United States v. Cherry

* 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that this opinion should not be published and is not precedent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. 02-20104
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY BERNARD CHERRY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-594-1
--------------------
October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Tony Bernard Cherry appeals his conviction of being a felon
in possession of a firearm. He argues, relying on United States
v. Lopez, 514 U.S. 549 (1995), that 18 U.S.C. § 922(g)(1) is
unconstitutional on its face because it does not require that
there be a “substantial” effect on interstate commerce. He also
contends that, if a substantial effect on interstate commerce is

-- 1 of 2 --

No. 02-20104
-2-
required for a 18 U.S.C. § 922(g)(1) conviction, his indictment
and the evidence supporting his conviction were insufficient.
He acknowledges that his arguments are foreclosed by this
court’s decisions in United States v. Rawls, 85 F.3d 240 (5th
Cir. 1996); United States v. Daugherty, 264 F.3d 513 (5th Cir.
2001), cert. denied, 122 S. Ct. 1113 (2002); see also United
States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002), cert.
denied, (U.S. Oct. 7, 2002, No. 02-5348), 2002 WL 1764873, but
seeks to preserve the argument for further review.
As noted by Cherry, his arguments are foreclosed by the
cases cited above. His conviction is AFFIRMED.

-- 2 of 2 --