                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 15, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40219
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

SANTOS CANO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:04-CR-381-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     A jury convicted Santos Cano for possession of ammunition by

a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2), 924(e)(1).    The district court determined that Cano

was an armed career criminal and sentenced him to the statutory

minimum, 180 months of imprisonment, pursuant to § 924(e).

     Cano argues that the district court abused its discretion in

refusing to give his requested jury instruction on the

justification defense.    Cano failed to establish that there was a


     *
       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this opinion should not be published and is not precedent except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. 05-40219
                                -2-

present, imminent, and impending threat or that he had no

opportunity to pursue legal alternatives during the entire time

that he was in possession of the ammunition.    Accordingly, he has

not shown that he was entitled to assert the defense of

justification.   See United States v. Posada-Rios, 158 F.3d 832,

873 (5th Cir. 1998).   Because he has not shown that he was

entitled to assert the justification defense, he likewise has not

shown that the district court abused its discretion in denying

his requested jury instruction.

     Cano also argues that the district court erred in

determining that his Texas convictions for burglary of a

habitation were qualifying violent felony convictions under

§ 924(e).   Cano contends that this court’s holding to the

contrary in United States v. Silva, 957 F.2d 157, 162 (5th Cir.

1992), was undercut by Shepard v. United States, 125 S. Ct. 1254

(2005).   Shepard did not undercut Silva; Shepard extended the

holding of Taylor v. United States, 495 U.S. 575 (1990), to cases

in the guilty-plea context and clarified which documents could be

considered when determining whether a prior conviction was for a

generic burglary and could be used to enhance a sentence under

the Armed Career Criminal Act.    See Shepard 125 S. Ct. at 1259,

1263.   Alternatively, Cano concedes that his argument is

foreclosed by Silva, but he nevertheless raises it here to

preserve it for further review.
                            No. 05-40219
                                 -3-

     Cano additionally argues that § 924(e) is facially

unconstitutional or, in the alternative, that his sentence was

improperly enhanced under § 924(e) because the indictment did not

contain any information regarding his prior convictions.   He

concedes that these arguments are foreclosed by circuit

precedent.    See United States v. Stone, 306 F.3d 241, 243 (5th

Cir. 2002); United States v. Affleck, 861 F.2d 97, 99 (5th Cir.

1988).    He further concedes that these arguments are foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998).     Cano

is raising the arguments to preserve them for possible further

review.

     Cano finally argues that the statute of conviction,

§ 922(g)(1), is unconstitutional because it does not require a

substantial effect on interstate commerce and is, thus, an

improper exercise of Congress’ power under the Commerce Clause.

Cano contends that the Supreme Court’s decisions in Jones v.

United States, 529 U.S. 848 (2000), United States v. Morrison,

529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549

(1995), require that the ammunition possession has a

“substantial” effect on interstate commerce.

     “This court has repeatedly emphasized that the

constitutionality of § 922(g)(1) is not open to question.”

United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).

This court also has determined that “[n]either Jones nor Morrison
                          No. 05-40219
                               -4-

affects or undermines the constitutionality of § 922(g).”     United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

     Alternatively, Cano argues that the facts established at

trail, that the ammunition which he possessed had, at some

unspecified time, moved in interstate commerce, were insufficient

to prove a substantial effect on interstate commerce.   This court

repeatedly has affirmed § 922(g)(1) convictions on evidence

similar to that presented in the instant case.   See id. at 518

& n.12 (concluding that § 922(g)(1)’s interstate commerce element

is satisfied by the defendant’s possession of a firearm that was

manufactured in a different state or country).   Cano concedes

that his arguments are foreclosed by circuit precedent, but he

wishes to preserve them for further review.

     Accordingly, the judgment of the district court is AFFIRMED.
