F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3380
v. (D . of Kan.)
LU KE E. STO KES, (D.C. No. 06-CR-10026-M LB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TACH A, Chief Judge, B ALDOCK , and TYM KOVICH, Circuit Judges. **
Luke Stokes was charged with marijuana possession and possessing a
firearm “in and affecting commerce” after having been convicted of a felony.
The marijuana charge was dropped in return for Stokes’s guilty plea to felon
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Per the Court’s M arch 19, 2007 Order, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G ).
The cause is therefore ordered submitted without oral argument.
possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Stokes was sentenced
to 55-months imprisonment, followed by 3 years of supervised release.
In his plea agreement, Stokes preserved the right to challenge the
constitutionality of § 922(g)(1). He contends the statute exceeds Congress’s
Commerce Clause powers w hen it criminalizes firearms possession based merely
on the fact the firearm crossed state borders at some time prior to possession.
Three prior panels of this court have upheld § 922(g)(1) against Commerce
Clause challenges. See United States v. Dorris, 236 F.3d 582, (10th Cir. 2000);
United States v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996); United States v.
Bolton, 68 F.3d 396 (10th Cir. 1995). These cases rely on Scarborough v. United
States, 431 U .S. 563 (1977), which upheld the predecessor statute to § 922 against
a Commerce Clause challenge. W e are bound by these precedents. See United
States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) (“One panel of the court
cannot overrule circuit precedent.”).
Stokes argues that we should revisit these cases in light of the Supreme
Court decision in United States v. Lopez, 514 U.S. 549 (1995) and subsequent
Commerce Clause cases such as Gonzales v. Raich, 545 U.S. 1 (2005), and United
States v. M orrison, 529 U.S. 598 (2000). He contends the Supreme Court’s
Scarborough decision is questionable given the analytical framew ork established
in those cases for considering the scope of the Commerce Clause.
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W e recently revisited and rejected the argument Stokes urges here. W hile
agreeing that the Lopez line of cases casts doubt on whether mere possession of a
regulated object (body armor) “substantially affects interstate commerce” under
our current understanding of the Commerce Clause, the “constitutional
understanding implicit in Scarborough” is “that Congress may regulate any
firearm that has ever traversed state lines.” United States v. Patton, 451 F.3d
615, 634 (10th Cir. 2006). In Patton, although we agreed with the defendant’s
argument that Scarborough is in tension with current Commerce Clause
jurisprudence, citing numerous other circuits expressing doubts about
Scarborough’s “continuing validity,” id., we concluded that we remain bound by
Scarborough. Id. at 636. “Any doctrinal inconsistency between Scarborough and
the Supreme Court’s more recent decisions is not for this Court to remedy.” Id.
In sum “[u]nless and until the Supreme Court determines otherwise, we will
continue to follow applicable precedent.” United States v. Holyfield, ___F.3d___,
No. 05-1318, 2007 W L 970152 (10th Cir. April 3, 2007) (quoting United States v.
M oore, 401 F.3d 1220, 1224 (10th Cir. 2005)).
Accordingly, we DISM ISS this appeal.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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