IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-50712
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ALAN KUBAN,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court
for the Western District of Texas
________________________________________________
August 29, 1996
Before REAVLEY, GARWOOD and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Gregory Kuban (Kuban), a convicted felon,
pleaded guilty to a charge of knowingly possessing firearms that
had been shipped or transported in interstate commerce, in
violation of 18 U.S.C. § 922(g)(1). Prior to entering his plea,
Kuban filed a motion to dismiss the indictment, challenging the
constitutionality of section 922(g)(1). Kuban’s plea was
conditioned on his right to appeal the district court’s denial of
this motion to dismiss the indictment. On appeal, Kuban challenges
both the constitutionality of section 922(g)(1) and the district
court’s interpretation and application of the guidelines in
computing his sentence.
Facts and Proceedings Below
On the evening of July 1, 1994, Kuban went searching for his
fourteen-year-old daughter, Jennifer Kuban. During his search, he
came upon a friend of his daughter, sixteen-year-old Kenan Ozen
(Ozen), parked in his car with Justin Neelley (Neelley). Kuban
pulled his car alongside that of Ozen, pointed a 9mm pistol at
Ozen’s head, cocked the hammer and demanded that Ozen tell him the
whereabouts of his daughter. Kuban was acquainted with Ozen as
Ozen had previously worked for him, providing maintenance at
Kuban’s automobile detail and window tinting business. Directing
his litany of threats and questions at Ozen, Kuban apparently left
Neelley alone. Ozen and Neelley accordingly led Kuban to his
daughter.
When they arrived at the residence where Jennifer Kuban was
staying, Ozen and Neelley went inside and told the occupants what
had happened. They locked the door and stayed in the house while
Kuban sat outside in his car, honking his horn and yelling.
Fearing that Kuban would eventually attempt to enter the residence,
the occupants called the police, but Kuban departed before the
police arrived.
After obtaining a warrant for Kuban’s arrest, law enforcement
officers proceeded to Kuban’s residence and observed him get into
his car as if to depart. As five officers ran to Kuban’s car,
Kuban was seen leaning into the passenger area of his vehicle. One
of the officers reported that he then saw a handgun on the front
passenger floor. Kuban was instructed to raise his hands and exit
2
the vehicle; when he refused to do so, Kuban was forcibly removed
from his car and handcuffed. A subsequent investigation of the car
resulted in the recovery of a loaded Browning 9mm pistol
(manufactured in Belgium) from the front passenger seat, a loaded
Ruger Redhawk .41 caliber magnum pistol (manufactured in
Connecticut) from the front passenger floor area, and a small
quantity of marihuana on the passenger seat.1 Kuban was arrested
for aggravated assault with a deadly weapon, possession of a
firearm by a felon2, and possession of marihuana. Kuban made bond
on these state charges and was released.
In Texas state court, Kuban was charged with aggravated
assault with a deadly weapon, in violation of Texas Penal Code §§
22.01(a)(2), 22.02(a)(2), and felon in possession of a firearm, in
violation of Texas Penal Code § 46.04(a)(1). On November 11, 1994,
a federal indictment against Kuban was also returned, charging him
with felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1).
Kuban filed a motion to dismiss the federal indictment,
arguing that section 922(g)(1) is an unconstitutional exercise of
the government’s power to regulate commerce. The district court
1
After impounding Kuban’s vehicle, an inventory of the car
additionally revealed a bag containing seven syringes and two
spoons, a coffee can containing approximately one-half ounce of
marihuana, zigzag rolling papers and several small plastic bags.
2
Kuban had been previously convicted of three felony offenses:
aggravated assault, retaliation, and possession of marihuana in an
aggravated quantity.
3
overruled this motion, and Kuban subsequently entered a conditional
guilty plea, reserving his right to appeal the district court’s
adverse determination of his motion to dismiss.
The presentence investigation report (PSR) recommended: a
four-level increase to Kuban’s base offense level for Kuban’s
“use[] or possess[ion of] any firearm or ammunition in connection
with another felony offense”, pursuant to U.S.S.G. § 2K2.1(b)(5)3;
a two-level “vulnerable victim” increase pursuant to U.S.S.G. §
3A1.1; and a three-level downward departure in recognition of
Kuban’s acceptance of responsibility, pursuant to U.S.S.G. §
3E1.1(a). Kuban objected to the PSR’s recommendations for
increases in offense level, but the district court overruled his
objections and adopted the recommendations. The district court
sentenced Kuban to 108 months imprisonment, a three-year term of
supervised release, a fine of $12,500, and a special assessment of
$50. Kuban appeals.
