[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-14129 APRIL 9, 2003
THOMAS K. KAHN
D. C. Docket No. 02-00033 CR-CG CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DRAPER PRITCHETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Alabama
(April 9, 2003)
Before DUBINA and FAY, Circuit Judges, and DOWD*, District Judge.
DUBINA, Circuit Judge:
___________________________________
*Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio,
sitting by designation.
The question presented in this appeal, which is one of first impression in our
circuit, is whether 18 U.S.C. § 922(j) is constitutional under the Commerce
Clause1 of the United States Constitution. For the reasons that follow, we hold
that § 922(j) is a proper exercise of Congress’s power under the Commerce Clause
and, consequently, affirm.
I. BACKGROUND
In a one-count indictment, a federal grand jury in the Southern District of
Alabama charged Appellant Draper Pritchett (“Pritchett”) with receiving and
possessing a stolen firearm, knowing or having reasonable cause to believe that
the firearm was stolen, in violation of 18 U.S.C. § 922(j). Specifically, the
indictment charged that Pritchett unlawfully possessed a Hi-Point, 9mm caliber
rifle, Model 995 Carbine, serial number B31802, which previously had been
shipped or transported in interstate commerce, and which had been stolen less than
24 hours earlier during a burglary of Larry’s Sporting Goods and Gun Shop in
Mobile, Alabama.
At approximately 4:21 a.m., in response to an alarm, Mobile police officers
were dispatched to Larry’s Sporting Goods and Gun Shop. At approximately 5:07
a.m., the owner of the business arrived. After entering the premises, he discovered
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U.S. Const. art. I, § 8, cl. 3.
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that the store had been burglarized. The burglars stole several firearms, including
the one at issue here.
Later that day, at approximately 7:55 p.m., police officers responded to a
call reporting “shots fired” in the Roger Williams Housing Project, which is also
located in Mobile, Alabama. After arriving at the scene, officers heard five or six
gunshots. The officers ran to the area where the shots were fired and encountered
Pritchett standing about three feet away from the stolen rifle. The officers also
found a magazine clip containing four rounds of 9mm ammunition. A record
check of the recovered firearm revealed that the weapon was one of the firearms
stolen earlier that morning from Larry’s Sporting Goods and Gun Shop.
Initially, Pritchett told conflicting stories about how he came to be in such
close proximity to the stolen firearm. Eventually, however, Pritchett admitted to
Alcohol, Tobacco, and Firearm (“ATF”) agents that he had purchased the gun
knowing that it had been stolen, and had fired it as well.
Pursuant to a written plea agreement, Pritchett entered a conditional plea of
guilty, preserving his right to appeal the constitutionality of 18 U.S.C. § 922(j).
Attached to, and made part of the written plea agreement, was a factual statement
also signed by Pritchett. In essence, Pritchett admitted under oath that he
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unlawfully received and possessed the stolen firearm, which had been shipped and
transported in interstate commerce before it was stolen.
The district court sentenced Pritchett to 12 months imprisonment and a
three-year term of supervised release. He then perfected this appeal.
II. STANDARD OF REVIEW
This court reviews the constitutionality of statutes de novo. United States v.
Scott, 263 F.3d 1270, 1271 (11th Cir. 2001) (citing United States v. Reynolds, 215
F.3d 1210, 1212 (11th Cir. 2000)), cert. denied, 534 U.S. 1166, 122 S. Ct. 1182
(2002).
III. ANALYSIS
The thrust of Pritchett’s argument is that § 922(j) is unconstitutional
because the Commerce Clause requires more than a minimal nexus between the
matter regulated and interstate commerce. Pritchett acknowledges that we held in
United States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001), that a
defendant’s possession of a firearm that had traveled in interstate commerce in the
past was sufficient to satisfy the interstate commerce element of a similar statute,
18 U.S.C. § 922(g)(1), and sufficient to satisfy the requirements of the Commerce
Clause. See also United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996)
(holding, in the wake of United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,
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131 L. Ed. 2d 626 (1995), that § 922(g) does not violate the Commerce Clause).
Moreover, Dupree reaffirmed the holding in McAllister that § 922(g) requires only
a minimal nexus between the matter regulated and interstate commerce. Dupree,
258 F.3d at 1260.
Importantly, the United States Supreme Court addressed the
constitutionality of the predecessor statute to § 922(g) in Scarborough v. United
States, 431 U.S. 563, 575, 97 S. Ct. 1963, 1969, 52 L. Ed. 2d 582 (1977), and held
that the interstate commerce element is met by demonstrating a “minimal nexus”
between the firearm and interstate commerce. Nothing suggests that we should
treat § 922(j) any differently than § 922(g). A minimal nexus with interstate
commerce exists here. Pritchett does not dispute the fact that the firearm in
question was manufactured outside the State of Alabama, and traveled to Alabama
at some point in time before he took possession of it.
Instead, Pritchett argues that the cases of United States v. Lopez, 514 U.S.
549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995); United States v. Morrison, 529
U.S. 589, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000); and Jones v. United States,
529 U.S. 848, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000), somehow render suspect
the holding of McAllister. Pritchett contends that the interstate commerce activity
regulated by the Commerce Clause must now substantially affect interstate
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commerce. We disagree. In fact, we decided McAllister after Lopez and
concluded that “[n]othing in Lopez suggests that the ‘minimal nexus’ test should
be changed.” McAllister, 77 F.3d at 390. Moreover, the Supreme Court’s
decision in Lopez does not apply to § 922(g) because § 922(g) contains a
jurisdictional element absent in the statute invalidated by Lopez. Id. Thus, we
conclude that Lopez does not apply to § 922(j) because it contains the same
jurisdictional element found in § 922(g), and it is missing from the statute at issue
in Lopez.
Section 922(j) states as follows:
(j) It shall be unlawful for any person to receive, possess,
conceal, store, barter, sell, or dispose of any stolen
firearm or stolen ammunition, or pledge or accept as
security for a loan any stolen firearm or stolen
ammunition, which is moving as, which is a part of,
which constitutes, or which has been shipped or
transported in, interstate or foreign commerce, either
before or after it was stolen, knowing or having
reasonable cause to believe that the firearm or
ammunition was stolen.
18 U.S.C. § 922(j) (emphasis added).
Two circuits have considered the identical question at issue in the present
case and have specifically held that § 922(j) is a proper exercise of Congress’s
power under the Commerce Clause. United States v. Sykes, 12 Fed. Appx. 446,
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448 (8th Cir. 2001) (unpublished decision) (citing United States v. Kocourek, 116
F.3d 481 (8th Cir. 1997)); United States v. Luna, 165 F.3d 316, 319 (5th Cir.
1999). In Luna, the Fifth Circuit reasoned that § 922(j) “contains language
virtually identical to that of §§ 922(g)(1) and (g)(8), related provisions in the
federal firearms statute that we have held constitutional in the face of post-Lopez
Commerce Clause challenges.” 165 F.3d at 320. We agree with and adopt the
reasoning of our sister circuits in Sykes, Kocourek, and Luna.
In this case, the government showed that the stolen firearm possessed by
Pritchett traveled in interstate commerce at some point in the past. Thereby, the
government established at least a minimal nexus with interstate commerce
sufficient to permit the indictment and conviction under 18 U.S.C. § 922(j) to
stand. Accordingly, we affirm Pritchett’s conviction.
AFFIRMED.
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