UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 01-10780
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD RAY WOODS,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Northern
District of Texas, Fort Worth
(4:00-CR-248-1-A)
___________________________________________________
May 21, 2002
Before DAVIS, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Woods argues that his conviction for possession of a firearm
in violation of 18 U.S.C. § 922(g)(9) contravenes the Commerce
Clause and Second Amendment. For the reasons that follow, we
affirm Woods’ conviction.
I.
In April 1999, Woods was convicted in state court of assault
causing bodily injury to his wife. On May 22, 2000, Fort Worth
*
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this opinion should not be published and is not precedent except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.
police officers executed a search warrant and discovered that Woods
possessed two firearms. He was arrested and tried in federal
district court for two counts of violation of 18 U.S.C. § 922(g).
The government dismissed count one, possession by a felon of
a firearm in violation of § 922(g)(1). Woods filed a motion to
dismiss count two, possession of a firearm by someone previously
convicted of a misdemeanor involving domestic violence in violation
of § 922(g)(9),1 which the court denied. Woods pled guilty to
count two on February 23, 2001, subject to a plea agreement that
preserved his right to appeal his conviction and the denial of his
motion. On June 1, 2001, he was sentenced to 27 months
imprisonment and three years supervised release. He timely
appealed.
II.
Woods argues that § 922(g)(9) is unconstitutional under the
Commerce Clause. He bases this argument upon the Supreme Court’s
recent decisions in United States v. Morrison2 and Jones v. United
States.3 This Court has already rejected this argument. We have
1
“It shall be unlawful for any person ... who has been
convicted in any court of a misdemeanor crime of domestic violence
... to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.”
2
529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
3
529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).
2
held that “the constitutionality of § 922(g) is not open to
question.”4 In U.S. v. Daugherty,5 we held that the Supreme Court’s
reasoning does not apply to cases where, as here, there is a plain
jurisdictional element and the defendant has stipulated to facts
showing that the firearm had traveled in interstate commerce.6
Hence Woods’ Commerce Clause argument fails.
III.
Woods argues next that § 922(g)(9) is unconstitutional under
the Second Amendment. The resolution of this issue is controlled
by our recent decision in Emerson v. United States, 270 F.3d 203
(5th Cir. 2001).
In Emerson the defendant challenged his conviction for
possession of a weapon when under a court order restraining him
from use of force against his wife, in violation of §
922(g)(8)(C)(ii).7 We held that the Second Amendment does give an
individual the right to bear arms, but
that does not mean that those rights may never be made subject
to any limited, narrowly tailored specific exceptions or
4
United States v. DeLeon, 170 F.3d 494, 499 (5th Cir.), cert.
denied, 528 U.S. 863, 120 S.Ct. 156, 145 L.Ed.2d 133 (1999).
5
264 F.3d 513 (5th Cir. 2001).
6
Id. at 518.
7
Section 922(g)(8)(C)(ii) applies to someone “who is subject
to a court order that ... by its terms explicitly prohibits the
use, attempted use, or threatened use of physical force against
such intimate partner or child that would reasonably be expected to
cause bodily injury.”
3
restrictions for particular cases that are reasonable and not
inconsistent with the right of Americans generally to
individually keep and bear their private arms as historically
understood in this country.8
We found that, though it sets a minimal threshold, §
922(g)(8)(C)(ii) permissibly prohibits a class of individuals from
owning firearms during the life of the court order, and therefore
it “does not infringe [one’s] individual rights under the Second
Amendment.”9
Under this reasoning, Woods’ argument that § 922(g)(9)
violates the Second Amendment cannot succeed. If the statute is
constitutional when applied to someone who has been ordered not to
use force against his wife, it is certainly constitutional when
applied to a person who has already been convicted of using such
force. Woods’ conviction is therefore
AFFIRMED.
1
8
270 F.3d at 261.
9
Id. at 260.
4