                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 25, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20524
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EMILIANO LUGO-VARGAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-534-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Emiliano Lugo-Vargas (Lugo) appeals following his guilty

plea to being an alien in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(5).   He argues that § 922(g)(5) is facially

unconstitutional and, in the alternative, that the statute is

unconstitutional as applied because the factual basis of his plea

failed to establish the interstate commerce element.      Lugo

concedes that his constitutional challenge is foreclosed by

circuit precedent, and he raises it only to preserve it for

review by the Supreme Court.   We have held that “the

     *
       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this opinion should not be published and is not precedent except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. 05-20524
                               -2-

constitutionality of § 922(g) is not open to question,” United

States v. Daugherty, 264 F.3d 513, 318 (5th Cir. 2001)(internal

quotation marks omitted), and, additionally, that the Government

need only establish that the firearm was manufactured out of

state to satisfy the interstate commerce element of the offense.

See United States v. Guidry, 406 F.3d 314, 318-19 (5th Cir.),

cert. denied, 126 S. Ct. 190 (2005).

     AFFIRMED.
