                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 13, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-40338
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

TERRY JOE CARTER,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CR-450
                      --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Terry Joe Carter pleaded guilty to being a felon in

possession of two firearms.   Carter had one prior Texas

conviction of unlawful delivery of a controlled substance, two

prior convictions of burglary of a building, and one prior

conviction of robbery.   The district court considered those

convictions in sentencing Carter under the Armed Career Criminal

Act (ACCA).    See 18 U.S.C. § 924(e)(1).   Carter contends that the

district court erred by regarding his prior burglary convictions

as “violent felonies” for purposes of the ACCA.    As Carter

     *
       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this opinion should not be published and is not precedent except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. 06-40338
                                -2-

concedes, this issue is foreclosed.     See United States v. Fuller,

453 F.3d 274, 278 (5th Cir. 2006).    Because Carter’s two burglary

convictions, together with the robbery conviction, are sufficient

for sentencing under the ACCA, see § 924(e)(1), any error in

regarding Carter’s prior conviction of delivery of a controlled

substance as a “serious drug offense” for purposes of

§ 924(e)(2)(B) was harmless.   See United States v. Munoz, 150

F.3d 401, 419 & n.17 (5th Cir. 1998).

     Carter contends that it was unconstitutional to enhance his

sentence under the ACCA because the indictment did not allege the

predicate convictions, a jury did not find the existence of the

predicate convictions beyond a reasonable doubt, and he did not

admit to them in pleading guilty to violating 18 U.S.C.

§ 922(g)(1).   As Carter properly concedes, this issue is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).   See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).

     Carter contends that § 922(g)(1) is unconstitutional on its

face because it does not require that the offense had a

“substantial” effect on interstate commerce, or, alternatively,

that there was an insufficient factual basis for conviction under

the statute because the mere movement of a firearm from one state

to another, at an undetermined time in the past, did not

constitute a substantial effect on interstate commerce.

As Carter concedes, “the constitutionality of § 922(g) is not
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                                -3-

open to question.”   See United States v. Daugherty, 264 F.3d 513,

518 (5th Cir. 2001) (quotation marks omitted).   Further, the

factual basis was sufficient as Carter admitted that he

unlawfully possessed two shotguns that had been manufactured

outside Texas and that had traveled in commerce to the Southern

District of Texas.   See United States v. Guidry, 406 F.3d 314,

318 (5th Cir.), cert. denied, 126 S. Ct. 190 (2005).   No error

has been shown, plain or otherwise.   The judgment is AFFIRMED.
