     Case: 15-41190      Document: 00513591979         Page: 1    Date Filed: 07/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41190
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 14, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARIO ALBERTO GARCIA-BALDERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1408-1



Before HIGGINBOTHAM, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Mario Alberto Garcia-Balderas appeals his convictions and sentences of
being an alien illegally in the United States in possession of a firearm and of
being a felon in possession of a firearm for which he was sentenced to 120
months of imprisonment on each count, to run concurrently with each other.
See 18 U.S.C. § 922(g)(1), (g)(5)(A); 18 U.S.C. § 924(a)(2).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-41190    Document: 00513591979     Page: 2   Date Filed: 07/14/2016


                                 No. 15-41190

      Garcia-Balderas challenges the constitutionality of § 922(g)(1) and (g)5),
arguing that the statute does not require a substantial effect on interstate
commerce or, in the alternative, that the Government adduced insufficient
evidence to show that the “mere movement” of the components of a firearm
constituted a substantial effect on interstate or foreign commerce.       As he
acknowledges, his argument is foreclosed by our prior decisions holding that
§ 922(g) generally, and § 922(g)(1) in particular, is a valid exercise of
Congress’s authority under the Commerce Clause.           See United States v.
Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001); United States v. Wallace, 889 F.2d 580, 583 (5th
Cir. 1989); see also United States v. Baltazar-Lopez, 273 F.3d 1099 (5th Cir.
2001) (treating § 922(g)(5) as indistinguishable from § 922(g)(1)).
      Garcia-Balderas also argues that his convictions and sentences on
charges both of being an illegal alien in possession of a firearm and of being a
felon in possession of a firearm are multiplicitous and violate the Double
Jeopardy Clause. See § 922(g)(1), (g)(5). As the Government concedes, the
simultaneous charges under § 922(g)(1) and (g)(5), which arise from the same
single incident of possession of firearms, violate the constitutional prohibition
on multiple punishments for one offence. See United States v. Munoz-Romo,
989 F.2d 757, 759-60 (5th Cir. 1993).
      We, therefore, VACATE the sentences and REMAND to the district court
to vacate either of the convictions and resentence Garcia-Balderas on the
remaining count.




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