Discussion
I. Constitutionality of 18 U.S.C. § 922(g)(1)
Kuban’s challenges to the constitutionality of section
922(g)(1) as applied to him have been resolved adversely to his
3
The PSR states that “Mr. Kuban unlawfully possessed two
handguns on July 1, 1994. He used the Browning 9mm automatic to
threaten the life of 16-year-old Kenan Ozen on that date. He was
subsequently charged with Aggravated Assault with a Deadly Weapon
in state district court, as well as Felon in Possession of a
Firearm in violation of Texas state felony statutes. Consequently,
this four-level adjustment is applicable.”
4
contentions by our recent decision in United States v. Rawls, 85
F.3d 240 (5th Cir. 1996), which is binding on this panel.4 See
also United States v. Segeada, No. 95-40430 (5th Cir. Nov. 30,
1995)(unpublished)(upholding constitutionality of section
922(g)(1)). We accordingly reject this claim of error.
II. Application of the Sentencing Guidelines
We review de novo the district court’s “interpretation of the
requirements” of the sentencing guidelines. United States v. Lara-
Velasquez, 919 F.2d 946, 953 (5th Cir. 1990). However, where the
district court has correctly interpreted the relevant guideline
provisions, we review the district court’s application of the
guidelines to the particular facts and circumstances of the case
before it for abuse of discretion. See United States v. Koon, Nos.
94-1664, 94-8842, 1996 WL 315800 (June 13, 1996).
A. “Unusually Vulnerable Victim” Enhancement
The PSR recommended a two-level increase to Kuban’s base
offense level because Kuban knew or should have known that Ozen was
“unusually vulnerable due to age, physical or mental condition, or
that [Ozen] was otherwise particularly susceptible to the criminal
considering defense counsel’s arguments on this point, the district
court concluded that Ozen was unusually vulnerable because of his
age——“unusually vulnerable, because he’s being faced by a fellow
who is, perhaps, bigger, certainly older, more experienced, more
4
As indicating by the concurring opinion in Rawls (joined in
by all judges on that panel), were the matter res nova a powerful
argument could be made for a contrary result; however, this
inferior federal court must regard Scarborough v. United States, 97
S.Ct. 1963 (1977) as barring the way.
5
knowledgeable, more mature, supposedly, as to what he might be able
to do to him or with him.”
Kuban challenges this adjustment on two grounds: First, Kuban
contends that the offense of conviction, felon in possession of a
firearm, is a victimless crime; second, Kuban argues that, even
assuming arguendo that there could be a victim of his offense of
conviction, Ozen was not “unusually vulnerable” within the meaning
of section 3A1.1.
Reviewing Kuban’s first contention de novo, we hold that the
district court did not err by characterizing Ozen as a “victim” of
Kuban’s conduct. In United States v. Roberson, 872 F.2d 597 (5th
Cir.), cert. denied, 110 S.Ct. 175 (1989), this Court held that, in
the present context, “[T]he [Sentencing] Commission has chosen not
to require a nexus between the offense of conviction and the
victim.” Id. at 608. This Court reached this conclusion after
observing that the commentary to section 3A1.1 did not require the
vulnerable victim to be a victim of the offense of conviction:
“[W]hen the Commission has wished to require a link between the
offense of conviction and a factor the court could consider in
sentencing, it has expressly included that requirement in the
Guidelines.” Id. At the time that this Court decided Roberson,
the commentary to section 3A1.1 explained that the vulnerable
victim enhancement “applie[d] to any offense where the victim’s
vulnerability played any part in the defendant’s decision to commit
the offense.” Id. Based on this language, this Court held in
Roberson that the (deceased) individual whose credit card had been
6
used by the defendant after the card owner’s death in order to
commit the charged “credit card fraud”——the offense of
conviction——was a “victim” under section 3A1.1, particularly in that
the decedent “certainly suffered indignity in having his corpse
abused and his good name brought into this whole sordid affair.”
Id. at 609.5 Within this analytical framework, Ozen must be viewed
as a “victim” of Kuban’s conduct, as well. We are bound by
Roberson.6
5
This Court also noted in Roberson that the commentary to
U.S.S.G. § 1B1.3, which addresses “relevant conduct”, clarified
that “conduct that is not formally charged or is not an element of
the offense of conviction may enter into the determination of the
applicable Guideline Sentencing range.” Roberson, at 608-609.
