                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                              August 21, 2007
                   FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 06-51280
                             Conference Calendar


UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

BRENT BATTIN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:05-CR-609-ALL


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*
      Brent Battin appeals following his conviction for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that his
prior Texas state conviction for felony evading arrest was not a qualifying
predicate offense punishable by imprisonment for a term exceeding one year.
Although he acknowledges that the offense was a state jail felony, he argues that
his plea agreement provided that he would be sentenced in accordance with TEX.


      *
       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should not be published and is not precedent except under the limited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. 06-51280

PENAL CODE ANN. § 12.44(a), which allows punishment as if the crime were a
Class A misdemeanor subject to a maximum one-year sentence. We have
previously rejected a nearly identical argument. United States v. Rivera-Perez,
322 F.3d 350, 351-52 (5th Cir. 2003).        Battin correctly concedes that his
argument is foreclosed, and he states that he raises the issue to preserve it for
possible further review.
      Battin also argues that § 922(g)(1) is unconstitutional because the statute
does not require a “substantial” effect on interstate commerce and it exceeds
Congress’ authority under the Commerce Clause. Battin’s challenge to the
constitutionality of § 922(g)(1) is also foreclosed by circuit precedent. See United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v. Rawls,
85 F.3d 240, 242 (5th Cir. 1996). Battin concedes as much and indicates that he
raises this issue also to preserve it for further review.
      AFFIRMED.




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