                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-21340
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

BENDELL MITCHELL LASTRAPES,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-02-CR-163-ALL
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Bendell Mitchell Lastrapes appeals his guilty plea

conviction pursuant to 18 U.S.C. § 922(g) for which he received a

sentence of a term of imprisonment of 51 months to be followed by

a three-year term of supervised release.

     Relying on United States v. Emerson, 270 F.3d 203, 260-65

(5th Cir. 2001), Lastrapes argues that 18 U.S.C. § 922(g)(1) is

unconstitutional in that it violates the Second Amendment right

to keep and bear arms.   He further argues that the provision is


     *
        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that this opinion should not be published and is not precedent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. 02-21340
                                 -2-

overbroad, it violates the Tenth Amendment by impinging on an

area of law reserved to the States, and violates the Equal

Protection Clause.

     This court has rejected the proposition that Emerson

suggests that 18 U.S.C. § 922(g)(1) violates the Second

Amendment.    United States v. Darrington, 351 F.3d 632, 634

(5th Cir. 2003).    In Darrington, the court held that 18 U.S.C.

§ 922(g)(1) does not violate the Second Amendment, the Tenth

Amendment, the Commerce Clause, or principles of equal

protection.   Id. at 633-35.   Thus, 18 U.S.C. § 922(g)(1) is not

unconstitutional.

     Lastrapes further argues that 18 U.S.C. § 922(g) is

unconstitutional under the Commerce Clause because it does

not require a “substantial” effect on interstate commerce.

He alternatively argues that his indictment was defective for

failing to charge that the offense had a substantial effect on

interstate commerce and that the factual basis for his guilty

plea was insufficient because the evidence established only that

the firearm was manufactured out of state and had traveled across

state lines at some unspecified time in the past.

     Lastrapes raised these arguments solely to preserve them for

possible Supreme Court review.   As he acknowledges, his arguments

are foreclosed by existing Fifth Circuit precedent.    See United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

     AFFIRMED.
