IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

Case No. 01-20954 ___________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAMES CLYDE FOBBS

Defendant-Appellant

___________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-01-CR-250) ___________________________________________________ January 6, 2003

Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.

PER CURIAM*:

After waiving his right to a jury trial and proceeding to a

bench trial on stipulated facts, Appellant James Clyde Fobbs was

found guilty of being a convicted felon in possession of a firearm

in violation of

(g)(1) and 924(a)(2). Fobbs was

sentenced to a term of fifty-one months in prison and a three-year

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 term of supervised release. The district court also imposed a $100

special assessment fee against him. Fobbs brings three points of

error on appeal.

PROCEDURAL BACKGROUND

During the bench trial, Fobbs stipulated that (1) he knowingly

possessed the firearm at issue on March 5, 2001, (2) the firearm

was manufactured outside of the State of Texas and (3) he was

previously convicted of three felony offenses —— theft from a

person in 1996, possession of a controlled substance in 1998 and

possession of cocaine in 2000. The Presentence Report (“PSR”)

recommended a base offense level of 20 pursuant to § 2K2.1(a)(4) as

a result of Fobbs’s state conviction for theft from a person in

1996.

Fobbs filed a written objection to the PSR, contending that

the specific facts underlying his theft from a person conviction

did not involve a “serious risk of injury” to the victim as

required for the crime to be a “crime of violence” under U.S.S.G.

§§ 2K2.1 and 4B1.2(a)(1).2 Based on this court’s holding in United

States v. Hawkins,

(5th Cir. 1995), the district court

overruled this objection. It determined that Fobbs’s theft from a

2 The PSR and the transcript testimony at sentencing discuss the facts surrounding this conviction. After the victim cashed his payroll check for $456, Fobbs grabbed the money and fled. Upon entering a guilty plea, Fobbs was sentenced to two years in state jail probated for five years. However, after further arrests and related violations of his conditions of community supervision, this probation term was revoked and Fobbs was sentenced to an eight-month state jail term.

2 person conviction constitutes a “crime of violence” under U.S.S.G.

§§ 2K2.1 and 4B1.2(a)(1).

Utilizing a base offense level of twenty prescribed by

§ 2K2.1(a)(4) and a criminal history category of IV, the district

court applied a three-point acceptance of responsibility reduction

to calculate the resulting guideline imprisonment range to be

fifty-one to sixty-three months. As stated, the district court

sentenced Fobbs to the low end of this range —— fifty-one months of

imprisonment.

ANALYSIS OF FOBBS’S SENTENCE

Although Fobbs raises three points of error on appeal, he

concedes that two of these points are foreclosed by circuit

precedent and are raised only to preserve them for further review.

See McKnight v. General Motors Corp.,

(1994)

(“Filing an appeal was the only way petitioner could preserve the

issue pending a possible favorable decision by this Court”); United

States v. Mackay,

, 492 n.3 (5th Cir. 1994). As

conceded by Fobbs, United States v. Hawkins,

(5th

Cir. 1995), is binding on this court regarding his contention that

the crime of theft from a person under Texas law is not a “crime of

violence” as defined by §§ 2K2.1 and 4B1.2(a)(1). Martin v.

Medtronic, Inc.,

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

(2002) (“[A] panel of this court can only overrule

a prior panel decision if ‘such overruling is unequivocally

3 directed by controlling Supreme Court precedent.’”) (quoting United

States v. Zuniga-Salinas,

(5th Cir. 1991)).

Further, on numerous occasions —— both before and after United

States v. Morrison,

(2000) and Jones v. United States,

(2000) —— this court has held that

(g)

is a constitutional exercise of Congress’s power under the Commerce

Clause and that § 922(g) is constitutionally applied to a defendant

who evidences entirely intrastate possession of a firearm that is

manufactured out-of-state. See, e.g., United States v. Lee, – F.3d

–,

(5th Cir. 2002) (finding that a

sufficient interstate commerce nexus exists where the weapon was

manufactured out-of-state but possessed in Texas); United States v.

