USA v. Jose Mendez

Filing

UNPUBLISHED OPINION FILED. [13-40268 Affirmed ] Judge: JLW , Judge: PRO , Judge: CH Mandate pull date is 12/02/2013 for Appellant Jose Antelmo Mendez; granting motion for summary affirmance filed by Appellant Mr. Jose Antelmo Mendez [7435333-2] [13-40268]

Case: 13-40268

Document: 00512433657

Page: 1

Date Filed: 11/07/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-40268
Summary Calendar

November 7, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ANTELMO MENDEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-854-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Antelmo Mendez pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to the mandatory
minimum sentence of 180 months of imprisonment. Represented by the Federal
Public Defender, Mendez raises two arguments, in order to preserve the issues
for further review, that he correctly concedes are foreclosed by circuit precedent.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40268

Document: 00512433657

Page: 2

Date Filed: 11/07/2013

No. 13-40268
Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the Government was
not required to charge in the indictment the predicate facts for the ACCA
enhancement and either have Mendez admit those facts or have those facts
proven to a jury. See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006);
United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002). “‘[N]either the [ACCA]
nor the Constitution requires a jury finding on the existence of the three
previous felony convictions required for the enhancement.’” White, 465 F.3d at
254 (quoting Stone, 306 F.3d at 243). Likewise, Mendez’s Commerce Clause
challenge to the constitutionality of § 922(g)(1) is foreclosed, and “‘the
constitutionality of § 922(g) is not open to question.’”

United States v.

Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) (quoting United States v. De Leon,
170 F.3d 494, 499 (5th Cir. 1999)).
The appellant’s motion for summary disposition is GRANTED, and the
judgment of the district court is AFFIRMED.

2