6
In so holding, we recognize that the relevant commentary to
section 3A1.1 has been amended since our decision in Roberson. The
commentary now states: “This adjustment applies to offenses where
an unusually vulnerable victim is made a target of criminal
activity by the defendant.” U.S.S.G. § 3A1.1, comment. (n.1)
(effective November 1, 1989). This Court has not considered the
impact of this amendment on our decision in Roberson. However,
there appears to be little in the language of this amendment that
would justify the conclusion that Roberson is no longer binding.
Furthermore, the Supreme Court opinion advanced by Kuban, Hughey v.
United States, 110 S.Ct. 1979 (1990), is clearly distinguishable.
In Hughey, the Court did conclude that the class of “victims” at
issue in that case would be limited to victims of the offense of
conviction. Id. at 1982-83. In reaching this conclusion, however,
the Court was clearly addressing only the restitution provisions of
the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579-
3580. After considering the statutory language at issue and the
ordinary meaning of the word “restitution”, the Court held that
“restitution as authorized by the statute is intended to compensate
victims only for losses caused by the conduct underlying the
offense of conviction.” Id. at 1982. Kuban’s argument in the
present case draws no really significant, direct support from this
holding. Hughey is simply too far removed from the present issue
to justify the conclusion that this panel is no longer bound by
Roberson. In sum, this panel is simply not free to reexamine
Roberson.
7
Next, Kuban contends that, even if Ozen were a “victim” within
the meaning of section 3A1.1, the district court erred in finding
that Ozen was an “unusually vulnerable” victim. “The determination
of ‘vulnerability is a complex fact dependent upon a number of
characteristics which a trial court could not possibly articulate
completely’ . . .” United States v. Scurlock, 52 F.3d 531, 542
(5th Cir. 1995)(footnote omitted). “Accordingly, we give the
finding of vulnerability due deference.” United States v. Box, 50
F.3d 345, 358-59 (5th Cir.), cert. denied, 116 S.Ct. 309 (1995).
See also Koon v. United States, Nos. 94-1664, 94-8842, 1996 WL
315800 at *11 (June 13, 1996)(recognizing the statutory requirement
“that courts of appeals ‘give due deference to the district court’s
application of the guidelines to the facts’”).7 Additionally, we
accord due deference to the finding of “what the defendant knew or
should have known in this respect.” United States v. Brown, 7 F.3d
1155, 1160 (5th Cir. 1993). Finally, we must determine whether the
district court’s finding of “unusual vulnerab[ility]” was plausible
in light of the record as a whole. See Scurlock, at 542.
In the instant case, the district court concluded that Ozen
was unusually vulnerable because of his age——“unusually vulnerable,
because he’s being faced by a fellow who is, perhaps, bigger,
certainly older, more experienced, more knowledgeable, more mature,
7
The statutory requirement at issue is set forward in 18
U.S.C. § 3742. Before the sentencing guidelines system was
implemented, a federal criminal sentence within the statutory
limits was essentially not reviewable on appeal. Id. Section 3742
was enacted in order to create limited appellate jurisdiction to
review federal sentences. Id. In the above quotation, the Court
was citing the 1988 amendment to section 3742. Id.
8
supposedly, as to what he might be able to do to him or with him.”
Additionally, it was brought to the district court’s attention that
Ozen had previously been employed by Kuban, adding yet another
nuance to the relationship between these two individuals. Although
the issue is indeed a close one, and the concept of vulnerability
has arguably been taken virtually to its outer limits,
nevertheless, in light of all the foregoing circumstances and the
deference due the district court, we ultimately conclude that its
application of section 3A1.1 must stand.
B. Enhancement for Use of Firearm to Commit Felony
Finally, the district court also applied a four-level increase
to Kuban’s base offense level because “the defendant used or
possessed [a] firearm or ammunition in connection with another
felony offense . . .” U.S.S.G. § 2K2.1(b)(5). In this case, the
“[other] felony offense” was aggravated assault with a deadly
weapon, violative of Texas Penal Code §§ 22.01(a)(2), §
22.02(a)(2). The parties correctly agree that the second state
offense with which Kuban was charged, felon in possession of a
firearm, violative of Texas Penal Code § 46.04(a)(1), cannot
constitute the “[other] felony offense” underlying the district
court’s [section 2K2.1(b)(5)] four-level enhancement. However, it
appears that the district court relied on the state aggravated
assault with a deadly weapon charge to increase Kuban’s base
9
offense level pursuant to section 2K2.1(b)(5)8, and, contrary to
Kuban’s protestations, the district court did not err in doing so.
