United States v. Lamont Lee Nelson , 141 F. App'x 910 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 26, 2005
No. 05-10106 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00184-CR-J-25-MMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMONT LEE NELSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 26, 2005)
Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Lamont Lee Nelson appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). For the reasons
that follow, we affirm.
I.
On May 28, 2004, Nelson was found in Florida in possession of a firearm.
Subsequently, Nelson was indicted for being a previously convicted felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924 (e).1 At the
trial, Nelson stipulated that he had been convicted of a felony for purposes of that
element of the offense. Additionally, ATF agent Nichlos Cheremeta testified that
the firearm was manufactured in Massachusetts. The jury found Nelson guilty, and
the court sentenced him to the mandatory minimum sentence of 180 months’
imprisonment, to be followed by three years supervised release. This appeal
followed.
II.
On appeal, Nelson argues for the first time that § 922(g) is facially invalid
because Congress failed to define commerce as “interstate or foreign commerce”
and is otherwise unconstitutional because Congress exceeded its commerce clause
power in enacting the statute by failing to require that the possession of the firearm
substantially affect interstate commerce.
1
The indictment listed four prior convictions. Nelson did not challenge the indictment.
2
Although generally a constitutional challenge is subject to de novo review,
when a defendant fails to raise the objection before the district court, we review for
plain error. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995); see also
United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). “Plain error occurs
where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.”
Hall, 314 F.3d at 566.
As Nelson concedes, we have consistently upheld the constitutionality of
§ 922(g) against the challenges that Nelson raises on appeal.2 See, e.g., United
States v. Peters, 403 F.3d 1263, 1277 (11th Cir. 2005); United States v. Nichols,
124 F.3d 1265, 1266 (11th Cir. 1997); United States v. McAllister, 77 F.3d 387,
389-90 (11th Cir. 1996). Accordingly, Nelson cannot establish any error and we
AFFIRM his conviction.
AFFIRMED.
2
Here, the interstate nexus was established by the ATF agent’s testimony that the gun
was manufactured in Massachusetts and found in Florida.
3