USA v. Hewitt, et al

Filing 920100111

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Case: 09-50024 Document: 00511000544 Page: 1 Date Filed: 01/11/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 09-50024 Summary Calendar January 11, 2010 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DEXTER DARNELL HEWITT, also known as Dexter Curnell Hewitt, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:07-CR-149-ALL Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges PER CURIAM:* Dexter Darnell Hewitt appeals from his jury verdict conviction for possession with intent to distribute at least 5 grams of crack cocaine within 1,000 feet of a playground pursuant to 21 U.S.C. 841 and 860(a). He was sentenced to 236 months of imprisonment, eight years of supervised release, and a $2,000 fine. Hewitt argues that 860, as applied to him in this case, was not a valid constitutional exercise of federal authority by the United States Congress 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * Case: 09-50024 Document: 00511000544 Page: 2 No. 09-50024 Date Filed: 01/11/2010 because it does not require a nexus with interstate commerce or regulate a commercial activity. His argument is foreclosed by this court's holding in United States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997). Next, Hewitt asserts that the evidence produced at trial was insufficient to support the jury's verdict. Because Hewitt failed to preserve this challenge for appeal, our"review is limited to determining whether there was a manifest miscarriage of justice, that is, whether the record is devoid of evidence pointing to guilt." United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (citations and internal quotations marks omitted). However, our review of the evidence shows that it was sufficient to support the jury's verdict even if Hewitt's challenge had been preserved. See Jackson v. Virginia, 443 U.S. 307, 318 (1979). The judgment of the district court is AFFIRMED. 2

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