United States v. Strait

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51033
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY OTIS STRAIT, also known as Anthony Straight,
also known as Anthony Strait, also known as Anthony
Thomas, also known as “Baby T,”
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CR-429-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Anthony Otis Strait appeals his guilty-plea convictions of
possession of five grams or more of cocaine base with intent to
distribute and possession of a firearm by a convicted felon, in
violation of 21 U.S.C. § 841(a) and (b) and 18 U.S.C. § 922(g).
The district court imposed concurrent 100-month prison terms and
supervised-release terms of five and three years, respectively.

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No. 02-51033
-2-
For the first time on appeal, Strait contends that 21 U.S.C.
§ 841(b) is facially unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). He acknowledges that his argument
is foreclosed by this court’s decision in United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but raises the
issue only to preserve it for review in the Supreme Court. He is
correct that Slaughter precludes his argument. See United States
v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (panel of this court
is bound by prior precedent).
Also for the first time on appeal, Strait contends that the
felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g),
is unconstitutional under the Commerce Clause because it
criminalizes the possession of firearms that do not substantially
affect interstate commerce. Strait concedes that this argument,
too, is foreclosed by circuit precedent. See United States
v. Daugherty, 264 F.3d 513, 518 & n.12 (5th Cir. 2001),
cert. denied, 534 U.S. 1150 (2002). He raises the issue to
preserve it for Supreme Court review.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
The judgment of the district court is AFFIRMED.
AFFIRMED; MOTION GRANTED.

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