Case: 15-11041      Document: 00513688375         Page: 1    Date Filed: 09/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-11041                                 FILED
                                Cons. w/ No. 15-11043                   September 22, 2016
                                 Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN JACOB STEINBERG,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:15-CR-160-1
                             USDC No. 4:15-CR-89-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       In this consolidated appeal, Martin Jacob Steinberg challenges his
convictions    and    sentences     for   possession     with    intent     to      distribute
methamphetamine (Count 1), possession of a firearm in furtherance of a drug
trafficking crime (Count 2), and being a felon in possession of a firearm (Count
3). He also challenges the revocation of his term of supervised release for his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                     No. 15-11041 Cons. w/ No. 15-11043

2002 conviction for conspiracy to possess with intent to distribute 50 kilograms
or more of marijuana and the revocation sentence imposed.
      Steinberg correctly concedes that        his argument that separate
prosecutions for Count 1 and Count 2 violated the Double Jeopardy Clause is
foreclosed by circuit precedent. See United States v. Nguyen, 117 F.3d 796, 797
& n.1 (5th Cir. 1997); United States v. Martinez, 28 F.3d 444, 446 (5th Cir.
1994). He also correctly concedes that his arguments that 18 U.S.C. § 922(g)(1)
is unconstitutional because it exceeds the scope of Congress’s power under the
Commerce Clause and because it does not require proof of knowledge that the
firearm traveled in interstate commerce are also foreclosed. 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. De Leon, 170 F.3d 494, 499
(5th Cir. 1999); United States v. Rose, 587 F.3d 695, 705-06 (5th Cir. 2009). He
raises the arguments to preserve them for further review.
      We review Steinberg’s challenge to the constitutionality of 21 U.S.C.
§ 841(b)(1)(B) de novo. See United States v. Howard, 766 F.3d 414, 419 (5th
Cir. 2014), cert. denied, 135 S. Ct. 1015 (2015). The statute is, on its face,
sufficiently clear to inform an individual of ordinary intelligence of the acts
that are being criminalized. See United States v. Brewer, 835 F.2d 550, 553
(5th Cir. 1987). Accordingly, the statute is not void for vagueness. See id.
      Steinberg’s challenge to the jury instructions is unavailing. The district
court’s verbiage communicated a correct statement of the elements of the
offense and was virtually identical to this circuit’s pattern jury instructions.
Accordingly, the district court did not abuse its discretion by giving the chosen
instruction. See United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009);
United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009).




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                      No. 15-11041 Cons. w/ No. 15-11043

      In a preserved challenge to the reasonableness of his 270-month
aggregate sentence on his new convictions, Steinberg argues that the 42-month
upward variance on Count 1 leads to an unreasonable sentence. However,
nothing in the record suggests that the district court did not account for a factor
that should have received significant weight, gave significant weight to an
improper or irrelevant factor, or made a clear error of judgment in balancing
the sentencing factors. See Gall v. United States, 552 U.S. 38, 46, 49-50 (2007);
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Moreover, this court
has upheld significantly greater variances than the 42-month variance
presented herein. See United States v. Key, 599 F.3d 469, 475-76 (5th Cir.
2010); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005). Under the
totality of the circumstances, the 270-month aggregate sentence is not
substantively unreasonable. See United States v. Gerezano-Rosales, 692 F.3d
393, 400 (5th Cir. 2012).
      In his final argument, Steinberg challenges the validity of the revocation
of his term of supervised release in light of his argument that his new
convictions should be vacated.       Steinberg pleaded true to violating six
conditions of supervised release, at least two of which were unrelated to the
new convictions. Steinberg’s admission to any one of these violation provided
a sufficient basis to revoke his term of supervised release.            18 U.S.C.
§ 3583(e)(3).   Moreover, as noted above, there is no basis to overturn his
convictions. Therefore, Steinberg’s challenge to the validity of his supervised
release is without merit.
      The judgments of the district court are AFFIRMED.




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