                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                   UNITED STATES COURT OF APPEALS
                                                                     July 6, 2006
                                FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk
                             No. 05-41044
                           Summary Calendar


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                         DENNIS OSCAR GUERRA,

                                                     Defendant-Appellant.



           Appeal from the United States District Court
                 for the Southern District of Texas
                         (2:04-CR-423-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Dennis    Oscar   Guerra    appeals    his   sentence   following     his

jury-trial conviction for possession of a firearm by a convicted

felon, in violation of 18 U.S.C.§ 922(g)(1).            Based on Guerra’s

prior convictions, the district court sentenced him pursuant to the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

     Guerra contends the district court plainly erred by finding

his 1997   possession-of-heroin-with-intent-to-deliver           conviction



     *
       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this opinion should not be published and is not precedent except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.
qualified as an ACCA predicate offense.       He claims the Texas

statute under which he was convicted broadly defined “deliver” to

include an offer to sell drugs — conduct that did not qualify for

the § 924(e) enhancement.   Because the Government failed to prove

the specifics of his conduct, Guerra contends it also failed to

prove his offense was a qualifying ACCA predicate offense.

     Because Guerra did not object in district court to the use of

this 1997 conviction as an ACCA predicate offense, we review only

for plain error.   United States v. Olano, 507 U.S. 725, 732 (1993);

United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994).

Guerra points to no precedent in which this, or any other, court

has found that the Texas statute under which he was convicted

encompassed conduct not constituting an ACCA predicate offense.

Absent such precedent, Guerra cannot establish the district court’s

finding was error, much less plain (“clear” or “obvious”) error.

See United States v. Miller, 406 F.3d 323, 330 (5th Cir.) (“Absent

any precedent directly supporting [appellant’s] contention, it

cannot be said that the alleged error was ‘plain’ for purposes of

our review.”), cert. denied, 126 S. Ct. 207 (2005).

     Guerra next contends the court erred by classifying his 1985

burglary-of-a-habitation conviction as a violent felony under the

ACCA. This issue is foreclosed by United States v. Silva, 957 F.2d

157, 161-62 (5th Cir.) (holding a Texas conviction for burglary of




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a habitation is a violent felony for ACCA purposes), cert. denied,

506 U.S. 887 (1992).

     Guerra also challenges the constitutionality of § 924(e)(1)’s

treatment    of   violent   felonies       and   serious   drug    offenses   as

sentencing factors rather than as elements of an offense, and

asserts § 922(g)(1) is unconstitutional facially and as applied

because it does not require a “substantial” effect on interstate

commerce.     As Guerra concedes, his assertions are foreclosed by

circuit precedent; he raises them only to preserve them for further

review.     See United States v. Stone, 306 F.3d 241, 243 (5th Cir.

2002) (citing United States v. Affleck, 861 F.2d 97, 99 (5th Cir.

1988), cert. denied, 489 U.S. 1058 (1989)); United States v.

Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert. denied, 534

U.S. 1150 (2002).

                                                                  AFFIRMED




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