United States Court of Appeals,
Fifth Circuit.
No. 95-50861
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kevin Glenn RAWLS, Defendant-Appellant.
June 17, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Kenneth Glenn Rawls is a federal prisoner
serving a sentence imposed following conviction by a jury for
possession of a firearm by a previously convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (count one), and
acquisition of a firearm by knowingly making a false written
statement, in violation of § 922(a)(6) (count two). Seeking relief
through 28 U.S.C. § 2255, Rawls filed a motion to vacate, set
aside, or correct his sentence, which motion was denied by the
district court. For the reasons set forth below, we affirm.
I
FACTS AND PROCEEDINGS
When Rawls was convicted on counts one and two, the government
sought an enhanced sentence under 18 U.S.C. § 924(e)(1), on the
basis of Rawls' two burglary convictions grounded in different
occurrences on the same date, and a conviction for robbery
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committed three years thereafter. As a result, Rawls was sentenced
to an enhanced sentence totaling 188 months of imprisonment, a
total period of supervised release of five years, a $1500 fine, and
a $100 special assessment. In his unsuccessful direct appeal to
this court, Rawls argued that (1) the district court abused its
discretion in admitting purported hearsay testimony during the
trial; (2) the evidence was insufficient to prove that he
knowingly made a false statement in connection with his acquisition
of the firearm; (3) his constitutional rights were violated by the
court's use of the preponderance-of-the-evidence standard for the
government's burden of proof for enhancement of his sentence under
§ 924(e)(1); and (4) the enhancement under that section was
improper because the two burglaries, committed on the same date,
could not be deemed "separate occurrences."
In his § 2255 motion, Rawls insists that § 922(g)(1) is
unconstitutional for exceeding the authority of Congress under the
Commerce Clause, and is unconstitutional as applied to him under
the facts of this case. He also urges that he had ineffective
assistance of counsel and that he should receive a three level
downward adjustment for acceptance of responsibility. For good
measure, Rawls urges that his two prior burglary offenses should
have been counted as only one offense under the authority of
U.S.S.G. § 4A1.2, that pre-indictment delay violated his due
process rights, and that his Fourth Amendment rights were violated.
The district court denied the § 2255 motion and this appeal ensued.
II
2
ANALYSIS
Relying in large part on United States v. Lopez, --- U.S. ---
-, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Rawls argues that
Congress exceeded its authority to regulate commerce when it
enacted § 922(g)(1). That section, however, has been held to be
constitutional under the Commerce Clause. United States v.
Wallace, 889 F.2d 580, 583 (5th Cir.1989), cert. denied, 497 U.S.
1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In Lopez, the
Supreme Court affirmed our holding that 18 U.S.C. § 922(q), which
purported to criminalize possession of a firearm within a specified
proximity to a school, exceeded the power of Congress to legislate
under the Commerce Clause because "[t]he possession of a gun in a
local school zone is in no sense an economic activity that might,
through repetition elsewhere, substantially affect any sort of
interstate commerce." Lopez, --- U.S. at ----, ----, 115 S.Ct. at
1626, 1634. Central to the Court's holding in Lopez was the fact
that § 922(q) contained "no jurisdictional element which would
ensure, through a case-by-case inquiry, that the firearm possession
in question affects interstate commerce." Id. at ----, 115 S.Ct.
at 1631.
We have not, since Lopez, considered its effect on the
constitutionality of § 922(g)(1).1 Other circuits addressing the
issue since Lopez have concluded that the Court's reasons for
1
In United States v. Segeada, No. 95-40430, 74 F.3d 1237
(5th Cir. Nov. 30, 1995) (unpublished), we held, without
discussion, that the defendant's assertion that § 922(g)(1) was
unconstitutional did not constitute reversible error.
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holding § 922(q) unconstitutional are inapplicable to § 922(g)(1).
See United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995);
United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United
States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995), cert. denied,
--- U.S. ----, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United
States v. Hanna, 55 F.3d 1456, 1462 & n. 2 (9th Cir.1995); United
States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied,
--- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United
States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied,
--- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Today we
join all other circuits that have considered the issue post-Lopez
and hold that neither the holding in Lopez nor the reasons given
therefor constitutionally invalidate § 922(g)(1).
