IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11204

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NICHOLAS SCOTT SIDES,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-136-1

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Nicholas Scott Sides appeals his guilty plea conviction and his 120-

month sentence of imprisonment for being a felon in possession of a firearm. 

See 18 U.S.C. §§ 922(g), 924(a)(2). The Government moves for summary 

affirmance and, alternatively, for an extension of time to file its brief.

There is no merit to Sides’s contention that the use of a prior felony 

conviction both as the necessary predicate for his felon-in-possession offense 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 1, 2016

Lyle W. Cayce

Clerk

 Case: 15-11204 Document: 00513660954 Page: 1 Date Filed: 09/01/2016
No. 15-11204

2

and to increase his criminal history category constitutes double counting 

prohibited by the Sentencing Guidelines. “[T]he Guidelines do not prohibit 

double counting except when the particular Guideline at issue expressly does 

so.” United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999). In United States 

v. Hawkins, 69 F.3d 11, 14-15 (5th Cir. 1995), we held that the Guidelines 

permit the district court to consider a defendant’s prior felony convictions in 

calculating both his offense level under U.S.S.G. § 2K2.1(a)(1) and his criminal 

history category. “Because one of the elements of the crime of possession of a 

firearm under § 922(g)(1) [is] that the defendant have a prior felony conviction, 

one of [the defendant’s] convictions must be used in calculating his offense 

level.” Id. at 15.

Sides correctly acknowledges that United States v. Alcantar, 733 F.3d 

143, 145-46 (5th Cir. 2013), forecloses his argument, based on Nat’l Fed’n of 

Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (NFIB), that § 922(g) is 

unconstitutional facially and as applied to him because it regulates conduct 

that falls outside of the Government’s power to regulate commerce. As we 

explained, NFIB “did not address the constitutionality of § 922(g)(1), and it did 

not express an intention to overrule the precedents upon which our cases-and 

numerous other cases in other circuits-relied in finding statutes such as 

§ 922(g)(1) constitutional.” Alcantar, 733 F.3d at 146.

Finally, Sides correctly concedes that our decision in United States v.

Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), forecloses his argument that his 

charging document fails to allege the proper mens rea for a felon-in-possession 

offense. In United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009), we 

explained that Dancy is still good law even after the Supreme Court’s decision 

in Flores-Figueroa v. United States, 556 U.S. 646 (2009), on which Sides relies. 

Sides asserts that Dancy should be overruled, but one panel of this court may 

 Case: 15-11204 Document: 00513660954 Page: 2 Date Filed: 09/01/2016
No. 15-11204

3

not overrule the decision of another absent a superseding en banc or Supreme 

Court decision. United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 

2002).

The judgment of the district court is AFFIRMED. The Government’s 

motion for summary affirmance is GRANTED, and its alternative motion for 

an extension of time to file its brief is DENIED.

 Case: 15-11204 Document: 00513660954 Page: 3 Date Filed: 09/01/2016