IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20297
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MICHAEL STEARNS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-677-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
John Michael Stearns appeals his guilty-plea conviction and
sentence for possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Stearns
contends that 18 U.S.C. § 922(g)(1) is unconstitutional on its
face because it does not require that there be a “substantial”
effect on interstate commerce. He contends that if a substantial
effect on interstate commerce is required for a 18 U.S.C.
*
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that this opinion should not be published and is not precedent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.
No. 02-20297
-2-
§ 922(g)(1) conviction, his indictment was deficient because it
did not allege the “substantial” effect on interstate commerce
necessary to render the statute constitutional. Stearns also
argues that the factual basis for his guilty plea, which showed
his intrastate possession of a firearm manufactured outside the
state, was insufficient to establish the nexus with interstate
commerce required by 18 U.S.C. § 922(g)(1).
Stearns acknowledges that his arguments are foreclosed by
existing Fifth Circuit precedent. See United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert. denied, 534
U.S. 1150 (2002); United States v. Gresham, 118 F.3d 258, 264-65
(5th Cir. 1997); United States v. Kuban, 94 F.3d 971, 973 (5th
Cir. 1996); United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.
1996). Stearns raises the issues solely to preserve them for
possible Supreme Court review.
Stearns also contends, in light of the reasoning set forth
in Jones v. United States, 529 U.S. 848 (2000), that 18 U.S.C.
§ 922(g)(1) can no longer constitutionally be construed to cover
the intrastate possession of a handgun merely due to the fact
that it traveled across state lines at some point in the past.
Stearns argues that such a construction would be applicable to
99% of all firearms in existence. His argument is foreclosed by
this court’s holding in Daugherty, 264 F.3d at 518. Accordingly,
the judgment of the district court is AFFIRMED.
No. 02-20297
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The Government has moved for a summary affirmance in lieu of
filing an appellee's brief. In its motion, the Government asks
that an appellee's brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.