     Case: 13-40268       Document: 00512433657         Page: 1     Date Filed: 11/07/2013




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

                                                                            FILED
                                                                         November 7, 2013
                                     No. 13-40268
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

JOSE ANTELMO MENDEZ,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-854-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Antelmo Mendez pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to the mandatory
minimum sentence of 180 months of imprisonment. Represented by the Federal
Public Defender, Mendez raises two arguments, in order to preserve the issues
for further review, that he correctly concedes are foreclosed by circuit precedent.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40268    Document: 00512433657     Page: 2   Date Filed: 11/07/2013

                                 No. 13-40268

      Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the Government was
not required to charge in the indictment the predicate facts for the ACCA
enhancement and either have Mendez admit those facts or have those facts
proven to a jury. See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006);
United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002). “‘[N]either the [ACCA]
nor the Constitution requires a jury finding on the existence of the three
previous felony convictions required for the enhancement.’” White, 465 F.3d at
254 (quoting Stone, 306 F.3d at 243). Likewise, Mendez’s Commerce Clause
challenge to the constitutionality of § 922(g)(1) is foreclosed, and “‘the
constitutionality of § 922(g) is not open to question.’”       United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) (quoting United States v. De Leon,
170 F.3d 494, 499 (5th Cir. 1999)).
      The appellant’s motion for summary disposition is GRANTED, and the
judgment of the district court is AFFIRMED.




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