United States v. Gordon , 272 F. App'x 674 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
April 2, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-3225
v. (D.C. No. 07-CR-10003-MLB)
(D. Kan.)
GENE A. GORDON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Defendant-appellant Gene A. Gordon entered a conditional guilty plea to
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
His plea agreement preserved his right to appeal one issue: Whether § 922(g)(1)
is unconstitutional because it is not supported by the Commerce Clause. We have
jurisdiction under 28 U.S.C. § 1291, and affirm.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
Title 18, section 922(g)(1) of the United States Code criminalizes the
possession of a firearm “which has been shipped or transported in interstate or
foreign commerce” by anyone convicted of a crime punishable by more than one
year’s imprisonment. Gordon admitted to being a felon and possessing a Beretta
handgun. In addition, because Beretta does not manufacture weapons in Kansas,
Gordon acknowledged that the government could easily prove that the weapon
had been transported in interstate commerce.
On appeal, Gordon argues that the felon-in-possession statute violates the
Commerce Clause. 1 He contends that the mere fact that the handgun was
transported across state lines provides an insufficient nexus to interstate
commerce when his own possession occurred entirely within the State of Kansas.
He relies primarily on United States v. Lopez, 514 U.S. 549 (1995), and United
States v. Morrison, 529 U.S. 598 (2000). See Lopez, 514 U.S. at 651 (holding
that a federal statute criminalizing firearm possession in school zones was not
supported by the Commerce Clause because it lacked an intrastate commerce
element); Morrison, 529 U.S. at 617-18 (rejecting an argument that “Congress
may regulate noneconomic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce”).
1
Gordon states that he challenges the constitutionality of § 922(g) to
preserve the issue for further review.
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Long before these cases, in Scarborough v. United States, 431 U.S. 563(1977), the Supreme Court upheld a felon-in-possession statute that required no
“more than the minimal nexus that the firearm have been, at some time, in
interstate commerce.” Id. at 575. Even after Lopez and Morrison, “[t]he
constitutional understanding implicit in Scarborough—that Congress may regulate
any firearm that has ever traversed state lines—has been repeatedly adopted for
felon-in-possession statutes by this Court.” United States v. Patton, 451 F.3d
615, 634 (10th Cir. 2006); see also United States v. Dorris, 236 F.3d 582, 584-86
(10th Cir. 2000); United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir.
2000); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995). We are bound
by these prior decisions.
Gordon argues that even if we are less than persuaded that § 922(g) violates
the Commerce Clause, we should apply the “constitutional doubt” doctrine of
Jones v. United States, 529 U.S. 848 (2000). Jones held that when a statute is
susceptible to two constructions—one clearly constitutional and another raising
grave constitutional questions—courts should adopt the clearly constitutional
reading. Id. at 857. We disagree that the natural construction of § 922(g), which
criminalizes possession of a firearm that has at any time in the past crossed state
lines, creates any constitutional doubt. See United States v. McNeill, 239 F.
App’x 449, 450-51 (10th Cir. Aug. 20, 2007) (unpublished) (citing United States
v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc)) (“[N]o doubts regarding
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the construction of a statute exist when prior precedent directly upholds that
construction.”).
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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