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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14551
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00273-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS PORTER,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 3, 2019)
Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Thomas Porter appeals his conviction for possessing a firearm after a felony
conviction in violation of 18 U.S.C. § 922(g)(1). He argues that § 922(g)(1) is
unconstitutional, facially and as applied, because it exceeds Congress’s power
under the Commerce Clause. See U.S. Const. art. I., § 8, cl. 3. Porter
acknowledges that this argument is currently foreclosed by this Circuit’s precedent
but preserves it for further review. Because Porter’s argument is foreclosed by
precedent, we affirm his conviction.
I. BACKGROUND
A federal grand jury indicted Porter for possessing a firearm after a felony
conviction in violation of 18 U.S.C. § 922(g)(1). Porter and the government jointly
moved for a bench trial on stipulated facts. The parties stipulated that Florida law
enforcement discovered a firearm on Porter’s person during a search of his home
performed under the terms of his probation. The parties also stipulated that: (1)
Porter, having been previously convicted of felonies punishable by imprisonment
for more than one year, knowingly possessed a firearm; and (2) the firearm was
manufactured in Austria and therefore had traveled in foreign commerce. The
district court found Porter guilty, and the instant appeal followed.
II. STANDARD OF REVIEW
Generally, we review de novo constitutional challenges to statutes. United
States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, we review Porter’s
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constitutional challenge to § 922(g) for plain error because he raises it for the first
time on appeal. Id. “Plain error occurs if (1) there was error, (2) that was plain,
(3) that affected the defendant’s substantial rights, and (4) that seriously affected
the “fairness, integrity, or public reputation of judicial proceedings.” Id. Under
the prior precedent rule, we must “follow a prior binding precedent unless and until
it is overruled by this court en banc or by the Supreme Court.” United States v.
Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (internal quotation marks
omitted).
III. DISCUSSION
Porter argues that § 922(g)(1) is facially unconstitutional because it exceeds
Congress’s authority under the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3.
As pertinent here, Congress’s commerce power applies to activities that
substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 559
(1995). This Court has held that § 922(g) is constitutional where the government
proves a “minimal nexus” to interstate commerce, which it may do by
demonstrating that the firearm traveled in interstate commerce. Wright, 607 F.3d
at 716. Porter argues that Wright’s “minimal nexus” standard is unconstitutional
because it is well below Lopez’s “substantially affect[s]” standard. Id.; Lopez, 514
U.S. at 559. Porter also argues that § 922(g)(1) was unconstitutional as applied to
him because the district court did not find that his offense substantially affected
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interstate commerce. Porter did not admit that his offense substantially affected
interstate commerce, and the government provided no evidence beyond the
stipulated facts.
We find no error, much less plain error, in this case because this Court has
repeatedly upheld § 922(g)(1) as a constitutional exercise of Congress’s Commerce
Clause power. See Wright, 607 F.3d at 716 (citing United States v. Nichols, 124
F.3d 1265 (11th Cir. 1997), and United States v. McAllister, 77 F.3d 387 (11th Cir.
1996)). Porter acknowledges this precedent and maintains the argument for
purposes of further review. Under the prior precedent rule, Porter’s constitutional
argument fails. Vega-Castillo, 540 F.3d at 1236.1 And the district court did not err
in finding a minimal nexus between the firearm and interstate commerce because
the parties stipulated that the firearm was made in Austria and was recovered in
Florida. Wright, 607 F.3d at 716.
IV. CONCLUSION
For the foregoing reasons, we affirm Porter’s conviction.
AFFIRMED.
1
Porter also argued in his opening brief that the indictment improperly omitted a critical
element of the offense—that Porter knew he was a convicted felon at the time of the possession.
He expressly abandoned this argument in his reply brief, however, stating that he “is no longer
pursuing [this argument] for purposes of his direct appeal.” Reply Br. of Appellant at 5.
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