United States Court of Appeals,
Eleventh Circuit.
No. 95-5433
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Stephen CHISHOLM, a.k.a. Stephenegeno Chisholm, Defendant-
Appellant.
Feb. 18, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 95-60-CR), Donald L. Graham, Judge.
Before BIRCH and CARNES, Circuit Judges, and KRAVITCH*, Senior
Circuit Judge.
PER CURIAM:
Stephen Chisholm moved in the district court for a dismissal
of Count I of his indictment for possession of a firearm by a
felon, 18 U.S.C. § 922(g)(1), on the ground that this statute is an
unconstitutional exercise of Congress's Commerce Clause authority,
and citing the Supreme Court's decision in United States v. Lopez,
--- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). When the
district court denied his motion, Chisholm pleaded guilty. He
raises the Lopez issue again on appeal.
Chisholm recognizes that his argument has been rejected by
this court and every other circuit which has considered the issue.
See United States v. McAllister, 77 F.3d 387, 390 (11th Cir.),
cert. denied, --- U.S. ----, 117 S.Ct. 262, 136 L.Ed.2d 187
*
Judge Kravitch was in regular active service when this
matter was originally submitted but has taken senior status
effective January 1, 1997.
(1996).1 He contends, however, that this court should revisit the
McAllister decision because it conflicts with our decision in
United States v. Denalli, 73 F.3d 328 (11th Cir.), modified, 90
F.3d 444 (1996), and with Lopez itself.
In Denalli, we held that a defendant could not be convicted
under the federal arson statute, 18 U.S.C. § 844(i), without proof
that the private residence2 destroyed "was used in an activity that
had a substantial effect on interstate commerce." 90 F.3d at 444.
We reasoned that Lopez limited Congress's Commerce Clause authority
only to activities that "substantially" affect interstate commerce,
and that Congress could not make it a federal crime to burn private
property with a less than "substantial" connection to interstate
commerce, even though the statute's language does not require a
"substantial" effect.3
1
See also United States v. Wells, 98 F.3d 808 (4th
Cir.1996); United States v. Gateward, 84 F.3d 670, 671-72 (3d
Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 268, 136 L.Ed.2d
192 (1996); United States v. Abernathy, 83 F.3d 17, 20 (1st
Cir.1996); United States v. Spires, 79 F.3d 464, 466 (5th
Cir.1996); United States v. Turner, 77 F.3d 887, 889 (6th
Cir.1996); United States v. Sorrentino, 72 F.3d 294, 296-97 (2d
Cir.1995); United States v. Bell, 70 F.3d 495, 497-98 (7th
Cir.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); 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).
2
We note that Denalli involved a special case: the arson of
a private residence. By contrast, we recently upheld a
conviction under the arson statute for the burning of a
restaurant catering to interstate travelers, where "the requisite
connection to interstate commerce is apparent." United States v.
Utter, 97 F.3d 509, 516 (11th Cir.1996).
3
18 U.S.C. § 844(i) makes illegal the burning of "property
used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce...."
In McAllister, we rejected the defendant's argument that he
could not be convicted under the statute prohibiting felons from
possessing a firearm, 18 U.S.C. § 922(g)(1), without proof that his
possession "substantially" affected interstate commerce. Like
Denalli, McAllister involved a statute that did not require a
"substantial" connection to commerce.4 In McAllister, however, we
ruled that so long as the weapon in question had a "minimal nexus"
to interstate commerce, the Constitution is satisfied. McAllister,
77 F.3d at 389-90.
Chisholm argues that Denalli 's "substantial effect" test and
McAllister 's "minimal nexus" test are in tension. Assuming,
arguendo, that Chisholm is correct, we nonetheless are bound by the
McAllister panel's decision, as Chisholm was convicted under the
exact statute at issue in McAllister, and the opinion remains
binding precedent. See United States v. Adams, 91 F.3d 114, 115
(11th Cir.1996) (applying McAllister ).5
Accordingly, the decision of the district court is AFFIRMED.
4
18 U.S.C. § 922(g) makes it illegal for a felon to "possess
in or affecting commerce, any firearm or ammunition."
5
See United States v. Hutchinson, 75 F.3d 626, 627 (11th
Cir.) (noting that only en banc court may revisit prior panel
decision), cert. denied, --- U.S. ----, 117 S.Ct. 241, 136
L.Ed.2d 170 (1996).