### 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 o ffense

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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: 09/01/2016No. 15

- 11204

2 an d 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, 32 3 (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 posses sion 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, 14 5

- 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 t he 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 fail s 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: 09/01/2016No. 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 al ternative motion for an extension of time to file its brief is DENIED

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