IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10471
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWIGHT LAMAR SANDERS,
Defendant-Appellant.
____________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CR-92-A
____________________________________________
February 28, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Dwight Lamar Sanders appeals from his conviction for being a
felon in possession of a firearm. Sanders contends that the
prosecutor failed to personally review the personnel files of
police witnesses; that the destruction of a key in his case
violated due process; that he was coerced into possessing a weapon
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
1
because state law allowed him to do so; that 18 U.S.C. § 922(g)(1)
violates the Commerce Clause; that the district court improperly
took from the jury the issue whether Sanders’s possession of a
firearm affected interstate commerce; and that the district court
failed to make factual findings regarding whether U.S.S.G. § 4B1.4
is unconstitutional.
Sanders has failed to demonstrate error regarding whether the
prosecutor personally inspected the personnel files; the prosecutor
is under no duty to personally inspect such files. See United
States v. Marrero, 904 F.2d 251, 261 (5th Cir.), cert. denied, 498
U.S. 1000 (1990). Sanders has failed to demonstrate plain error
regarding whether the Government failed to provide him with the
personnel files; his assertion that they might have assisted him is
speculative and he admits that the probability is low that the
files would yield evidence that would have damaged the credibility
of the police officers.
Sanders raised his contention regarding the key for the first
time in his motion for a new trial; that motion was denied for lack
of jurisdiction as untimely. Sanders does not brief whether that
denial was erroneous; he has failed to brief the relevant issue for
appeal. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
Sanders’s contention that state law allowed him to possess a
firearm is unconvincing. Texas’s firearm laws do not implicate the
2
federal felon-in-possession statute. United States v. Thomas, 991
F.2d 206, 214-15 (5th Cir.), cert. denied, 510 U.S. 1014 (1993).
Sanders contends that the felon-in-possession statute violates
the Commerce Clause because there is no rational basis for
Congress’s finding that possession of a firearm affects interstate
commerce sufficiently for the activity to be penalized. The law in
this circuit is clear that 18 U.S.C. § 922(g)(1) does not violate
the Commerce Clause. United States v. Rawls, 85 F.3d 240, 242 (5th
Cir. 1996). Sanders concedes that the law forcloses his position,
but requests that this court overrule United States v. Rawls, 85
F.3d 240 (5th Cir. 1996). He also states that he would like to
have this court reconsider Rawls en banc. One panel of this court
cannot overrule another panel, United States v. Taylor, 933 F.2d
307, 313 (5th Cir.), cert. denied, 502 U.S. 883 (1991), and Sanders
does not comply with the requirements for seeking initial
determination of his appeal en banc. See FED. R. APP. P. 35(b).
Sanders next contends that the district court improperly
removed from the jury the question whether his possession of a
firearm affected interstate commerce. Sanders’s contention is
unavailing. The district court gave the jury the following
instruction:
If you have found that the defendant possessed the
firearm in question, you may find that such firearm was
in or affecting interstate commerce if you find that it
had traveled, at some time, from one state to another,
prior to the defendant’s possession of the firearm.
3
A criminal defendant enjoys the right to have a jury determine his
guilt of every element of his crime beyond a reasonable doubt.
United States v. Gaudin, 115 S. Ct. 2310, 2320 (1995). The
district court’s interstate-commerce instruction allowed the jury
to find the interstate commerce nexus satisfied if it found that
Sanders’s firearm had traveled in interstate commerce; the
instruction did not require the jury to do so. The instruction did
not remove the issue from the jury’s consideration. Cf. United
States v. Gaudin, 115 S. Ct. 2310, 2320 (1995).
Finally, FED. R. CRIM. P. 32 does not require district courts
to make factual findings on purely legal issues.
AFFIRMED.
4