United States v. Dwayne Dupuch , 482 F. App'x 447 ( 2012 )

Case: 12-10038 Date Filed: 07/13/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10038
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20503-CMA-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DWAYNE DUPUCH,
lllllllllllllllllllllllllllllllllllllll l Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 13, 2012)
Before BARKETT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Dwayne Dupuch appeals his conviction under 18 U.S.C. §§ 922(g)(1) and
924(e)(1) of being a convicted felon in possession of a firearm and ammunition.
Dupuch contends § 922(g)(1) is unconstitutional, facially and as applied, in
violation of the Commerce Clause, because the possession of firearms by a
convicted felon does not have a substantial effect on interstate commerce. Dupuch
acknowledges, however, that this Court’s precedent forecloses his argument that
§ 922(g)(1) is unconstitutional.
Pursuant to § 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.” 18 U.S.C.
§ 922(g)(1). We have repeatedly held that § 922(g)(1) is not a facially
unconstitutional exercise of Congress’s power under the Commerce Clause. See
United States v. Scott, 263 F.3d 1270, 1273 (11th Cir. 2001) (holding “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, 1259-60
(11th Cir. 2001) (rejecting the argument that § 922(g)(1) is unconstitutional, both
facially and as applied, because Congress exceeded its authority under the
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Commerce Clause in passing the statute); United States v. Nichols, 124 F.3d 1265,
1266 (11th Cir. 1997) (holding § 922(g)(1) was not an unconstitutional extension
of Congress’s Commerce Clause power); United States v. McAllister, 77 F.3d 387,
389-90 (11th Cir. 1996) (holding that as long as the weapon in question has a
“minimal nexus” to interstate commerce, § 922(g) is constitutional). Thus,
Dupuch’s argument that § 922(g) is facially unconstitutional because Congress
exceeded its power under the Commerce Clause in enacting the statute is
foreclosed by our precedent.
Further, Dupuch’s argument that § 922(g)(1) is unconstitutional as applied
to him is foreclosed by precedent. This Court has held that § 922(g)(1) was not
unconstitutional as applied to a defendant who only possessed a firearm intrastate
because Ҥ 922(g) is an attempt to regulate guns that have a connection to
interstate commerce” and the government demonstrated that the firearm in
question “had traveled in interstate commerce.” McAllister, 77 F.3d at 390; see
also Dupree, 258 F.3d at 1260 (holding that brandishing a firearm that was
manufactured in another state suffices to establish the required “minimal nexus to
interstate commerce”). Dupuch was convicted of possessing the firearm and
ammunition in Florida, and stipulated that the firearm and ammunition were
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manufactured outside of Florida. Thus, the firearm and ammunition traveled in
interstate commerce, and § 922(g)(1) is not unconstitutional as applied to Dupuch.
AFFIRMED.
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