United States v. Michael A. Moody , 555 F. App'x 867 ( 2014 )

Case: 13-10521 Date Filed: 02/03/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10521
Non-Argument Calendar
________________________
D.C. Docket No. 8:12-cr-00264-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. MOODY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 3, 2014)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-10521 Date Filed: 02/03/2014 Page: 2 of 7
Michael A. Moody appeals the district court’s denial of his motion to
dismiss the indictment filed against him, which charged him with unlawful
possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e).
On appeal, Moody argues that the district court erred in denying his motion to
dismiss the indictment on the ground that § 922(g) is an unconstitutional exercise
of Congress’s Commerce Clause power as applied to purely intrastate conduct,
such as mere possession of a firearm, under United States v. Lopez, 514 U.S. 549,
115 S. Ct. 1624 (1995). Moody concedes that this argument is foreclosed by our
existing precedent but claims that it would be appropriate for us to review our
stance on the constitutionality of § 922(g) in light of our “potential expansion of
the principles of Lopez as expressed in Florida v. U.S. Department of Health,”
Florida ex rel. Attorney General v. U.S. Department of Health and Human
Services, 648 F.3d 1235 (11th Cir. 2011), aff’d in part, rev’d in part sub nom. Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012). Moody
also contends that § 922(g) violates the Tenth Amendment’s guarantee of state
sovereignty and the Fifth Amendment’s Due Process Clause.
We review a district court’s denial of a motion to dismiss the indictment for
an abuse of discretion, and we review any underlying legal errors de novo. United
States v. Broughton, 689 F.3d 1260, 1272 (11th Cir. 2012). We also review de
novo a district court’s conclusion as to the constitutionality of a challenged statute,
2
Case: 13-10521 Date Filed: 02/03/2014 Page: 3 of 7
United States v. Eckhardt, 466 F.3d 938, 943 (11th Cir. 2006), and whether a
criminal statute is unconstitutionally vague. United States v. Nelson, 712 F.3d
498, 504 (11th Cir. 2013). In addition, the law of this Circuit is “emphatic” that
only the Supreme Court or this Court sitting en banc can judicially override a prior
panel decision. Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).
Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful for a convicted felon “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.” In
Lopez, the Supreme Court held that gun control legislation related to possession of
firearms in school zones was an invalid exercise of Congress’s Commerce Clause
power partly because the statute could not be sustained under the reasoning that the
regulated activities, in the aggregate, substantially affected interstate commerce.
See Lopez, 514 U.S. at 561, 115 S. Ct. at 1631. In addition, the Supreme Court
emphasized that the challenged statute “contain[ed] no jurisdictional element
which would ensure, through case-by-case inquiry, that the firearm possession in
question affect[ed] interstate commerce.” Id.
Since Lopez, we have continually held that § 922(g) is not a facially
unconstitutional exercise of Congress’s Commerce Clause power because unlike
the statute at issue in Lopez, § 922(g) contains a jurisdictional requirement. See,
3
Case: 13-10521 Date Filed: 02/03/2014 Page: 4 of 7
e.g., United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) (“We have
repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of
Congress’s power under the Commerce Clause because it contains an express
jurisdictional requirement.”); United States v. Scott, 263 F.3d 1270, 1273 (11th
Cir. 2001) (reaffirming the holding that “the jurisdictional element of the statute,
i.e., the requirement that the felon ‘possess in or affecting commerce, any firearm
or ammunition,’ immunizes § 922(g)(1) from [a] facial constitutional attack”);
United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir. 2001) (upholding the
conclusion that “the jurisdictional element of § 922(g) brings it within the
commerce powers of the Congress”); United States v. McAllister, 77 F.3d 387,
389-90 (11th Cir. 1996) (holding that the jurisdictional element of § 922(g) defeats
a facial challenge to the statute even after the Supreme Court’s decision in Lopez).
