United States Court of Appeals, Fifth CircuitFeb 15, 2011
411 Fed. Appx. 745 (5th Cir. 2011)

No. 09-10984 Conference Calendar.

February 15, 2011.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.

Jason Douglas Hawkins, Federal Public Defender, Sam L. Ogan, Assistant Federal Public Defender, Federal Public Defender's Office, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:09-CR-18-1.

Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.

Appealing the judgment in a criminal case, Russell Cates presents arguments that he concedes are foreclosed by United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), which rejected a Commerce Clause challenge to 18 U.S.C. § 922(g)(1), and United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), which held that a conviction under § 922(g) does not require proof that the defendant knew that the firearm had an interstate nexus or that he was a felon. Cates also raises arguments that he concedes are foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which held that a district court may order a term of imprisonment to run consecutively to an unimposed state sentence.

Accordingly, the Government's motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.