United States v. William Andrew Scott

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 28, 2001
THOMAS K. KAHN
No. 01-10161 CLERK
Non-Argument Calendar
________________________

D. C. Docket No. 99-00543-CR-CC-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM ANDREW SCOTT,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 28, 2001)

Before ANDERSON, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 William Andrew Scott appeals his conviction for possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1)1. Scott raises only one

issue on appeal. He argues that the felony-in-possession statute is an invalid

exercise of Congress' Commerce Clause power because possession of a firearm by

a convicted felon is not conduct which has a substantial impact on interstate

commerce. In support of his position, he relies on United States v. Lopez, 514

U.S. 549, 115 S. Ct. 1624 (1995), Jones v. United States, 529 U.S. 848, 120

S. Ct. 1904 (2000), and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740

(2000). For the reasons stated below, we reject his constitutional challenge and

affirm his conviction under 18 U.S.C. § 922(g)(1).

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

Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). The Commerce Clause of the

United States Constitution states in pertinent part: "The Congress shall have the

power . . . [t]o regulate Commerce with foreign Nations, and among the several

states." U.S. Const. art. 1, § 8.

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18 U.S.C. § 922(g)(1) provides, in pertinent part:

(g) It shall be unlawful for any person –
(1) who has been convicted in any court of a crime p8unishable 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.

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 Under the framework established by United States v. Lopez, Congress

permissibly may regulate three broad categories of activity under the Commerce

Clause. First, Congress may regulate the use of the channels of interstate

commerce. Lopez, 514 U.S. at 558, 115 S. Ct. at 1629. Second, the Commerce

Clause empowers Congress to regulate and protect the instrumentalities of

interstate commerce, or persons or things in interstate commerce, even if the threat

may derive only from intrastate activities. See id., 115 S. Ct. at 1629. Lastly,

Congress’ commerce power includes the authority to regulate activities with a

“substantial relation to interstate commerce.” Id. at 558-59, 115 S. Ct. at 1629-30.

When Lopez was convicted of violating the Gun-Free School Zones Act, 18

U.S.C. § 922(q), the Supreme Court reversed his conviction and invalidated the

statute, reasoning that § 922(q) was an invalid exercise of Congress’ Commerce

Clause power. Lopez identified at least three considerations in analyzing 922(q).

First, the Court found that “[w]here economic activity substantially affects

interstate commerce, legislation regulating that activity will be sustained.” Id. at

560, 115 S. Ct. at 1630. Because § 922(q) was “a criminal statute that by its terms

ha[d] nothing to do with ‘commerce’ or any sort of economic enterprise, however

broadly one might define those terms,” the Court found that the statute could not

be sustained as a regulation of activities which, viewed in the aggregate, have a

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substantial affect on interstate commerce. Lopez, 514 U.S. at 561, 115 S. Ct. at

1630-31. Second, the Court found it dispositive that § 992(q) 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 1631. Third, the Lopez Court cited

its concern that neither § 922(q) “‘ nor its legislative history contain[s] express

congressional findings regarding the effects upon interstate commerce of gun

possession in a school zone.” Id., 115 S. Ct. at 1631. Based on these three

deficiencies pertaining to § 922(q), the Supreme Court invalidated the statute as an

unconstitutional exercise of Congress’ commerce power.

In United States v. McAllister, 77 F.3d 549 (11th Cir. 1996), we examined,

and rejected, the argument that, under Lopez’s reasoning, § 922(g)(1) also exceeds

Congress’ Commerce Clause power. We reasoned that, unlike the Gun Free

School Zones Act, 18 U.S.C. § 922(q), at issue in Lopez, the felon-in-possession

statute has an express jurisdictional element, see id. at 389-90, and is an explicit

“regulat[ion of] guns that have a connection to interstate commerce.” Indeed,

section 922(g)(1) states:

It shall be unlawful for any person -- (1) who has been convicted in
any court, of a crime 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

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 ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate commerce or foreign commerce.

18 U.S.C. § 922(g)(1). Because § 922(g)(1) makes it a crime for a felon to

“possess in or affecting commerce, any firearm or ammunition,” we held that this

"jurisdictional element defeats [a] facial challenge to the constitutionality of §

922(g)(1)." McAllister, 77 F.3d at 390.

Likewise, we rejected McAllister’s argument that § 922(g)(1) was invalid, as

applied to him, because the government did not demonstrate how his purely

intrastate possession of a firearm affected interstate commerce. We reasoned that

because § 922(g) explicitly applies to guns that have a connection to interstate

commerce, and the government demonstrated that the firearm at issue in

McAllister had traveled in interstate commerce, the statute was not

unconstitutional, as applied to him. See id. at 390.

Scott argues that McAllister has been abrogated by the Supreme Court's

recent decisions in Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904 (2000),

and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000). He argues

that Jones and Morrison establish that Congress may only regulate activities with a

substantial effect on interstate commerce. We find his argument unpersuasive, as

nothing in Morrison or Jones alters the reasoning upon which McAllister is

moored.

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 In United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, former

university students brought suit under the Violence Against Women Act, 42 U.S.C.

