                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                            F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                           September 23, 2004
                                  FOR THE FIFTH CIRCUIT
                                                                                         Charles R. Fulbruge III
                                                                                                 Clerk
                                           No. 03-20939
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                       Plaintiff-
                                                          Appellee,

                                                 versus

VICTOR LAMAR GIBBS,

                                                                                     Defendant-
                                                          Appellant.

                        ----------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                      USDC No. H-03-CR-91-1
                         ---------------------------------------------------------

Before WIENER, BENAVIDES AND STEWART, Circuit Judges.

PER CURIAM:*

       Victor Gibbs appeals his jury-trial conviction for possession of a firearm by a convicted felon

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Gibbs argues that the district court erred in

submitting a jury instruction on deliberate ignorance.

       Because Gibbs failed to object to the court’s jury instruction, the issue is reviewed for plain

error. See United States v. Harris, 104 F.3d 1465, 1471-72 (5th Cir. 1997). This court will uphold

       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the deliberate ignorance instruction so long as sufficient evidence supports its inclusion. Id. at 951.

         The record contains substantial evidence that Gibbs had actual knowledge of the presence of

the firearm in his vehicle. Testimony from two different arresting officers provided that Gibbs made

statements concerning his awareness of the presence of the firearm. The jury was entitled to believe

this testimony. See United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Moreover, testimony

from the officers concerning the unusual way in which Gibbs was seated to conceal the firearm

supports the conclusion that Gibbs was aware of the firearm. Accordingly, no plain error occurred

in the court’s submission of the instruction. See Threadgill, 172 F.3d at 369.

         Gibbs further argues that the district court’s deliberate ignorance instruction failed to contain

an element of conscious avoidance. Gibbs cannot demonstrate plain error with respect to this

argument because the district court’s instruction tracked the relevant pattern jury charge and he did

not object to the instruction at trial. See United States v. Stewart, 879 F.2d 1268, 1271 (5th Cir.

1989).

         Gibbs finally argues that this court should reconsider its jurisprudence regarding the

constitutionality of 18 U.S.C.

§ 922(g)(1). “This court has repeatedly emphasized that the constitutionality of § 922(g)(1) is not

open to question.”

See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001). Gibbs concedes that his

argument is foreclosed by case law from this circuit. He raises his argument solely to preserve it for

Supreme Court review. The judgment of the district court is AFFIRMED.




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