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

                                                                            FILED
                                                                         February 20, 2008
                                     No. 07-10296
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

KERMIT H POWDRILL, II

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 1:06-CR-43-ALL


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Kermit H. Powdrill, II, appeals his guilty plea conviction and sentence for
possession with the intent to distribute marijuana, possession of a firearm in
furtherance of a drug-trafficking crime, two counts of being a felon in possession
of a firearm, and receipt of a firearm while under felony indictment. Powdrill
argues that the district court abused its discretion in denying his motion for
leave to file an out-of-time pretrial motion challenging his indictment. Powdrill
sought to present arguments that are foreclosed under the law of this circuit.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10296

The district court did not abuse its discretion in denying Powdrill’s motion. See
United States v. Knezek, 964 F.2d 394, 397 (5th Cir. 1992).
      Powdrill also argues that 18 U.S.C. § 922(g)(1) is unconstitutional because
the statute does not require a substantial effect on interstate commerce and it
exceeds Congressional authority under the Commerce Clause.                Powdrill’s
challenge to the constitutionality of § 922(g)(1) is foreclosed by circuit precedent.
See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001). Powdrill
concedes as much but raises the issue to preserve it for further review.
      Accordingly, the judgment of the district court is AFFIRMED.




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