     Case: 18-11352      Document: 00514957275         Page: 1    Date Filed: 05/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 18-11352
                                                                                FILED
                                                                            May 15, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLINTON DEVONE HICKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-570-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Clinton Devone Hicks pleaded guilty to two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced
under the Armed Career Criminal Act (ACCA) to the statutory minimum
sentence of 180 months of imprisonment for each offense, to be served
concurrently. See 18 U.S.C. § 924(e). On appeal, Hicks argues that his prior
Texas convictions for possession with intent to deliver a controlled substance


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-11352   Document: 00514957275     Page: 2   Date Filed: 05/15/2019


                                 No. 18-11352

are not serious drug offenses for purposes of the ACCA enhancement and that
the indictment did not allege the convictions that formed the basis of the
enhancement.
       The Government has filed an unopposed motion for summary
affirmance. In the alternative, the Government seeks an extension of time to
file its brief.
       As the Government argues and Hicks concedes, his argument that his
prior convictions are not serious drug offenses under the ACCA is foreclosed by
United States v. Cain, 877 F.3d 562, 562-63 (5th Cir. 2017), cert. denied, 138
S. Ct. 1579 (2018), and United States v. Vickers, 540 F.3d 356, 363-66 (5th Cir.
2008). His argument challenging the indictment is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998).
       In addition, Hicks argues that § 922(g) does not allow for prosecutions
for the possession of firearms that traveled in interstate commerce in the
distant past, and that if the statute does allow such convictions, it is
unconstitutional. He further argues that the statute requires the Government
to prove that he knew that: he possessed a firearm, he was a felon, and the
firearm was in or affecting interstate commerce.
       The Government argues and Hicks concedes that his interstate
commerce argument is foreclosed by United States v. Alcantar, 733 F.3d 143,
145-56 (5th Cir. 2013). His argument challenging the constitutionality of
§ 922(g) is foreclosed by United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001). Finally, his mens rea argument is foreclosed by United States v. Dancy,
861 F.3d 77, 81-82 (5th Cir. 1988).
       The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. Its alternative motion for an
extension of time is DENIED as unnecessary.



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