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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