§ 13981, which states that “[a]ll persons within the United States shall have the

right to be free from crimes of violence motivated by gender.” See 42 U.S.C. §

13981(b). The defendant-university claimed that § 13981 exceeded Congress’

Commerce Clause power, the district court agreed and dismissed the suit, the

Fourth Circuit affirmed, and the Supreme Court granted certiorari.

In the Morrison decision, the Supreme Court reiterated the three broad

categories of activity that Congress permissibly may regulate under the Commerce

Clause, but concluded that, just as with § 922(q) at issue in Lopez, only the third

category – Congress’ power to regulate activities that substantially affect interstate

commerce – could sustain the Violence Against Women Act. Id. at 609, 120 S. Ct.

at 1749. The Court found that “[l]ike the Gun-Free School Zones Act at issue in

Lopez, § 13981 contains no jurisdictional element establishing that the federal

cause of action is in pursuance of Congress’ power to regulate interstate

commerce.” Id. at 612, 120 S. Ct. at 1751. While § 13981 was accompanied by

“numerous findings regarding the serious impact that gender-motivated violence

has on victims and their families,” the Court found these findings insufficient to

establish that the regulated activity substantially affected interstate commerce. See

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id. at 614, 120 S. Ct. at 1752. Instead, the Court explained that “[w]hether

particular operations affect interstate commerce sufficiently to come under the

constitutional power of Congress to regulate them is ultimately a judicial rather than

a legislative question, and can be settled finally only by th[e] Court.” Id., 120 S. Ct.

at 1752. Finding that § 13891 was not directed at the regulation and punishment of

“intrastate violence that is not directed at the instrumentalities, channels, or goods

involved in interstate commerce,” Morrison struck down the statute as an

unconstitutional exercise of Congress’ Commerce Clause power.

Morrison does not alter our analysis in McAllister. As we noted in

McAllister, the jurisdictional element of the statute, i.e., the requirement that the

felon “possess in or affecting commerce, any firearm or ammunition,” immunizes §

922(g)(1) from Scott’s facial constitutional attack. In McAllister, we relied on the

jurisdictional element of § 922(g) to sustain the statute under Lopez. Morrison does

not compel us to reach a different conclusion.

Similarly, Jones does not alter McAllister or otherwise invalidate § 922(g).

In Jones, the Supreme Court concluded that the federal arson statute, 18 U.S.C. §

844(i), did not reach arson of an owner-occupied residence that is not used for any

commercial purpose because such property could not be said to be “used in . . . any

activity affecting commerce,” as required by the statute. Jones, 529 U.S. at 859,

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120 S. Ct. at 1912. The holding of Jones was an issue of statutory construction,

which was buttressed by the long-standing principle that constitutional dilemmas

must be avoided, where possible. See id. at 858, 120 S. Ct. at 1911. The Court

recognized that under the Lopez rubric, a constitutional question would arise by

“read[ing] § 844(i) to render the ‘traditionally local criminal conduct,’ in which

petitioner Jones engaged ‘a matter for federal enforcement.’” Id., 120 S. Ct. at 1912.

In order to avoid this constitutional problem, the Court refused to read § 844(i) to

encompass the crime of arson of a owner-occupied personal residence. Jones

purely statutory holding likewise does not alter McAllister.

Neither Morrison nor Jones modifies our decision in McAllister, upholding

the felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g), under Congress’

Commerce Clause power. This conclusion is consistent with that of each court of

appeals that has examined the constitutionality of § 922(g) after Jones and

Morrison. See, e.g., United States v. Stuckey, __ F.3d __, 2001 WL 754752 (8th

Cir. 2001); United States v. Santiago, 238 F.3d 213, 216-17 (2d Cir. 2001) (per

curiam); United States v. Dorris, 236 F.3d 582, 585-86 (10th Cir. 2000); United

States v. Napier, 233 F.3d 394, 399-402 (6th Cir. 2000); United States v. Wesela,

223 F.3d 656, 659-60 (7th Cir. 2000). For these reasons, we reaffirm McAllister’s

holding that as long as the weapon in question has a “minimal nexus” to interstate

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commerce, § 922(g)(1) is constitutional. See McAllister, 77 F.3d at 390.

To effectuate a constitutional conviction under § 922(g)(1), McAllister

requires the government to demonstrate that the firearm possessed traveled in

interstate commerce. See id.; see also United States v. Reynolds, 215 F.3d 1210,

1215 (11th Cir. 2000) (per curiam); United States v. Cunningham, 161 F.3d 1343,

1344 (11th Cir. 1998). Here, the interstate nexus was demonstrated by the

government when Special Agent Steve Kosch with the Bureau of Alcohol, Tobacco

and Firearms testified that the .25 caliber Raven Arms semiautomatic pistol that

Scott possessed was manufactured in California and had moved in interstate

commerce to Georgia where Scott was caught with the weapon. Such evidence is

sufficient to demonstrate the required nexus to interstate commerce. Accordingly,

to the extent Scott raises an as applied challenge to § 922(g)(1), we reject this

argument as well.

For the foregoing reasons, we

AFFIRM.

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