UNITED STATES of America, Plaintiff-Appellee, v. Dale A. BENJAMIN, also known as Dale Benjamin, DefendantAppellant, 129 F. App'x 887

PER CURIAM: Dale Benjamin appeals from his jury-trial conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Benjamin argues that the trial court violated his protection against double jeopardy when the court declared a mistrial and a second jury found him guilty of the charged offense, that the trial court committed errors with respect to an Allen charge, that the evidence was insufficient to establish possession of a firearm, and that 18 U.S.C. § 922(

g) is unconstitutional. Double jeopardy • [1] Benjamin did not contemporaneously and expressly object to the trial court’s sua sponte declaration of a mistrial at trial, but filed his “motion to bar retrial on grounds of double jeopardy” nearly two weeks after the trial court declared a mistrial. Accordingly, his double jeopardy argument is waived by implied consent. See United States v. Palmer, 122 F.3d 215, 218-19 (5th Cir.1997); United States v.

Nichols, 977 F.2d 972, 973-75 (5th Cir.1992) (when a defendant “does not object timely to the declaration of a mistrial, his double jeopardy claim may be vitiated by his consent.”). Allen charge Benjamin argues that the trial court issued an improper modified Mien charge, erred in giving the jury a typewritten Allen charge, and failed to give the jury a second standard Allen charge. Because Benjamin failed to raise these objections at trial, they are reviewed for plain error. See United States v. McClatchy, 249 F.3d 348, 359 (5th Cir.2001).

First, the modified Allen charge that the trial court gave to the jury was neither coercive nor prejudicial. See id. Rather, the trial court encouraged the jurors to continue deliberating without surrendering any firm convictions. Benjamin does not allege that the trial court’s modified Allen charge imposed a coercive deadline, contained threats regarding lengthy deliberations, or pressured the views of minority jurors. See United States v. Solomon, 565 F.2d 364, 366 (5th Cir.1978).

Second, Benjamin argues that the trial court was required to issue the jury an Allen charge by an oral instruction instead of through a typewritten form. Benjamin fails to demonstrate plain error with respect to this format. See Solomon, 565 F.2d at 366. Finally, Benjamin argues that the trial court erred in failing to issue the jury a second Allen charge that conformed to a standard pattern jury charge. Benjamin provides no authority for his argument that the trial court was required to issue another Allen charge after the court’s first modified charge had faded.

Accordingly, Benjamin cannot establish plain error with respect to his Allen charge arguments. See Solomon, 565 F.2d at 366. Sufficiency of the evidence Benjamin argues that the evidence was insufficient to establish that he possessed the firearm. Benjamin properly preserved this issue by unsuccessfully moving for a judgment of acquittal at the close of the Government’s case and at the close of all evidence; therefore, this issue is reviewed de novo. See United States v. Izydore, 167 F.3d 213, 219 (5th Cir.1999).

The record contains testimony from the officer who pursued Benjamin and observed him carrying a firearm. Although Benjamin argues that this testimony was incredible, the jury was entitled to believe the testimony of the officer. See United States v. Gadison, 8 F.3d 186, 190 (5th Cir.1993). Constitutionality of 18 U.S.C. § 922(

g) For the first time on appeal, Benjamin argues that 18 U.S.C. § 922(

g) is unconstitutional because the Government failed to establish a sufficient nexus between the firearm that he possessed and interstate commerce. Benjamin acknowledges that his argument is foreclosed by this court’s precedent; however, he raises the argument to preserve it for Supreme Court review. This court has emphasized that the constitutionality of § 922(

g) is not open to question. United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). A panel of this court cannot overrule a prior panel’s decision in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court. United States v. Short, 181 F.3d 620, 624 (5th Cir.1999). No such decision exists. Benjamin’s argument is foreclosed. The judgment of the trial court is AFFIRMED. 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. . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).