IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-21145

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LIONELL CHARLES BALTIMORE,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (01-CR-406)

November 25, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Lionell Charles Baltimore appeals his sentence after pleading

guilty to being a felon in possession of a firearm, in violation of

(g)(1), 924(a)(2). Baltimore argues that the

district court erred in applying the cross reference in U.S.S.G. §

2K2.1(c)(1)(A) to calculate his sentence. He argues that the court

erred in finding that he possessed a firearm in connection with the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. commission of another offense, namely possession with the intent to

distribute 13.3 grams of crack cocaine.

The district court’s application of the sentencing guidelines

is reviewed de novo, and its factual findings are reviewed for

clear error.1

Baltimore’s firearm was in plain view in the car he was

driving. After Baltimore was detained, a clear plastic bag

containing 13.3 grams of crack cocaine fell to the floor from his

rear pants area. Given that the gun and the drugs had been in

close proximity to one another, the physical and functional nexus

between the drugs and the gun was met such that he was in

possession of the gun while committing the offense of possession of

crack cocaine with intent to distribute.2

Baltimore also argues that

(g)(1) is

unconstitutional because it requires only a minimal Commerce Clause

nexus. He acknowledges that this argument is foreclosed by this

court’s decision in United States v. Daugherty,3 but seeks to

preserve the argument for further review. Baltimore’s sentence is

AFFIRMED.

1 United States v. Vasquez,

(5th Cir. 2002). 2 See United States v. Mitchell,

(5th Cir. 1999). 3

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

(2002).

2