UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2006*
Decided November 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3887
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 03 CR 935
SERGIO DIAZ,
Defendant-Appellant. Amy J. St. Eve,
Judge.
ORDER
Sergio Diaz was convicted of being a felon in possession of a firearm under
18 U.S.C. § 922(g)(1), which he argues is unconstitutional. He first made this
argument when he moved to dismiss his indictment, asserting that the statute is
unconstitutional under the commerce clause because it criminalizes the possession
of firearms that do not substantially affect interstate commerce. See United States
*
After examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Counsel concedes that he raises his argument here only
to preserve it for review by the Supreme Court. Thus, the appeal is submitted on
the briefs and the record. Fed. R. App. P. 34(a)(2).
No. 05-3887 Page 2
v. Lopez, 514 U.S. 549 (1995). The district court denied Diaz’s motion without
explanation.
A jury subsequently found Diaz guilty. Afterward, Diaz moved for acquittal
or a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure
renewing, among other things, his arguments from his earlier motion. The district
court denied this motion without explanation.
On appeal, Diaz reiterates his argument that § 922(g)(1) is unconstitutional
on its face because it lacks the required nexus to interstate commerce under Lopez.
Diaz admits that the precedent of this circuit is against him and that he raises the
argument only to preserve it for review by the Supreme Court.
We have consistently rejected Diaz’s argument. See, e.g., United States v.
Van Sach, 458 F.3d 694, 703 (7th Cir. 2006); United States v. Olson, 408 F.3d 366,
372-73 (7th Cir. 2005); United States v. Lemons, 302 F.3d 769, 772-73 (7th Cir.
2002); United States v. Bass, 325 F.3d 847, 849 (7th Cir. 2003). If Lopez does
invalidate § 922(g)(1), it is for the Supreme Court to so hold. Lemons, 302 F.3d at
773.
AFFIRMED