     Case: 09-50024     Document: 00511000544          Page: 1    Date Filed: 01/11/2010



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

                                                                             FILED
                                                                          January 11, 2010
                                     No. 09-50024
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DEXTER DARNELL HEWITT, also known as Dexter Curnell Hewitt,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 6:07-CR-149-ALL


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges
PER CURIAM:*
        Dexter Darnell Hewitt appeals from his jury verdict conviction for
possession with intent to distribute at least 5 grams of crack cocaine within
1,000 feet of a playground pursuant to 21 U.S.C. §§ 841 and 860(a). He was
sentenced to 236 months of imprisonment, eight years of supervised release, and
a $2,000 fine.
        Hewitt argues that § 860, as applied to him in this case, was not a valid
constitutional exercise of federal authority by the United States Congress


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50024   Document: 00511000544 Page: 2        Date Filed: 01/11/2010
                                No. 09-50024

because it does not require a nexus with interstate commerce or regulate a
commercial activity. His argument is foreclosed by this court’s holding in United
States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997).
      Next, Hewitt asserts that the evidence produced at trial was insufficient
to support the jury’s verdict. Because Hewitt failed to preserve this challenge
for appeal, our“review is limited to determining whether there was a manifest
miscarriage of justice, that is, whether the record is devoid of evidence pointing
to guilt.” United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (citations
and internal quotations marks omitted). However, our review of the evidence
shows that it was sufficient to support the jury’s verdict even if Hewitt’s
challenge had been preserved. See Jackson v. Virginia, 443 U.S. 307, 318 (1979).
      The judgment of the district court is AFFIRMED.




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