IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40935
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE DWAYNE MCNEAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-01-CR-29-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommie Dwayne McNeal 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). Relying on
the Supreme Court’s decisions in Jones v. United States, 529 U.S.
848 (2000); United States v. Morrison, 529 U.S. 598 (2000); and
United States v. Lopez, 514 U.S. 549 (1995), McNeal argues that
18 U.S.C. § 922(g)(1) is unconstitutional on its face because it
*
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that this opinion should not be published and is not precedent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. 02-40935
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does not require a “substantial” effect on interstate commerce,
as is required for a constitutional exercise of Congress's power
to regulate interstate commerce. In the alternative, McNeal
argues that if 18 U.S.C. § 922(g)(1) is interpreted as implicitly
requiring a “substantial” effect on interstate commerce, his
indictment and the factual basis supporting his guilty plea are
insufficient. McNeal further contends 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. He argues
that such a construction would be applicable to 90% of all
firearms in this country.
McNeal raises his arguments solely to preserve them for
possible Supreme Court review. As he acknowledges, his arguments
are foreclosed by existing Fifth Circuit precedent. See United
States v. Cavazos, 288 F.3d 706, 712 (5th Cir.), cert. denied,
123 S. Ct. 253 (2002); 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). Accordingly, the
judgment of the district court is AFFIRMED.
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.
No. 02-40935
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AFFIRMED; MOTION GRANTED.