               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-51233
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

MICHAEL D. KERR,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-01-CR-58-ALL-SS
                       --------------------
                          August 14, 2002

Before JOLLY, DAVIS and PARKER, Circuit Judges.

PER CURIAM:*

     Michael D. Kerr appeals his conviction for being a felon in

possession of a firearm.    He argues that the district court erred

in denying his motion to suppress the evidence given a conflict

in the officers’ testimony regarding the smell of marijuana after

his vehicle was stopped for speeding.

     We review whether the trial court’s factual findings, based

on live testimony at a suppression hearing, are clearly erroneous


     *
        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that this opinion should not be published and is not precedent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. 01-51233
                                -2-

or influenced by an incorrect view of the law.     See United States

v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).     This court views

the evidence in the light most favorable to the prevailing party.

See United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).

     When a trial judge’s finding is based on his decision to

credit the testimony of one or more witnesses, “each of whom has

told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear error.”

United States v. Gillyard, 261 F.3d 506, 509 (5th Cir. 2001)

(internal quotation and citation omitted).   Here, the officers’

testimony was not contradicted by extrinsic evidence and was not

internally consistent.   The fact that one officer testified that

he smelled marijuana and the other officer testified that he did

not can be explained by the testimony that established that the

officer who testified that he smelled marijuana was standing

closer to the car.   Moreover, the district court found the

officers’ testimony on which probable cause was based to be

credible and more reliable in that they had taken notes and

written reports after the incident.

     Kerr also argues that 18 U.S.C. § 922(g)(1) is

unconstitutional in that it allows the conviction of a defendant

who possesses a gun whose only nexus with interstate commerce was

that at some point in the past the gun traveled in interstate

commerce.   Because Kerr did not challenge the statute’s
                           No. 01-51233
                                -3-

constitutionality below, we review for plain error.     See United

States v. Lankford, 196 F.3d 563, 570 (5th Cir. 1999).

     As conceded by Kerr, this court has repeatedly rejected

constitutional challenges under Lopez to 18 U.S.C. § 922(g)(1)

convictions, concluding that 18 U.S.C. § 922(g)(1)’s interstate

commerce element is satisfied by the possession of a firearm that

was manufactured in a different state or country.     See United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.

denied, 122 S. Ct. 1113 (2002).

     This court is bound by both its own precedent and that of

the Supreme Court.   See United States v. Taylor, 933 F.2d 307,

313 (5th Cir. 1991); United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).

Consequently, Kerr’s argument regarding the constitutionality of

18 U.S.C. § 922(g)(1) fails.   The district court’s judgment is

AFFIRMED.
