     Case: 16-10407      Document: 00513942072         Page: 1    Date Filed: 04/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10407                                   FILED
                                  Summary Calendar                              April 6, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                   Clerk


                                                 Plaintiff-Appellee

v.

RODERICK JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-192-1


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Roderick Johnson appeals his jury conviction of unlawful possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and the resulting
sentence of 120 months of imprisonment and three years of supervised release.
He argues that § 922(g)(1) violates the Commerce Clause, the evidence was
insufficient to establish that the weapon traveled in interstate commerce, and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-10407

the district court erred by denying a reduction for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1 (2015).
      We have consistently held that § 922(g)(1), which prohibits possession of
a firearm by a convicted felon, does not violate the Commerce Clause. See
United States v. Alcantar, 733 F.3d 143, 145-46 & n.4 (5th Cir. 2013); United
States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989). Thus, Johnson’s argument
that § 922(g)(1) is unconstitutional is foreclosed. See Alcantar, 733 F.3d at 145-
47 & n.4; Wallace, 889 F.2d at 583.
      Because Johnson did not preserve his challenge to the sufficiency of the
evidence, we review his challenge for plain error. See United States v. Davis,
690 F.3d 330, 336 and n.6 (5th Cir. 2012).         The Government presented
testimony from Bureau of Alcohol, Tobacco, Firearms and Explosives Agent
Daniel Kaase, who testified that the firearm had been manufactured in
Germany. Further, the importer and distributor of the firearm was in Los
Angeles, California. Thus, the firearm’s presence in Texas, where Johnson
possessed it, meant that it had traveled in or affected interstate commerce.
This evidence sufficiently established the interstate nexus of § 922(g)(1). See
United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005); United States v.
Broadnax, 601 F.3d 336, 343-44 (5th Cir. 2010).
      We review Johnson’s challenge to the denial of the § 3E1.1 reduction with
a standard of review that is even more deferential than a pure clearly
erroneous standard, and will affirm unless the denial is without foundation.
United States v. Rudzavice, 586 F.3d 310, 315 (5th Cir. 2009); § 3E1.1,
comment. (n.5). This is not one of the “rare” cases where a defendant who has
gone to trial should have nonetheless been awarded the § 3E1.1 reduction.
§ 3E1.1, comment. (n.2). While Johnson relies upon United States v. Fells, 78
F.3d 168 (5th Cir. 1996), to support his argument, his case is distinguishable.



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                                No. 16-10407

In Fells, the defendant, prior to trial, admitted all operative facts and
cooperated with government officials. Id. at 171-72. In contrast, Johnson’s
conduct in refusing to provide fingerprints and his delay until mid-trial to
stipulate to possession of the weapon are not indicative of acceptance of
responsibility.   See § 3E1.1, comment. (n.2).     Finally, a challenge to the
sufficiency of the evidence, such as the argument presented by Johnson, may
be considered as a failure to accept responsibility.       See United States v.
Cordero, 465 F.3d 626, 631-32 (5th Cir. 2006).
      AFFIRMED.




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