Cavazos,

(5th Cir.), cert. denied,

(2002); United States v. Henry,

(5th Cir.),

cert. denied,

(2002); United States v. Daugherty,

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

(2002); United States v. Pierson,

(5th Cir.

1998); United States v. Kuban,

(5th Cir. 1996);

United States v. Rawls,

(5th Cir. 1996). As

conceded, Fobbs’s appellate argument regarding the

constitutionality of

(g) is not an open question in

this circuit. Martin,

.

Fobbs’s final contention is that his 1996 state conviction for

theft from a person does not constitute a “prior felony conviction”

as required by U.S.S.G. §§ 2K2.1(a)(4) and 4B1.2 for the district

4 court to impose a base offense level of twenty because it is not an

“offense punishable by death or imprisonment for a term exceeding

one year.”3

At the time of Fobbs’s sentencing for the 1996 conviction,

theft from a person was a state jail felony under Texas law. See

TEX. PENAL CODE § 31.03(e)(4)(B). Although state jail felonies at

that time carried a maximum punishment of two years and a fine of

$10,000, TEX. PENAL CODE § 12.35, Texas’s Code of Criminal Procedure

required that if a defendant convicted of a state jail felony had

no previous felony convictions, the state sentencing judge had to

suspend the sentence of confinement and place the defendant on

community supervision (probation). See TEX. CODE CRIM. P. art.

42.12, § 15(a) (1996) (“[T]he judge shall suspend the imposition of

the sentence of confinement and place the defendant on community

supervision, unless the defendant has been previously convicted of

a felony”). When sentenced for his state jail felony of theft from

3 SENTENCING GUIDELINES MANUAL, § 4B1.2 cmt. 1 (2000). Under the Firearms Guideline in the United States Sentencing Commission Guidelines Manual for the year 2000, § 2K2.1(a)(4) allows for a base offense level of twenty if “the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense.” U.S. SENTENCING GUIDELINES MANUAL, § 2K2.1(a)(4)(2000). Application note 5 to the commentary to § 2K2.1 directs that “prior felony conviction” is defined under the Definitions of Terms in § 4B1.2. Id. at cmt. 5. Application note 1 to § 4B1.2 states that the term “‘prior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” U.S. SENTENCING GUIDELINES MANUAL, § 4B1.2 cmt. 1 (2000).

5 a person, Fobbs had not previously been convicted of a felony. He

thus maintains that because the state sentencing judge had no

discretion to sentence him to “imprisonment for a term exceeding

one year,” the crime falls outside of the definition of a “prior

felony conviction” under §§ 2K2.1(a)(4) and 4B1.2, and the district

court erred in calculating his base offense level at twenty.

Fobbs raises this point for the first time on appeal. We must

therefore review the sentence for plain error, under which Fobbs

must show there was error, that was plain and that affected his

substantial rights. Henry,

. We will thereafter

correct the plain error only if it seriously affects the fairness,

integrity or public reputation of the judicial proceeding. Id;

United States v. Ravitch,

(5th Cir. 1997).

A recent panel decision of this court obviates the need for us

to address Fobbs’s argument on this point in much detail. See

United States v. Caicedo-Cuero, – F.3d –,

, at * 4-

6 (5th Cir. 2002); Appellant Reply at 2 (Fobbs arguing that

“[b]ecause Caicedo-Cuero presents essentially the same issue as

that presented here, this Court should hold this case pending a

decision.”). In Caicedo-Cuero, this court held that the

defendant’s 1995 Texas state jail felony qualifies as a “prior

felony conviction” for sentencing purposes under U.S.S.G. § 2L1.2

even though Texas law at the time of the defendant’s sentencing

called for mandatory community supervision for the defendant.

(“Considering both the reason for creation of

6 the state jail felony category and the fact that such crimes were

still substantively regarded as felonies supports the notion that

. . . the fact that a defendant is a first-time offender [is], as

the district court labeled it, a mere ‘sentencing factor’ that

resulted in automatic suspension of the sentence of confinement.”).

We are bound by this precedent to overrule Fobbs’s final objection.

See Martin,

.

CONCLUSION

Finding no error, we AFFIRM Fobbs’s sentence.

7