                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          March 3, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-40802
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GREGG CHARLES LAXEY,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:02-CR-131-1
                        --------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Gregg Charles Laxey appeals his conviction and sentence for

being a felon in possession of a firearm.   Laxey raises five

issues on appeal.

     First, Laxey argues that the evidence is insufficient.

Specifically, he urges that the Government did not prove his

status as a felon because he received a first-time offender

pardon.   Laxey’s pardon excluded the right to receive, possess,

and transport a firearm, thus making Laxey a prohibited person

     *
        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that this opinion should not be published and is not precedent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.
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                                 -2-

for the purposes of § 922(g)(1).     See United States v.

Richardson, 168 F.3d 836, 839-40 (5th Cir. 1999).     Laxey urges

that the Government did not prove that he knowingly possessed the

firearm, as only one witness saw Laxey momentarily touch the

firearm.    Our review of the record indicates that the evidence

was sufficient.    See United States v. Pankhurst, 118 F.3d 345,

352-53 (5th Cir. 1997).

     Laxey urges that the district court abused its discretion by

instructing the jury on momentary possession.     There was no abuse

of discretion, as the district court’s instructions fairly and

accurately reflected the law and covered the issues presented in

the case.    See United States v. Chaney, 964 F.2d 437, 444 (5th

Cir. 1992).

     Laxey next asserts that the district court erred in denying

his motion to dismiss the indictment on grounds that the

prosecution was a sham and constituted double jeopardy and

selective and vindictive prosecution.      First, Laxey has not shown

that the federal prosecution was a sham meant to vindicate the

interests of the state of Texas.     See United States v. Angleton,

314 F.3d 767, 773 (5th Cir. 2002).    Second, Laxey has not shown

selective prosecution, as he has not rebutted the presumption of

regularity supporting the Government’s decision to prosecute.

United States v. Jennings, 724 F.2d 436, 445 (5th Cir. 1984).       He

has neither made a prima facie showing that he was singled out

for prosecution while others similarly situated who committed the
                            No. 03-40802
                                 -3-

same crime were not prosecuted nor demonstrated that the

prosecution was constitutionally invidious in that it rested upon

such impermissible considerations as race, religion, or the

desire to prevent his exercise of constitutional rights.     See id.

Finally, Laxey’s bare allegation that the Government engaged in

vindictive prosecution because he exercised his right to deferred

adjudicated probation under Texas law is not sufficient to

support a vindictive prosecution claim.    See Neal v. Cain, 141

F.3d 207, 214 (5th Cir. 1998).   This is especially so in light of

the fact that the two prosecutions were brought by separate

sovereigns.    See United States v. Johnson, 91 F.3d 695, 697 (5th

Cir. 1996).

     Laxey argues that the district court erred in finding that

his prior offenses qualified him to be sentenced as a career

offender pursuant to U.S.S.G. § 4B1.4 or 18 U.S.C. § 924(e).    The

PSR indicated that Laxey’s three prior distribution offenses were

“committed on occasions different from one another” and thus were

separate offenses that qualified him to be sentenced as a career

offender.   See United States v. Ressler, 54 F.3d 257, 259-60 (5th

Cir. 1995).

     Finally, Laxey argues that he should not have been sentenced

under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because

he was not indicted under that act and the jury was not required

to find beyond a reasonable doubt the qualifying prior

convictions.   Laxey concedes that his argument is foreclosed by
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                               -4-

circuit precedent, see United States v. Stone, 306 F.3d 241, 243

(5th Cir. 2002), and he is raising the issue solely to preserve

it for possible further review.

     AFFIRMED.
