United States v. Myron Dupree

                                                                                     PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            JULY 25, 2001
                                                                         THOMAS K. KAHN
                                                                              CLERK
                                        No. 00-10819


                         D. C. Docket No. 99-00250-CR-CC-1-1




UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

       versus

MYRON DUPREE,
a.k.a. Sidney Dupree,


                                                                        Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Northern District of Georgia

                                       (July 25, 2001)

Before BIRCH, WILSON and FARRIS*, Circuit Judges.
_____________________
*Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:

      In this opinion, we decide whether United States v. Morrison, 529 U.S. 598,

120 S. Ct. 1740 (2000) overrules our opinion in United States v. McAllister, 77

F.3d 387 (11th Cir. 1996), which held that 18 U.S.C. § 922(g) does not violate the

Commerce Clause. We hold that Morrison does not change the holding in

McAllister and that § 922(g) is a constitutional exercise of Congress’s commerce

power.

                                I. BACKGROUND

      Myron Dupree was arrested in Georgia after yelling obscenities to and

pointing a gun at a security officer who asked him to move his car, which was

illegally parked. He was found guilty at a jury trial of being a convicted felon in

possession of a firearm, in violation of § 922(g)(1). During the trial, the

government offered evidence that the gun in Dupree’s possession when he was

arrested was manufactured in California. Dupree moved for a directed verdict on

the ground that the government failed to prove a substantial effect on commerce

sufficient to satisfy the interstate commerce element of § 922(g). The district court

denied the motion. At sentencing, the district court considered Dupree’s criminal

record and sentenced him to 188 months of imprisonment because he was an armed




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career criminal. He appeals on the grounds that § 922(g) is unconstitutional on its

face and as applied to his case.

                                   II. DISCUSSION

      Because Dupree raises this constitutional challenge for the first time on

appeal, it is within our discretion to either address his arguments or consider them

waived. McAllister, 77 F.3d at 389. We choose to address his claims, and “review

[the] constitutional challenge to section 922(g)[] as a question of law, de novo.”

United States v. Cunningham, 161 F.3d 1343, 1345 (11th Cir. 1998).

      We addressed the constitutionality of § 922(g) in McAllister. McAllister

purchased a gun in Georgia that was manufactured in California and shipped

through South Carolina to Georgia. McAllister relied on United States v. Lopez,

514 U.S. 549, 115 S. Ct. 1624 (1995), to challenge § 922(g), claiming that mere

possession of a firearm does not substantially affect interstate commerce and that,

in passing that statute, Congress exceeded its authority under the Commerce

Clause. We denied his appeal because § 922(g) criminalizes possession of a

firearm “in or affecting commerce.” 18 U.S.C. § 922(g); McAllister, 77 F.3d at

390. In Lopez, on the other hand, the Supreme Court relied on the fact that the

Gun Free Schools Act “by its terms ha[d] nothing to do with ‘commerce’ or any

sort of economic enterprise, however broadly one might define those terms.”


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Lopez, 514 U.S. at 561, 115 S. Ct. at 1630-31. We distinguished Lopez from

McAllister because the statute at issue in Lopez was “not an essential part of a

larger regulation of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.” McAllister, 77 F.3d at 390

(quoting Lopez, 514 U.S. at 561, 115 S. Ct. at 1631). “In contrast . . ., § 922(g) is

an attempt to regulate guns that have a connection to interstate commerce; the

statute explicitly requires such a connection. When viewed in the aggregate, a law

prohibiting the possession of a gun by a felon stems the flow of guns in interstate

commerce to criminals.” McAllister, 77 F.3d at 390. It is this jurisdictional

element to § 922(g) that distinguishes it from the Gun Free Schools Act and,

accordingly, the holding in Lopez.

      Dupree claims that Morrison overturns McAllister because it suggests that

our interpretation of Lopez takes into consideration only part of the basis for the

Supreme Court’s decision. We decline to interpret Morrison in this way. In

Morrison, the Supreme Court struck down the Violence Against Women Act

because gender-motivated crimes against women did not involve an economic

activity and the Act did not contain any jurisdictional element that established that

the federal cause of action was pursuant to the Commerce Clause. 529 U.S. at 613,

120 S. Ct. at 1751. Section 922(g), on the other hand, specifically contains this


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jurisdictional element, as it is applicable only to firearms “in or affecting

commerce.” Even after Morrison, McAllister remains the law of this circuit.1

        Dupree also argues that, because there was undisputed evidence that he did

not purchase the gun, his possession of the firearm cannot be said to have affected

interstate commerce. However, § 922(g) requires only a minimal nexus to

interstate commerce, McAllister, 77 F.3d at 390, and by brandishing a firearm that

was manufactured in California and found in his car, Dupree’s actions satisfy this

test.

                                      III. CONCLUSION

        Our holding in McAllister that the jurisdictional element of § 922(g) brings

it within the commerce powers of the Congress is not overruled by Morrison.

Accordingly, Dupree’s conviction is AFFIRMED.




        1
         In upholding the constitutionality of § 922(g), we join the majority of the circuits that have
considered the issue. See United States v. Stuckey, __ F.3d __ (8th Cir. July 6, 2001); United States
v. Gallimore, 247 F.3d 134 (4th Cir. 2001); United States v. Santiago, 238 F.3d 213 (2nd Cir. 2001)
(per curiam), cert. denied, __ U.S. __, 121 S. Ct. 2016 (2001); United States v. Dorris, 236 F.3d 582
(10th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1635 (2001); United States v. Napier, 233 F.3d
394 (6th Cir. 2000); United States v. Jones, 231 F.3d 508 (9th Cir. 2000); United States v. Wesela,
223 F.3d 656 (7th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1145 (2001).

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