). This element is satisfied because the firearm
possessed by Martinez previously traveled in interstate commerce.
United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996).
Martinez’s reliance on Morrison and Jones is misplaced. In
United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001),
cert. denied, 122 S. Ct. 1113 (2002), this court recently
determined that Morrison and Jones were distinguishable from an
18 U.S.C. § 922(g)(1) case in which the defendant, like Martinez,
had stipulated to facts showing that his firearm had traveled in
interstate commerce, emphasizing that “the constitutionality of
§ 922(g) is not open to question.” Id. (quotation and citation
omitted).

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No. 01-40958
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Martinez did not object when the district court stated that
it intended to impose the challenged conditions of supervised
release. His contention therefore is reviewed under the plain-
error standard. United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994)(en banc). Consideration of the factors relevant
to special conditions of supervised release requires that certain
factual findings about the defendant and the offense be made
before the determination whether the conditions imposed are
reasonably related to those factors. See 18 U.S.C. § 3583(d);
U.S.S.G. § 5D1.3(b). “Questions of fact capable of resolution by
the district court upon proper objection at sentencing can never
constitute plain error.” United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991). The district court could have made findings
regarding Martinez and his history and could have determined how
those findings were related to the challenged conditions had
Martinez objected at sentencing. He therefore cannot demonstrate
plain error.
AFFIRMED.

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