     Case: 16-11781      Document: 00514097799         Page: 1    Date Filed: 08/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                    No. 16-11781                                  FILED
                                  Summary Calendar                           August 1, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOAQUIN DEWAYNE PRICE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-182-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Joaquin Dewayne Price pleaded guilty to being a felon in possession of a
firearm (count one), possession with intent to distribute a controlled substance
(count two), and possession of a firearm in furtherance of a drug trafficking
crime (count three). He argues that his convictions on counts two and three
violate the Double Jeopardy Clause and that 18 U.S.C. § 922(g) is
unconstitutional.      The Government has filed an unopposed motion for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11781      Document: 00514097799    Page: 2   Date Filed: 08/01/2017


                                  No. 16-11781

summary affirmance arguing that Price’s arguments are foreclosed by circuit
precedent, or, alternatively, requesting an extension of time to file its response
brief.
         Price correctly concedes that his argument that separate prosecutions
for counts two and three violated the Double Jeopardy Clause because count
two is a lesser included offense of count three is foreclosed. See United States
v. Nguyen, 117 F.3d 796, 797 & n.1 (5th Cir. 1997); United States v. Martinez,
28 F.3d 444, 446 (5th Cir. 1994). He also correctly concedes that his arguments
that 18 U.S.C. § 922(g)(1) is unconstitutional because it exceeds the scope of
Congress’s power under the Commerce Clause and because it does not require
proof of knowledge that the firearm traveled in interstate commerce are also
foreclosed. See United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013);
United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v.
De Leon, 170 F.3d 494, 499 (5th Cir. 1999); United States v. Rose, 587 F.3d 695,
705-06 (5th Cir. 2009). He raises the arguments to preserve them for further
review.
         The parties are correct that Martinez, Alcantar, and Rose foreclose
Price’s arguments.      Accordingly, the Government’s motion for summary
affirmance is GRANTED, the alternative motion for an extension of time to file
a brief is DENIED, and the judgment of the district court is AFFIRMED.




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