United States Court of Appeals,
Eleventh Circuit.
No. 97-3419.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ivan Russell CUNNINGHAM, Defendant-Appellant.
Dec. 4, 1998.
Appeal from the United States District Court for the Northern District of Florida. (No. 4:96-Cr-71-
RH), Robert L. Hinkle, Judge.
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.
KRAVITCH, Senior Circuit Judge:
This appeal requires us to decide whether Congress exceeded its authority under the
Commerce Clause when it enacted 18 U.S.C. § 922(g)(8), which renders it unlawful for any person
who is subject to a protective order that prohibits domestic violence to "possess in or affecting
commerce ... any firearm." We hold that section 922(g)(8) is constitutional, and AFFIRM the
defendant's conviction.
I.
On September 16, 1996, a Florida circuit judge, in Florida's Second Judicial Circuit, entered
an "injunction against repeat violence" that enjoined Ivan Russell Cunningham from assaulting or
contacting Debra Gilman. On October 6, 1996, an officer of the Tallahassee Police Department
found a firearm in Cunningham's car. After a federal grand jury indicted Cunningham, he filed a
motion to dismiss the indictment on the ground that section 922(g)(8) was an unconstitutional
exercise of Congress's Commerce Clause authority. The district court denied Cunningham's motion,
and he entered a conditional plea of guilty.
II.
As a condition of his guilty plea, Cunningham reserved the right to appeal only whether
section 922(g)(8) required him to know that his possession of the firearm violated federal law.
Nevertheless, because Cunningham has offered no argument on this issue on appeal, we find that
he has abandoned it. See Cross v. United States, 893 F.2d 1287, 1289 n. 4 (11th Cir.1990). By
virtue of his knowing and voluntary guilty plea,1 Cunningham waived the right to appeal all other
nonjurisdictional challenges to his conviction that arose prior to his plea. See United States v.
Tomeny, 144 F.3d 749, 751 (11th Cir.1998). As a result, we will not address Cunningham's
argument that an "injunction against repeat violence" under Florida law does not qualify as an order
implicating an "intimate partner" as section 922(g)(8)(C) requires. A guilty plea, however, does not
bar an appeal that raises a jurisdictional question. See Tomeny, 144 F.3d at 751. Accordingly, we
now turn to the merits of Cunningham's challenge to section 922(g)(8).
III.
Cunningham contends that Congress exceeded its authority under the Commerce Clause
when it enacted section 922(g)(8), which provides:
It shall be unlawful for any person—
....
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice,
and at which such person had an opportunity to participate;
1
Of course, the rule that a defendant's guilty plea waives all prior nonjurisdictional claims on
appeal depends on the knowing and voluntary nature of the plea. See United States v. Pierre,
120 F.3d 1153, 1156-57 (11th Cir.1997).
2
(B) restrains such person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or person, or
engaging in other conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use
of physical force against such intimate partner or child that would reasonably
be expected to cause bodily injury;
....
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.
Cunningham relies upon the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115
S.Ct. 1624, 131 L.Ed.2d 626 (1995), which held that 18 U.S.C. § 922(q), a related statutory
provision that outlawed the possession of guns in school zones, was an unconstitutional exercise of
Congress's authority to regulate interstate commerce. We review Cunningham's constitutional
challenge to section 922(g)(8) as a question of law, de novo. See United States v. Dascenzo, 152
F.3d 1300, 1301 (11th Cir.1998).
In Lopez, the Court identified "three broad categories of activity that Congress may regulate
under its commerce power," 514 U.S. at 558, 115 S.Ct. at 1629:(1) Congress "may regulate the use
of the channels of interstate commerce," id.; (2) Congress may "regulate and protect the
instrumentalities of interstate commerce, or persons or things in interstate commerce, even though
the threat may come only from intrastate activities," id.; and (3) Congress may "regulate those
activities ... that substantially affect interstate commerce," id. at 558-59, 115 S.Ct. at 1629-30. After
observing that the regulation of the mere intrastate possession of a firearm could not be considered
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regulation of a channel or instrumentality of interstate commerce, the Court reviewed section 922(q)
to determine if it regulated an activity substantially affecting interstate commerce. See id. at 559,
115 S.Ct. at 1630. The Court concluded that section 922(q) "by its terms has nothing to do with
"commerce' or any sort of economic enterprise, however broadly one might define those terms," id.
at 560, 115 S.Ct. at 1630-31, and accordingly decided that intrastate possession of a firearm in a
school zone does not substantially affect interstate commerce, id. at 567, 115 S.Ct. at 1634. In so
concluding, the Court observed that section 922(q) "contains no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession in question affects interstate
commerce." Id. at 561, 115 S.Ct. at 1631; see id. at 562, 115 S.Ct. at 1631 ("Unlike the statute in
[United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), which made it a crime
for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce ... any
firearm'], § 922(q) has 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.").
