UNITED STATES OF AMERICA v. MARIO ALBERTO GARCIA BALDERAS (2016)

Mario Alberto Garcia-Balderas appeals his convictions and sentences of being an alien illegally in the United States in possession of a firearm and of being a felon in possession of a firearm for which he was sentenced to 120 months of imprisonment on each count, to run concurrently with each other. See 18 U.S.C. § 922(g)(1), (g)(5)(A); 18 U.S.C. § 924(a)(2).

Garcia-Balderas challenges the constitutionality of § 922(g)(1) and (g) 5), arguing that the statute does not require a substantial effect on interstate commerce or, in the alternative, that the Government adduced insufficient evidence to show that the “mere movement” of the components of a firearm constituted a substantial effect on interstate or foreign commerce. As he acknowledges, his argument is foreclosed by our prior decisions holding that § 922(g) generally, and § 922(g)(1) in particular, is a valid exercise of Congress's authority under the Commerce Clause. See United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989); see also United States v. Baltazar-Lopez, 273 F.3d 1099 (5th Cir. 2001) (treating § 922(g)(5) as indistinguishable from § 922(g)(1)).

Garcia-Balderas also argues that his convictions and sentences on charges both of being an illegal alien in possession of a firearm and of being a felon in possession of a firearm are multiplicitous and violate the Double Jeopardy Clause. See § 922(g)(1), (g)(5). As the Government concedes, the simultaneous charges under § 922(g)(1) and (g)(5), which arise from the same single incident of possession of firearms, violate the constitutional prohibition on multiple punishments for one offence. See United States v. Munoz-Romo, 989 F.2d 757, 759-60 (5th Cir. 1993).

We, therefore, VACATE the sentences and REMAND to the district court to vacate either of the convictions and resentence Garcia-Balderas on the remaining count.

PER CURIAM:*