United States v. Lavell Phillips

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 30, 2006
No. 05-17113 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-80090-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAVELL PHILLIPS,
a.k.a. Lavelle Antwon Phillips,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(October 30, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Lavell Phillips appeals his conviction for possession of ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). He contends that,

under the circumstances of this case, there was no substantial nexus to interstate

commerce because he was merely standing in a city parking lot with some bullets

in his pocket. Because such nexus did not exist, the district court should have

granted his motion for judgment of acquittal. He contends, moreover, that the

Government, in proceeding with his prosecution, exceeded Congress’ Commerce

Clause authority because his possession of bullets was not an economic activity

that substantially affected interstate commerce. He cites United States v. Lopez,

514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to support his contention.

We review the constitutionality of statutes de novo. United States v. Scott,

263 F.3d 1270, 1271 (11th Cir. 2001). Pursuant to the Commerce Clause, as

interpreted by Lopez, Congress may permissibly regulate (1) the use of the

channels of interstate commerce; (2) the instrumentalities of interstate commerce,

or persons or things in interstate commerce; and (3) activities with a “substantial

relation to interstate commerce.” Lopez, 514 U.S. at 558-59, 115 S.Ct at 1629-30.

Lopez held that the Gun-Free School Zones Act, which made it a federal offense to

knowingly possess a firearm in a school zone, was an unconstitutional exercise of

Congressional authority because “[t]he act neither regulates a commercial activity

nor contains a requirement that the possession be connected in any way to

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interstate commerce.” Id. at 551, 115 S.Ct. at 1626. The Court found it dispositive

that the act contained “no express jurisdictional element which might limit its reach

to a discrete set of firearm possessions that additionally have an explicit connection

with or effect on interstate commerce.” Id. at 562, 115 S.Ct. at 1626. In United

States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), we upheld § 922(g)(1)

against a constitutional challenge based on the reasoning in Lopez. Section

922(g)(1) provides:

It shall be unlawful for any person–(1) who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one year . . . 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.

18 U.S.C. § 922(g). We held that the statute had a jurisdiction element, so it was

facially valid, and that McAllister’s as applied challenge failed “[b]ecause the

government demonstrated that the firearm possessed by McAllister previously

traveled in interstate commerce.” McAllister, 77 F.3d at 390. In finding this

statute facially constitutional, we reasoned that, unlike the Gun-Free School Zones

Act at issue in Lopez, the felon-in-possession statute has an express jurisdictional

element, which would “ensure” that the firearm possession in question affects

interstate commerce. Id. at 389-90 n. 4. We have also held that nothing in

Supreme Court precedent decided after Lopez “alters the reasoning upon which

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McAllister is moored.” See Scott, 263 F.3d at 1273-74.

McAllister remains good law, as it has not been overruled or called into

question by subsequent Supreme Court decisions. We therefore reject as meritless

Phillips’s Commerce Clause challenge.

Next, Phillips contends that the district court erred in overruling his

objections to this circuit’s pattern jury instruction regarding interstate commerce,

and by advising the jury that all that was necessary to sustain the interstate

commerce aspect of the charged offense was proof that the ammunition had once

moved in interstate commerce. He says that the instruction given to the jury

constituted a judgment of guilt on one element of the offense that the Government

was required to prove in accordance with Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

We perform a de novo review of jury instructions when the objecting party

claims that prejudice was caused by instructions that either misstated the law or

misled the jury. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). In

determining whether the given instructions reflected the law accurately, we afford

the district court wide discretion as to the style and wording employed in the

instructions. Id. We review jury instructions to determine whether the court’s

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charge, “considered as a whole, sufficiently instructs the jury so that the jurors

understand the issues involved and are not misled.” United States v. Shores, 966

F.2d 1383, 1386 (11th Cir. 1992).

To prove a violation of § 922(g)(1), the government must prove, beyond a

reasonable doubt, that (1) the defendant was a convicted felon who (2) knowingly

possessed a firearm, and (3) the firearm was in or affecting interstate commerce.

United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).

Phillips’s jury instruction challenge is meritless because the district court

correctly stated the law. The court instructed the jury that, to convict Phillips, they

had to find, beyond a reasonable doubt, that he was a convicted felon who

“knowingly possessed any ammunition in or affecting interstate commerce.” The

court further advised the jury that “interstate commerce” included movement of

ammunition from one state to another, and that Phillips need not have known of the

movement of ammunition in interstate commerce. This instruction was an accurate

statement of the law. Moreover, Phillips’s claim that the instruction violated

Apprendi and Blakely is meritless because he stipulated that the element requiring

a nexus to interstate commerce had been satisfied, so the jury did not have to find

this fact. The pattern jury instruction was a correct statement of the law, and the

district court properly advised the jury so that they understood the issues involved.

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For the foregoing reasons, Phillip’s conviction is

AFFIRMED.

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