United States v. Walker ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5223
JEROME WALKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-94-133)
Submitted: February 20, 1996
Decided: July 25, 1996
Before HALL, MURNAGHAN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles R. Burke, Virginia Beach, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Kevin M. Comstock, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jerome Walker appeals his conviction and sentence for possession
of a firearm by a convicted felon, use of a firearm during a crime of
violence, and bank robbery, in violation of 18 U.S.C.A. §§ 922(g)(1),
924(c)(1), 2113(a), 2113(d) (West Supp. 1995). On appeal, Walker's
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), stating that, in his view, there are no meritorious
issues on appeal. Walker's attorney also submitted a brief sent to him
by Walker, raising four issues. Subsequently, Walker was notified of
his right to file a supplemental brief, which he failed to do. After a
complete and independent review of the record, we affirm.
I.
Walker first contends that Congress lacked power under the Com-
merce Clause to pass § 922(g). In support of this proposition, Walker
relies upon the recent Supreme Court decision in United States v.
Lopez, ___ U.S. ___, 63 U.S.L.W. 4343 (U.S. Apr. 26, 1995) (No. 93-
1260).
In Lopez, the Supreme Court invalidated 18 U.S.C.A. § 922(q)
(1)(A) (West Supp. 1995), a provision in the Gun-Free School Zones
Act of 1990, making possession of a firearm within 1000 feet of a
school a federal offense. 63 U.S.L.W. at 4343. The Court struck down
the conviction in part because the statute "contains no jurisdictional
element which would ensure, through case-by-case inquiry, that the
firearm possession in question affects interstate commerce." Id. at
4347.
Unlike the statute at issue in Lopez, there is a jurisdictional element
in § 922(g). Section 922(g) requires that possession of the firearm
affect or have a link with interstate commerce. Lopez noted with
approval the nexus requirement found in 18 U.S.C.A.§ 1202(a) (West
1995), the statute on which § 922(g) is patterned. 63 U.S.L.W. at
4347. Therefore, we agree with the other circuits that have addressed
this issue and find that Lopez did not invalidate § 922(g). See United
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States v. Bell, 70 F.3d 495, 497 (7th Cir. 1995); United States v.
Mosby, 60 F.3d 454, 456 n.3 (8th Cir. 1995), petition for cert. filed,
___ U.S.L.W. ___ (U.S. Dec. 4, 1995) (No. 95-7083); United States
v. Hanna, 55 F.3d 1456, 1462 (9th Cir. 1995); United States v.
Bolton, 68 F.3d 396, 400 (10th Cir. 1995).
II.
Similarly, Walker claims that the Lopez decision invalidated
§ 924(c). This contention is equally meritless.
Section 924(c)(1) mandates an additional term of imprisonment for
one who uses or carries a firearm "during and in relation to any crime
of violence or drug trafficking crime." As defined in § 924(c)(3)(A),
a "crime of violence" includes any felony offense that involves
"threatened use of physical force against the person or property of
another." Prosecution under § 924(c) does not occur in a vacuum.
Rather, it is triggered when one "uses or carries" a firearm during a
drug trafficking offense or violent crime for which the individual may
be independently prosecuted.
Section 2113(d), which criminalizes bank robbery, a crime of vio-
lence, is a valid exercise of Congress's Commerce Clause power, and
Walker does not contend otherwise. See Bolton , 68 F.3d at 399 (rob-
bery is an activity that through repetition can substantially affect
interstate commerce). Because Walker's § 924(c) conviction is based
on his § 2113 offense, which involved an activity that substantially
affected interstate commerce, we reject Walker's Lopez challenge to
§ 924(c). See United States v. Brown, ___ F.3d ___, 1995 WL
761640, *1 (8th Cir. 1995) (upholding § 924(c) in the face of a Lopez
challenge); Bolton, 68 F.3d at 398-99 & n.2 (rejecting Lopez-based
Commerce Clause challenges to Hobbs Act and § 924(c) convictions).
III.
Next, Walker claims that there was insufficient evidence to support
his § 924(c) conviction in light of the Supreme Court's decision in
Bailey v. United States, ___ U.S. #6D6D 6D#, 64 U.S.L.W. 4039 (U.S. Dec.
6, 1995) (Nos. 94-7448, 94-7492). In Bailey, the Supreme Court
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defined the "use" prong of § 924(c) to mean "active-employment." 64
U.S.L.W. at 4042. This decision overruled previous precedent in this
Circuit (and others) holding that it was enough if a firearm was pres-
ent for protection or to embolden the owner, whether or not it was
actually used. See, e.g., United States v. Nelson, 6 F.3d 1049, 1054
(4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3792 (U.S.
May 31, 1994) (No. 93-8210).
However, there is ample evidence in this case to support a § 924(c)
conviction, even in light of Bailey. The evidence showed that Walker
and his co-defendant George Carroll entered the First Union National
Bank of Virginia and approached the teller. Following an exchange
of bills between Carroll and the teller, Walker placed a gun flat on the
counter and pointed it directly at the teller. Walker asked the teller for
all of the hundred and fifty dollar bills from her drawer. After the
teller complied, Walker and Carroll left the bank. Such evidence is
more than sufficient to satisfy the requirements of§ 924(c). See
Bailey, 64 U.S.L.W. at 4042.
IV.
Finally, Walker contends that his convictions under both § 922(g)
and § 924(c) violated the Double Jeopardy Clause. In support of this
position, Walker relies on United States v. Ball , 470 U.S. 856 (1985).
In Ball, the Supreme Court held that when a defendant has been pros-
ecuted for two offenses involving the same criminal conduct, and he
has been convicted of one, he may not be convicted of the other. The
second criminal conviction--even if it does not carry an accompany-
ing sentencing component--constitutes double punishment which,
absent express Congressional authorization, is prohibited by the prin-
ciples of double jeopardy. Ball, 470 U.S. at 861-62.
However, § 922(g) requires proof of elements not required for con-
viction under § 924(c) and vice versa. Section 922(g) is a penalty for
a felon who possesses a firearm, while § 924(c) addresses Congress's
concern with crimes committed with a firearm. United States v.
McKinney, 919 F.2d 405, 417 (7th Cir. 1990). Therefore, the two stat-
utes do not punish the same criminal conduct, and Ball is not impli-
cated. In addition, because the statutes make clear that Congress
intended to impose cumulative punishments, the Double Jeopardy
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Clause is not violated. United States v. Lawrence, 928 F.2d 36, 38-39
(2d Cir. 1991); McKinney, 919 F.2d at 417.
V.
In accordance with the requirements of Anders , we have examined
the entire record in this case and find no meritorious issues for appeal.
We therefore affirm the judgment and order of the district court. This
court requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel's motion
must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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