Conference Calendar UNITED STATES OF AMERICA v. Kermit Hpowdrill, Ii

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10296
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KERMIT H POWDRILL, II
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-43-ALL
Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Kermit H. Powdrill, II, appeals his guilty plea conviction and sentence for
possession with the intent to distribute marijuana, possession of a firearm in
furtherance of a drug-trafficking crime, two counts of being a felon in possession
of a firearm, and receipt of a firearm while under felony indictment. Powdrill
argues that the district court abused its discretion in denying his motion for
leave to file an out-of-time pretrial motion challenging his indictment. Powdrill
sought to present arguments that are foreclosed under the law of this circuit.
United States Court of Appeals
Fifth Circuit
F I L E D
February 20, 2008
Charles R. Fulbruge III
Clerk

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No. 07-10296
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The district court did not abuse its discretion in denying Powdrill’s motion. See
United States v. Knezek, 964 F.2d 394, 397 (5th Cir. 1992).
Powdrill also argues that 18 U.S.C. § 922(g)(1) is unconstitutional because
the statute does not require a substantial effect on interstate commerce and it
exceeds Congressional authority under the Commerce Clause. Powdrill’s
challenge to the constitutionality of § 922(g)(1) is foreclosed by circuit precedent.
See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001). Powdrill
concedes as much but raises the issue to preserve it for further review.
Accordingly, the judgment of the district court is AFFIRMED.

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