Unlike the provision invalidated in Lopez, however, section 922(g)(8) contains an explicit
jurisdictional element: Congress limited the proscriptive reach of section 922(g)(8) to possession
of firearms "in or affecting commerce." Although we have "rejected the argument that Lopez
requires Congress to place a jurisdictional element in every statute enacted pursuant to the
Commerce Clause ...," United States v. Wright, 117 F.3d 1265, 1269 (11th Cir.) (emphasis added)
(citing United States v. Olin Corp., 107 F.3d 1506, 1510 (11th Cir.1997)), cert. denied, --- U.S. ----,
118 S.Ct. 584, 139 L.Ed.2d 422 (1997), vacated in part on other grounds, 133 F.3d 1412 (11th
Cir.1998), a statute regulating noneconomic activity necessarily satisfies Lopez if it includes a
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"jurisdictional element which would ensure, through case-by-case inquiry," Lopez, 514 U.S. at 561,
115 S.Ct. at 1631, that the defendant's particular offense affects interstate commerce, see Olin, 107
F.3d at 1509 ("Congress can maintain the constitutionality of its statutes under [the substantial effect
standard] by including in each a "jurisdictional element....' ").
In United States v. McAllister, 77 F.3d 387, 390 (11th Cir.), cert. denied, --- U.S. ----, 117
S.Ct. 262, 136 L.Ed.2d 187 (1996), we upheld against a Commerce Clause challenge 18 U.S.C. §
922(g)(1), which prohibits possession of a firearm by "any person ... who has been convicted in any
court of a crime punishable by imprisonment for a term exceeding one year," precisely because
Congress included in the statute the same jurisdictional element that is at issue in this case. See id.
(" § 922(g) makes it unlawful for a felon to "possess in or affecting commerce[ ] any firearm or
ammunition.' This jurisdictional element defeats McAllister's facial challenge to the
constitutionality of § 922(g)(1).") (internal citation omitted). See also United States v. Nichols, 124
F.3d 1265, 1266 & n. 2 (11th Cir.1997) (applying McAllister and noting that the decision remains
good law) (per curiam), cert. denied, --- U.S. ----, 118 S.Ct. 1096, 140 L.Ed.2d 151 (1998). We
follow McAllister and conclude that the jurisdictional element in section 922(g), which applies to
both section 922(g)(1) and section 922(g)(8), defeats Cunningham's facial challenge to the
constitutionality of section 922(g)(8).
Although our decision resolves a question of first impression in this Circuit, our conclusion
that Congress acted within its authority under the Commerce Clause when it enacted section
922(g)(8) is not unique. Since our decision in McAllister, we have upheld a number of federal
statutes in the face of Commerce Clause challenges by relying on Congress's inclusion of a
jurisdictional element that ensures the requisite nexus with interstate commerce on a case-by-case
5
basis. See, e.g., Belflower v. United States, 129 F.3d 1459, 1461-62 (11th Cir.1997) (upholding 18
U.S.C. § 844(i) against a Lopez challenge and collecting cases rejecting Commerce Clause
challenges to various federal statutes). Moreover, the only other two federal circuits that have
considered the constitutionality of section 922(g)(8) have concluded that it falls within Congress's
Commerce Clause authority because the jurisdictional provision sufficiently limits the section to
cases involving interstate commerce. See United States v. Wilson, 159 F.3d 280 (7th Cir. 1998);
United States v. Pierson, 139 F.3d 501, 503 (5th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 220, ---
L.Ed.2d---- (1998).
Cunningham concedes that the firearm that the Tallahassee Police Department found in his
possession had traveled in interstate commerce. We have held that no more is required to satisfy
the jurisdictional limitations of section 922(g).2 See McAllister, 77 F.3d at 390 (relying on
Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977), for
the proposition that "the interstate nexus requirement for the predecessor statute to § 922(g) was met
once the government demonstrated that the gun had previously travelled in interstate commerce");
see also Wilson, ("[T]he government need only prove "a prior movement of the firearm across state
lines' to satisfy the jurisdictional element [of section 922(g) ] and the Commerce Clause.") (quoting
United States v. Lewis, 100 F.3d 49, 51-52 (7th Cir.1996)); Pierson, 139 F.3d at 503-04 ("[T]he "in
or affecting' commerce element [of section 922(g) ] can be satisfied if the illegally possessed firearm
2
Moreover, in United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir.), cert denied, --- U.S.
----, --- S.Ct. ----, --- L.Ed.2d ---- (1998), we held that a similar as-applied challenge to the
sufficiency of the government's evidence on the connection with commerce was
nonjurisdictional, and that a defendant's guilty plea, therefore, waived the issue on appeal.
6
had previously traveled in interstate commerce.") (citing United States v. Rawls, 85 F.3d 240, 242
(5th Cir.1996), and Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969).
Accordingly, we hold that section 922(g)(8) is a constitutional exercise of Congress's power
under the Commerce Clause and that its application to Cunningham is constitutional as well. We
AFFIRM Cunningham's conviction.
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