At sentencing, defense counsel objected to the PSR’s
recommendation of section 2K2.1(b)(5) enhancement, arguing
principally that Kuban was being “doubly punished” for his
possession of firearms. Counsel further contended that “the
aggravated assault [] in the state court would not have been an
aggravated assault but for the use of the firearm.” However, when
the district court asked defense counsel whether someone could “be
charged with aggravated assault for some other reason other than
the use of a firearm?”, counsel correctly responded, “Yes, Your
Honor.”9 It is clear that there is no merit to Kuban’s assertion
that he was “doubly punished” for possessing firearms. This
argument misses the critical requirement of section 22.02(a)(2)
that the defendant must use or exhibit a deadly weapon in order for
8
The transcript of Kuban’s September 14, 1995, sentencing
hearing clearly reflects that defense counsel recognized that the
“[other] felony offense” in question was the state charge of
aggravated assault with a deadly weapon, and that the government
and the district court shared this view.
9
Texas Penal Code § 22.02, entitled “Aggravated Assault”,
states:
“(a) A person commits an offense if the person commits
assault as defined in Section 22.01 and the person:
. . . (2) uses or exhibits a deadly weapon during
the commission of the assault.” (emphasis added).
In relevant part, section 22.01, entitled “Assault”, states:
“(a) A person commits an offense if the person:
. . . (2) intentionally or knowingly threatens
another with imminent bodily injury . . .”
10
an assault to rise to the level of an aggravated assault. A
defendant’s mere possession of a deadly weapon during the
commission of an assault would not of itself implicate section
22.02. It is indisputable that Kuban committed his assault on Ozen
by using and/or exhibiting——not merely contemporaneously possessing
(as by carrying concealed in his pocket)——the deadly weapon: the
section 22.02 violation was Kuban’s pointing the weapon at Ozen’s
head at close range and cocking it, while demanding information
from Ozen. Therefore, the district court properly increased
Kuban’s base offense level pursuant to section 2K2.1(b)(5) in the
present case.10
Conclusion
For the foregoing reasons, Kuban’s conviction and sentence are
AFFIRMED.
DeMOSS, Circuit Judge, dissenting in part.
I am unable to concur with the summary disposition which the
majority makes as to Kuban’s challenge to the constitutionality of
§ 922(g)(1) as applied to him, and write to respectfully register
my reasons for this partial dissent.
10
We also note that, by its own terms, section 2K2.1(b)(5)
mandates enhancement when the requisite conditions for application
of that section have been met. The requisite conditions having
been met in the instant case——“the defendant used or possessed [a]
firearm or ammunition in connection with another felony
offense”——the district court had no discretion regarding
application of this enhancement.
11
First, I do not regard the opinion in Scarborough v. United
States, 97 S. Ct. 1963 (1977), as “barring the way” as the majority
notes in footnote 4 above. In Scarborough the Supreme Court
interpreted the language of 18 U.S.C. App. § 1202(a)(1) which fixed
the punishments for a convicted felon “who receives, possesses or
transports in commerce or affecting commerce ... any firearm.” The
writ of certiorari in Scarborough was limited to the question of
whether a conviction under 18 U.S.C. App. § 1202(a) “is sustainable
merely upon a showing that the possessed firearm has previously at
any time however remote traveled in interstate commerce.”
Concluding that the legislative history of § 1202(a) gave no
indication “that Congress intended to require any more than the
minimal nexus that the firearm has been, at some time, in
interstate commerce”, the Supreme Court affirmed the conviction,
but without any real analysis of whether the “minimal nexus” was
constitutionally sufficient.
In 1986, § 1202(a), along with the various congressional
findings which the Court cited in Scarborough as supporting the
“minimal nexus” conclusion, was repealed by Congress.11 The present
statute under which Kuban was indicted reads in relevant portions
as follows:
(g) It shall be unlawful for any person --
11
Firearm Owners’ Protection Act of 1986, Public Law 99-
308; H.R. REP. NO. 495, 99th Cong. 2d Sess., § 4 (1986) (“Title VII
of the Omnibus Crime Control and Safe Streets Act of 1968 [which
enacted § 1202(a)] is repealed.”).
