                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 2, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-20799
                           Summary Calendar



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                versus

DAVID EUGENE HARVEY,

                                                Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. H-02-CR-543-1
                         --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     David Harvey appeals his conviction of possession of a

firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2).     Harvey argues (1) that § 922(g), as applied in this

case, violates the Commerce Clause, and (2) that the trial court

violated FED. R. EVID. 404(b) by admitting evidence that showed

trace amounts of cocaine were found during a search of Harvey’s

apartment.



     *
        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that this opinion should not be published and is not precedent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. 03-20799
                                  -2-

     Harvey concedes that his Commerce Clause argument is

foreclosed by this court’s precedent but raises the issue to

preserve it for Supreme Court review.1

     Following a hearing, the district court granted the

Government’s Rule 404(b) motion to admit the drug evidence on the

grounds that it established a motive for Harvey to possess the

firearms and that it suggested that he had knowledge of the

firearms’ presence in the apartment.     Although Harvey argued in

his opposition to the pre-trial motion that the drug evidence was

irrelevant and likely to confuse and prejudice the jury, he did

not object when the drug evidence was offered at trial.

Accordingly, we review his challenge to the admission of the drug

evidence for plain error.2

     We will reverse a conviction for plain error only if there

is a clear or obvious error that affects substantial rights.3

Even then, we retain the discretion to correct such errors, and

we will do so only if the errors seriously affect the fairness,

integrity, or public reputation of judicial proceedings.4

     Even if Harvey could demonstrate clear or obvious error, we

must affirm Harvey’s conviction because the admission of the drug


     1
       See United States v. Darrington, 351 F.3d 632, 633 (5th
Cir. 2003).
     2
         United States v. Duffaut, 314 F.3d 203, 208-09 (5th Cir.
2002).
     3
         Id.
     4
         Id.
                            No. 03-20799
                                 -3-

evidence did not violate his substantial rights.5      The indictment

charged that Harvey violated §§ 922(g)(1) and 924(a)(2) by

possessing “one or more firearms, namely, a Smith & Wesson .357

caliber handgun and a Mossberg .410 shotgun.”    Harvey does not

dispute that he is a convicted felon and that the charged

firearms had traveled in interstate commerce.    Accordingly, proof

that Harvey possessed either firearm is sufficient to support his

conviction.6    The undisputed evidence shows that the loaded Smith

& Wesson .357 revolver was on the closet shelf in Harvey’s

bedroom and that Harvey told the officers that he had placed the

weapon there.    This evidence is more than adequate to support

Harvey’s conviction.7    Accordingly, his substantial rights were

not affected by the admission of the evidence of cocaine residue.

     AFFIRMED.




     5
         U.S. v. Olano, 507 U.S. 725, 734-35 (1993).
     6
       Turner v. United States, 396 U.S. 398, 420-21 (1970);
United States v. Merida, 765 F.2d 1205, 1222 (5th Cir. 1985).
     7
         See United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.
1995).
