Opinion
No. 95-5574.
Argued September 21, 1995.
Decided March 4, 1996.
Hugh B. Ward, Jr. (argued and briefed), Office of the U.S. Atty., Knoxville, TN, for plaintiff-appellee.
Leah J. Prewitt (argued and briefed), Federal Defender Services, Knoxville, TN, for defendant-appellant.
On Appeal from the United States District Court for the Eastern District of Tennessee, James H. Jarvis, Judge.
Defendant William Richard Turner appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §(s) 922(g)(1) (1988). Turner's sole argument is that Section(s) 922(g)(1) violates the Commerce Clause under the standard established by the Supreme Court in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624 (1995). Finding no constitutional violation, we affirm Turner's conviction.
"The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . ." U.S. CONST. art. I, Section(s) 8, cl. 3.
In 1991, Turner was sentenced to five years' probation for making false statements to the United States Veterans Administration. See 18 U.S.C.A. Section(s) 1001 (West Supp. 1995). On December 20, 1993, agents of the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant at Turner's residence and found twenty-two firearms, along with a receipt that indicated that Turner had sold five additional firearms earlier that day. Upon the motion of the United States Probation Office, the district court revoked Turner's probation and sentenced him in July of 1994 to six months' confinement in a half-way house, to be followed by three years of supervised release.
On January 25, 1995, the United States charged Turner with violating 922(g)(1). Turner waived indictment and pleaded guilty to a one-count information that alleged that he, "having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess in and affecting commerce, firearms." On April 13, 1995, the district court once again sentenced Turner to six months' imprisonment and three years of supervised release. Defendant timely appealed.
On appeal, Turner argues that Section(s) 922(g)(1) is unconstitutional under Lopez. In Lopez, the Supreme Court struck down a portion of the Gun-Free School Zones Act of 1990 that made it unlawful "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C.A. 922(q)(2)(A) (West Supp. 1995) (formerly 18 U.S.C. Section(s) 922(q)(1)(A)). The Court delineated three categories of permissible legislation under the Commerce Clause: (1) regulation of "the use of the channels of interstate commerce;" (2) regulation and protection of "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) regulation of "those activities having a substantial relationship to interstate commerce." ___ U.S. at ___-___, 115 S.Ct. at 1629-30.
See Crime Control Act of 1990, Pub.L. No. 101-647, Section(s) 1702, 1990 U.S.C.C.A.N. (104 Stat.) 4789, 4844-45, amended by Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, Section(s) 320904, 1994 U.S.C.C.A.N. (108 Stat.) 1796, 2125-26.
Section 922(q) failed to pass muster for two reasons. First, the Court noted that Section(s) 922(q) is a criminal statute that by its terms "has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." ___ U.S. at ___-___, 115 S.Ct. at 1630-31. Second, the Court pointed to the lack of any "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 1631.
In developing this second point, the Court distinguished Section(s) 922(q) from the statute at issue in United States v. Bass, 404 U.S. 336 (1971), which the Lopez opinion suggests did contain the sort of "express jurisdictional element" that would bring a criminal statute within the commerce power. Lopez, ___ U.S. at ___, 115 S.Ct. at 1631. At issue in Bass was the predecessor of the very statute under which Turner was convicted. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, Section(s) 1202(a), 82 Stat. 197, 236 (1969). The relevant portion of Section(s) 1202(a) made it unlawful for any person who had been convicted of a felony to "possess . . . in commerce or affecting commerce . . . any firearm." While the Bass Court did not decide the constitutionality of Section(s) 1202(a), the citation of Bass in Lopez strongly implies that the jurisdictional element was sufficient.
The language of Section(s) 922(g) relevant to Turner's appeal is as follows: "It shall be unlawful for any person — (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm . . . ." Turner argues that the requisite element of "in or affecting commerce" is insufficient to fall within the rule of Lopez. We disagree.
Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of Section(s) 922(g) provides the requisite nexus with interstate commerce that Section(s) 922(q) lacked. See, e.g., United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995); United States v. Hinton, No. 95-5095, 1995 WL 623876, at *2 (4th Cir. Oct. 25, 1995) (per curiam) (unpublished), cert. denied, ___ U.S. ___, United States v. Lee, 72 F.3d 55, 58 (7th Cir. 1995); United States v. Shelton, 66 F.3d 991, 992-93 (8th Cir. 1995) (per curiam); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.) cert. denied, ___ U.S. ___, 116 S.Ct. 543 (1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied, ___ U.S. ___.In addition, an unpublished opinion in our own circuit has upheld Section(s) 922(g) against a Commerce Clause challenge. United States v. Farris, No. 94-3920, 1995 WL 592054, at *6 n. 1 (6th Cir. Oct. 5, 1995) (per curiam) (unpublished).
Requiring the government in each case to prove that a felon has possessed a firearm "in or affecting commerce" ensures that the firearm possession in question affects interstate commerce and saves Section(s) 922(g) from the jurisdictional defect that doomed Section(s) 922(q). Accordingly, we hold that Section(s) 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause. Turner's conviction is, therefore, affirmed.