12
(1) who has been convicted in any court
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 ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g).
Applying a common sense reading to § 922(g) and reading the
words and punctuation in the manner which an average citizen would
read it, this subsection creates three separate and distinct
criminal acts as follows:
A. Element A: It shall be unlawful for [a
convicted felon] to ship or transport in
interstate or foreign commerce any firearm or
ammunition;
B. Element B: It shall be unlawful for [a
convicted felon] to possess in or affecting
commerce any firearm or ammunition; or
C. Element C: It shall be unlawful for [a
convicted felon] to receive any firearm or
ammunition which has been shipped or
transported in interstate or foreign commerce.
It seems critically important that we note the clear
differences between the current statute (§ 922(g)(1)) under which
Kuban was indicted and the old statute (18 U.S.C. App. §
1202(a)(1)) which was construed in Scarborough. First, as the
Supreme Court has held, under the old statute the phrase “in
commerce or affecting commerce” applied to each of the three verbs:
13
“receives, possesses or transports”.12 Under the current statute,
however, the phrase “in or affecting commerce” modifies only the
verb “possess” in Element B of the current statute. Next, it is
apparent that the current statute is structurally different from
the statute construed in Scarborough because the phrase “which has
been shipped or transported in interstate or foreign commerce”
modifies only the “firearm or ammunition” which was “received” by
a convicted felon in Element C.
It seems important to note that the current statute (§
922(g)(1)) does not use any words or phrases which refer to or are
a derivative of the phrase used in the question certified on writ
of certiorari in Scarborough: “that the possessed firearm has
previously at any time however remote traveled in interstate
commerce.” (Emphasis added.) Nor are there any words or phrases
in the current statute referring to the holding of the Supreme
Court in Scarborough that the “firearm had been, at some time, in
interstate commerce”. In putting together § 922(g), Congress could
easily have inserted the phrase “at any time” after the words
“shipped or transported” in Element C as it did in § 922(k), and
the absence of any phrase as to the remoteness in time of the
shipment or transportation in interstate commerce leads me to the
conclusion that Congress chose not to rely upon the “minimal nexus”
of Scarborough, but rather crafted § 922(g) to have clear and
unambiguous connections with interstate commerce.
12
United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30
L.Ed.2d 488 (1971).
14
The second reasons why I would not consider that Scarborough
stands in the way of a thorough examination of the constitu-
tionality of § 922(g)(1) in this case is that the precise holding
in Scarborough is in fundamental and irreconcilable conflict with
the rationale of the United States Supreme Court in United States
v. Lopez, 115 S. Ct. 1624 (1995).13 Obviously the precise holding
in Lopez which declared § 922(q) unconstitutional does not auto-
matically determine the issue as to § 922(g)(1). But Lopez has to
be read as more than a case determining the constitutionality of
one of the subsections of § 922. Rather, Lopez is a fundamental
and landmark restatement and redefinition of the powers of Congress
under the Commerce Clause. Whatever may have been the ambiguities
and lack of clarity under prior case law as to whether an activity
must “affect” or “substantially affect” interstate commerce in
order to be within Congress’ power to regulate it under the
Commerce Clause, the Court stated in Lopez that “consistent with
the great weight of our case law ... the proper test requires an
analysis of whether the regulated activities substantially affects
interstate commerce.” Id. at 1630. In my view, this conclusion
means that in regard to Element B of § 922(g)(1) the possession by
13
I, of course, am mindful of the Supreme Court’s warning
in Rodriguezde Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (1989), that “[i]f a precedent of [the Supreme] Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions.”
I, however, do not believe that Scarborough directly controls
because (1) the statute at issue in Scarborough has been repealed
and (2) the Scarborough court did not address the constitutional
issue. Thus, Shearson/American Express does not apply.
15
a convicted felon of a firearm must now “substantially affect
interstate commerce”. Consequently, the “minimal nexus” of
Scarborough can no longer be deemed sufficient under the Lopez
requirement of substantially affecting interstate commerce. The
mere fact that a felon possesses a firearm which was transported in
interstate commerce years before the current possession cannot
rationally be determined to have a “substantial impact on
interstate commerce” as of the time of current possession.
