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

                                                 FILED
                                                                           August 18, 2009
                                     No. 08-11208
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

BOBBY RAY DIAZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:08-CR-1-1


Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appealing the judgment in a criminal case, Bobby Ray Diaz presents
arguments that he concedes are foreclosed by United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001), which rejected a Commerce Clause challenge to
the felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g). In addition, Diaz
raises arguments that he concedes are foreclosed by United States v. Avants, 278
F.3d 510, 522 (5th Cir. 2002), which held that, although the appellant was in
state custody and was represented by counsel, the Sixth Amendment right to
counsel did not attach with respect to a federal charge for which the appellant


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11208

had not yet been indicted. The Government’s motion for summary affirmance
is GRANTED, and the judgment of the district court is AFFIRMED.




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