UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4807
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN SYLVESTER MORRISON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00327-NCT-1)
Submitted: July 12, 2011 Decided: August 9, 2011
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Sylvester Morrison was convicted by a jury of one
count of being a felon in possession of ammunition, in violation
of 18 U.S.C. § 922(g)(1) (2006), and one count of possession of
ammunition by an unlawful user of a controlled substance, in
violation of § 18 U.S.C. § 922(g)(3) (2006). The district court
sentenced Morrison to 180 months in prison for count one and 120
months in prison for count two, to run concurrently. Morrison
timely appealed. Before filing its response brief, the
Government filed a motion for a partial remand and a motion to
suspend the briefing order. We granted the motion for a partial
remand while retaining jurisdiction over the appeal. On remand,
pursuant to the Government’s motion, the district court
dismissed count two and sentenced Morrison to 180 months’
imprisonment on count one. The Government then filed its brief
in this court. We affirm.
Morrison first contends that the district court erred
in convicting and sentencing him on two counts of violating 18
U.S.C. § 922(g) instead of dismissing one count as
multiplicitous. Because the district court remedied all
multiplicity problems on remand, this claim is moot.
Morrison also claims that the “in or affecting
commerce” element of his 18 U.S.C. § 922(g)(1) felon in
possession charge is unconstitutional because, as applied to
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Morrison, it exceeds Congress’s authority under the Commerce
Clause. Because Morrison failed to preserve the issue for
appeal, this claim is reviewed for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993) (reviewing unpreserved
issues for plain error). Morrison admits that the precedent of
this Circuit forecloses his current argument. See United
States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996) (rejecting the
argument that § 922(g)’s constitutionality was affected by the
Court’s decision in United States v. Lopez, 514 U.S. 549
(1995)); United States v. Gallimore, 247 F.3d 134, 137-38 (4th
Cir. 2010) (rejecting the same claim Morrison currently makes
with respect to United States v. Morrison, 529 U.S. 598 (2000),
and Jones v. United States, 529 U.S. 848 (2000)). Moreover,
Morrison correctly recognizes that a three-judge panel of this
court cannot overrule another three-judge panel. United
States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (“A
decision of a panel of this court becomes the law of the circuit
and is binding on other panels unless it is overruled by a
subsequent en banc opinion of this court or a superseding
contrary decision of the Supreme Court.” (internal quotation
marks omitted)).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid in the decisional
process.
AFFIRMED
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