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

                                                                   FILED
                                                                 December 2, 2008
                                 No. 08-20080
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

HAYBERT RONALD LEE

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CR-178-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Having pleaded guilty, Haybert Ronald Lee appeals his conviction and
sentence for being a felon in possession of a firearm. Lee argues that the district
court erred by enhancing his sentence under U.S.S.G.§ 2K2.1(b)(6) on the basis
that he used or possessed the firearm in connection with the unauthorized use
of a motor vehicle. Lee asserts that the Government failed to prove that he
committed unauthorized use of a motor vehicle because the evidence did not
show that his use of the stolen vehicle was intentional or knowing, as required

      *
      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should not be published and is not precedent except under the limited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. 08-20080

by Texas Penal Code § 31.07. The district court’s finding that Lee knew the
vehicle was stolen was plausible in light of the record and not clearly erroneous.
See United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). Lee had the
criminal background to recognize the signs of a stolen vehicle, and he had been
driving a Jaguar for two weeks with a missing front license plate and an
obliterated vehicle identification number. In addition, Lee changed his story
about who had given him the car, the rear license plate was stolen from another
vehicle, and he was driving with a loaded 9-millimeter pistol with an obliterated
serial number between his seat and the center console.
      Lee further asserts that his possession of the firearm did not facilitate or
have the potential of facilitating his use of the vehicle. However, the presence
of the loaded firearm next to Lee in the car had the potential of facilitating his
unauthorized use of the vehicle. Therefore, the district court did not clearly err
by applying the enhancement under § 2K2.1(b)(6). See § 2K2.1, comment. (n.14);
United States v. Armstead, 114 F.3d 504, 510-13 (5th Cir. 1997).
      Lee also challenges the constitutionality of 18 U.S.C. § 922(g)(1) on its face
and as applied in this case, arguing that there is an insufficient nexus between
the mere movement of a firearm across state lines and interstate commerce to
support federal criminal sanctions for possession of a firearm. As he concedes,
however, this issue is foreclosed by our precedent.         See United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
      AFFIRMED.




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