                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 25, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-20607
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOEL HERNANDEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CR-86-1
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Joel Hernandez appeals his conviction for being an alien in

possession of a firearm.    He argues that the statute of

conviction, 18 U.S.C. § 922(g)(5), is facially unconstitutional

and, in the alternative, that the statute is unconstitutional as

applied because the factual basis of his plea failed to establish

the interstate commerce element.

     Hernandez concedes that his constitutional challenge is

foreclosed by circuit precedent, and he raises it only to


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-20607
                                -2-

preserve its further review by the Supreme Court.   We have indeed

held that “the constitutionality of § 922(g) is not open to

question,” United States v. Daugherty, 264 F.3d 513, 318 (5th

Cir. 2001) (internal quotation marks omitted), and, additionally,

that the Government need only establish that the firearm was

manufactured out of state to satisfy the interstate commerce

element of the offense.   See United States v. Guidry, 406 F.3d

314, 318-19 (5th Cir.), cert. denied, 126 S. Ct. 190 (2005).

     AFFIRMED.