Rawls also argues that § 922(g)(1) is unconstitutional as
applied to him. More specifically, he points out that when he was
arrested no interstate activity was occurring. He contends that,
as such, he was not involved in an enterprise engaged in interstate
or foreign commerce, so his possession of the firearm "had no
connection to channels or instrumentalities of interstate
commerce." This argument too is unavailing.
Section 922(g)(1) makes it unlawful for a person who has been
convicted of a felony "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."
The "in or affecting commerce" element can be satisfied if the
4
firearm possessed by a convicted felon had previously traveled in
interstate commerce. United States v. Fitzhugh, 984 F.2d 143, 146,
cert. denied, --- U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993)
("[A] convicted felon's possession of a firearm having a past
connection to interstate commerce violates § 922(g).");
Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963,
1969, 52 L.Ed.2d 582 (1977) (concluding that Congress did not
intend to require any more than the minimal nexus that, at some
time, the firearm had been in interstate commerce). As we noted on
direct appeal, an ATF weapons expert testified at Rawls' trial that
the revolver he possessed was manufactured in Massachusetts, so
that the revolver's presence in Texas had to result from transport
in interstate commerce. This evidence is sufficient to establish
a past connection between the firearm and interstate commerce. See
Fitzhugh, 984 F.2d at 146. We hold that § 922(g)(1) is not
unconstitutional as applied to Rawls.
As for the other issues urged by Rawls in this appeal, it
suffices that we have reviewed the record and considered the legal
arguments raised by the parties in their briefs to this court, and
are satisfied that no reversible error has been committed, and that
Rawls is entitled to no relief, in connection with his claims
regarding the counting of prior crimes and ineffective assistance
of counsel. The remaining claims asserted by Rawls in his § 2255
motion have not been raised on appeal and are thus deemed
abandoned. Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.),
cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
5
For the foregoing reasons, the rulings of the district court
culminating in the denial of Rawls' § 2255 motion are, in all
respects,
AFFIRMED.
GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA,
Circuit Judges, join, specially concurring:
I concur, with these added observations.1 If the matter were
res nova, one might well wonder how it could rationally be
concluded that mere possession of a firearm in any meaningful way
concerns interstate commerce simply because the firearm had,
perhaps decades previously before the charged possessor was even
born, fortuitously traveled in interstate commerce. It is also
difficult to understand how a statute construed never to require
any but such a per se nexus could "ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate
commerce." United States v. Lopez, --- U.S. ----, ----, 115 S.Ct.
1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in
Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52
L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g),
requires us to affirm denial of relief here. While Scarborough
addresses only questions of statutory construction, and does not
expressly purport to resolve any constitutional issue, the language
of the opinion and the affirmance of the conviction there carry a
strong enough implication of constitutionality to now bind us, as
an inferior court, on that issue in this essentially
1
As neither party has requested oral argument, this special
concurrence is consistent with summary calendar disposition.
6
indistinguishable case, whether or not the Supreme Court will
ultimately regard it as a controlling holding in that particular
respect.2 Nothing in Lopez expressly purports to question
Scarborough, and indeed it is not even cited in Lopez. Moreover,
section 922(g) at issue here, unlike section 922(q) at issue in
Lopez, does expressly require some nexus to interstate commerce,
thus importantly reflecting that Congress was exercising that
delegated power and not merely functioning as if it were the
legislative authority of a unitary state. Lopez refused to
"convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States" and,
though recognizing that "[t]he broad language" in some of its prior
opinions "has suggested the possibility of additional expansion,"
nevertheless "decline[d] here to proceed any further." Id. at ----
, 115 S.Ct. at 1634. It is not for us to say that following what
seems to be implicit in Scarborough is to proceed "further" down
the road closed by Lopez. In any event, this panel is bound by our
post-Lopez decision in United States v. Segeada, No. 95-40430, 74
F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), holding section
922(g)(1) constitutional.
2
See, for example, the following from Scarborough where the
Court observed: "... we see no indication that Congress intended
to require any more than the minimal nexus that the firearm have
been, at some time, in interstate commerce." Id. at 575, 97
S.Ct. at 1969 (footnote omitted).
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