More relevant to Moody’s argument here, we have also held that § 922(g) is
not unconstitutional as applied to a defendant who merely possessed a firearm
within state lines so long as the government introduces sufficient evidence showing
that the firearm has a minimal nexus to interstate commerce, i.e., that the firearm
was manufactured, assembled, or sold outside the state or that it travelled in
interstate commerce. See, e.g., Jordan, 635 F.3d at 1189 (holding that § 922(g)
was not unconstitutional “as applied to a defendant who possessed a firearm only
intrastate” because the government demonstrated that the firearm involved in that
4
Case: 13-10521 Date Filed: 02/03/2014 Page: 5 of 7
case was manufactured and assembled outside the state); Dupree, 258 F.3d at 1260
(holding that § 922(g) requires only a minimal nexus to interstate commerce and
that the defendant’s actions of brandishing a firearm in Georgia that was
manufactured in California satisfied the jurisdictional requirement of § 922(g));
McAllister, 77 F.3d at 390 (holding that even in the wake of Lopez, § 922(g) is
constitutional as applied to a defendant who merely possessed a firearm within
state lines so long as the firearm has a “minimal nexus” to interstate commerce).
As it is undisputed that the firearm involved in this case was manufactured outside
the state of Florida, the jurisdictional element of § 922(g) was satisfied, and the
statute is not unconstitutional as applied to Moody’s conduct.
In addition, Moody argues that our decision in Florida ex rel. Attorney
General v. U.S. Department of Health and Human Services, 648 F.3d 1235,
somehow altered our prior holdings with respect to the constitutionality of § 922(g)
as a valid exercise of Congress’s Commerce Clause power. In that case, we held
that the individual mandate of the Affordable Care Act exceeded Congress’s
regulatory powers under the Commerce Clause because it compelled citizens to
engage in commercial activity and regulated inactivity. Id. at 1311-13. However,
our decision in that case did nothing to abrogate or reverse our prior holdings
regarding the constitutionality of § 922(g), and thus Moody’s reliance on that case
is misplaced.
5
Case: 13-10521 Date Filed: 02/03/2014 Page: 6 of 7
Furthermore, we have held that Congress does not violate the Tenth
Amendment when it enacts legislation through the constitutionally permissible
exercise of its Commerce Clause power. See Cheffer v. Reno, 55 F.3d 1517, 1521
(11th Cir. 1995) (“Because the [challenged statute] is within Congress’ Commerce
Clause power, it does not violate the Tenth Amendment.”); see also New York v.
United States, 505 U.S. 144, 174, 112 S. Ct. 2408, 2427 (1992) (holding that
legislation enacted under the valid exercise of Congress’s commerce power does
not intrude on the sovereignty reserved to the states by the Tenth Amendment).
Moreover, we have held that § 922(g) does not violate the Tenth Amendment. See,
e.g., Hiley v. Barrett, 155 F.3d 1276, 1277 (11th Cir. 1998), aff’g Nat’l Ass’n of
Gov’t Emps., Inc. v. Barrett, 968 F. Supp. 1564, 1577-78 (N.D. Ga. 1997)
(affirming the district court’s conclusion that § 922(g) does not violate the Tenth
Amendment because it represents a valid exercise of Congress’s Commerce Clause
power). Thus, Moody’s argument that § 922(g) violates the Tenth Amendment by
encroaching on traditional state police powers necessarily fails.
Lastly, a criminal statute is unconstitutionally vague and violates due
process “if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits” or if “it authorizes or even
encourages arbitrary and discriminatory enforcement.” United States v. Wayerski,
624 F.3d 1342, 1347 (11th Cir. 2010) (internal quotation marks omitted). The
6
Case: 13-10521 Date Filed: 02/03/2014 Page: 7 of 7
plain language of § 922(g) makes clear that it is unlawful for any person who has
been convicted of a felony to “possess in or affecting commerce, any firearm or
ammunition,” and as Moody has failed to show how that provision is so vague that
a person of ordinary intelligence would have to guess at its meaning, his void-for-
vagueness argument must fail. Indigo Room, Inc. v. City of Fort Myers, 710 F.3d
1294, 1301 (11th Cir. 2013).
Accordingly, the district court did not err in denying Moody’s motion to
dismiss the indictment on the grounds that § 922(g) is unconstitutional.
AFFIRMED.
7