IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20297 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN MICHAEL STEARNS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-677-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

John Michael Stearns appeals his guilty-plea conviction and

sentence for possession of a firearm by a convicted felon in

violation of

(g)(1) and 924(a)(2). Stearns

contends that

(g)(1) is unconstitutional on its

face because it does not require that there be a “substantial”

effect on interstate commerce. He contends that if a substantial

effect on interstate commerce is required for a 18 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20297 -2-

§ 922(g)(1) conviction, his indictment was deficient because it

did not allege the “substantial” effect on interstate commerce

necessary to render the statute constitutional. Stearns also

argues that the factual basis for his guilty plea, which showed

his intrastate possession of a firearm manufactured outside the

state, was insufficient to establish the nexus with interstate

commerce required by

(g)(1).

Stearns acknowledges that his arguments are foreclosed by

existing Fifth Circuit precedent. See United States v.

Daugherty,

(5th Cir. 2001), cert. denied,

(2002); United States v. Gresham,

(5th Cir. 1997); United States v. Kuban,

(5th

Cir. 1996); United States v. Rawls,

(5th Cir.

1996). Stearns raises the issues solely to preserve them for

possible Supreme Court review.

Stearns also contends, in light of the reasoning set forth

in Jones v. United States,

(2000), that

(g)(1) can no longer constitutionally be construed to cover

the intrastate possession of a handgun merely due to the fact

that it traveled across state lines at some point in the past.

Stearns argues that such a construction would be applicable to

99% of all firearms in existence. His argument is foreclosed by

this court’s holding in Daugherty,

. Accordingly,

the judgment of the district court is AFFIRMED. No. 02-20297 -3-

The Government has moved for a summary affirmance in lieu of

filing an appellee's brief. In its motion, the Government asks

that an appellee's brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.