USA v. Powdrill

Filing 920080220


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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-10296 Conference Calendar February 20, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. KERMIT H POWDRILL, II Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 1:06-CR-43-ALL Before KING, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Kermit H. Powdrill, II, appeals his guilty plea conviction and sentence for possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug-trafficking crime, two counts of being a felon in possession of a firearm, and receipt of a firearm while under felony indictment. Powdrill argues that the district court abused its discretion in denying his motion for leave to file an out-of-time pretrial motion challenging his indictment. Powdrill sought to present arguments that are foreclosed under the law of this circuit. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10296 The district court did not abuse its discretion in denying Powdrill's motion. See United States v. Knezek, 964 F.2d 394, 397 (5th Cir. 1992). Powdrill also argues that 18 U.S.C. 922(g)(1) is unconstitutional because the statute does not require a substantial effect on interstate commerce and it exceeds Congressional authority under the Commerce Clause. Powdrill's challenge to the constitutionality of 922(g)(1) is foreclosed by circuit precedent. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001). Powdrill concedes as much but raises the issue to preserve it for further review. Accordingly, the judgment of the district court is AFFIRMED. 2

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