United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-20777 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS JACKSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-33 --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Thomas Jackson appeals his guilty plea conviction for being

a felon in possession of a firearm. Jackson argues that his

prosecution under

(g) violated both the Commerce

Clause and the Tenth Amendment because there was no evidence

showing that the firearm was in or substantially affected

interstate commerce. Jackson concedes that various panels of

this court have rejected his argument. See, e.g., United States

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-20777 -2-

v. Daugherty,

(5th Cir. 2001). He raises the

issue only to preserve it for Supreme Court review.

A panel of this court cannot overrule a prior panel’s

decision in the absence of an intervening contrary or superseding

decision by this court sitting en banc or by the United States

Supreme Court. Burge v. Parish of St. Tammany,

(5th Cir. 1999). No such decision exists. Accordingly,

Jackson’s argument is indeed foreclosed. The judgment of the

district court is AFFIRMED.

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.