Finally, I would proceed to reach the constitutionality of §
922(g)(1) in this case because the facts are so compellingly local
in nature. The events which ultimately resulted in this federal
indictment started out as a quarrel between a father (Kuban) and
his 14-year-old daughter which deteriorated into a “family
disturbance” (so characterized in the factual stipulation filed by
the United States Attorney and the Presentence Report prepared by
the Probation Department). The events took place in the
residential areas of a small town in Travis County, Texas. When
the witnesses and victims felt the need of police assistance, they
called the sheriff of Travis County and the police department of
the local town. They did not call the FBI, the DEA, the ATF or any
other federal law enforcement agency. Ultimately, the local police
officers found and arrested Kuban and took him into state custody
on various state criminal charges, including the state charge of
being a felon in possession of a gun. All of these events took
place on July 1, 1994. Four months later, the United States Bureau
of Alcohol, Tobacco and Firearms initiated a federal investigation
16
regarding the weapons and Kuban was named as a defendant in a one-
count federal indictment charging him with being a felon in
possession of a firearm. At the time of the issuance of this
federal indictment, Kuban was still in state custody and the United
States Attorney issued an application for writ of habeas corpus ad
prosequendum in order to bring Kuban from custody in the Travis
County jail to arraignment on the federal charges.
The federal indictment charges that Kuban “a person who had
previously been convicted of a crime punishable by imprisonment for
a term exceeding one year, did knowingly possess a firearm that had
been shipped and transported in interstate commerce and affecting
commerce, specifically a Browning 9 mm pistol and a Ruger Red Hawk
.41 Magnum caliber revolver, in violation of Title 18, United
States Code, § 922(g)(1).” The language of the indictment is a
hodgepodge cut-and-paste mixing of the elements of criminal conduct
under § 922(g)(1). The prohibited verb “possess” is out of Element
B; the phrase “that had been shipped and transported in interstate
commerce” is out of Element C, but the word “had” is substituted
for the word “has”, a not insignificant change of the tenses of the
verb. The phrase “and affecting commerce” is out of Element B and
as placed in the indictment language it is impossible to determine
whether this phrase modifies “possess” or “shipped and
transported.” The indictment uses only the prohibited verb
“possess” and does not mention “receives.” The indictment does not
contain any allegation about the conduct “substantially” affecting
commerce.
17
In the factual basis filed by the United States Attorney the
only grounds upon which the government offered to prove that the
conduct involved had anything to do with interstate commerce was
the tender of proof that the firearms involved “had previously
traveled in interstate commerce as the Browning 9 mm semi-automatic
pistol was manufactured in Belgium and the Ruger Red Hawk .41
Magnum revolver was manufactured in Connecticut.” The fact that a
firearm was manufactured originally in Belgium or Connecticut and
is later found in possession of a felon in Texas cannot constitute
proof beyond a reasonable doubt that such firearm was ever “shipped
or transported in interstate commerce” for it is just as plausible
that the firearm was purchased by its original owner where it was
manufactured and brought or carried to Texas by such original owner
as part of his personal property and not as part of any interstate
shipment. The government’s theory might hold water if the statute
prohibited a felon from possessing a firearm in any state different
from the state where the firearm was manufactured; but that’s not
what § 922(g)(1) prohibits. Furthermore, there was no offer of any
proof by the government that Kuban’s possession of the firearm took
place in a channel of commerce or that it involved any facility of
interstate commerce. Likewise, there was no offer of proof of any
kind by the government that Kuban’s possession of the weapons on
July 1, 1994, had any effect whatsoever, much less a substantial
effect, on interstate commerce.
If the government is correct that all it takes to get a
conviction under § 922(g)(1) is to show that a felon possessed a
18
firearm which at some time in past history was shipped in
interstate commerce, then all of the other elements of § 922(g)(1)
are rendered surplusage and meaningless. Lopez reiterates the
warning issued earlier by the Supreme Court in Jones & Laughlin
Steel:
[T]he scope of [the interstate commerce] power must
be considered in the light of our dual system of
government and may not be extended so as to embrace
effects upon interstate commerce so indirect and
remote that to embrace them, in view of our complex
society, would effectually obliterate the
distinction between what is national and what is
local and create a completely centralized govern-
ment.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31 (1937). I
would hold that the “affecting commerce” mantra of Scarborough has
been changed by Lopez’s requirement of a substantial affect on
commerce and Scarborough’s “minimal nexus” can no longer satisfy
Lopez’s requirement that the regulated activity must exert “a
substantial economic affect on interstate commerce.”
For these reasons I would address the constitutional issue and
hold that under the facts of this case there is no substantial
effect on interstate commerce to satisfy the indictment under §
922(g)(1).
19