United States v. Leak ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4767
RODNEY EUGENE LEAK,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-96-43)
Submitted: May 20, 1997
Decided: June 13, 1997
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Timika Shafeek, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Rodney Eugene Leak appeals his conviction, after a guilty plea, for
possession of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g) (1994). He was sentenced to 180 months imprisonment, the
lowest sentence in the applicable guidelines range. In his plea agree-
ment he reserved the right to challenge the constitutionality of
§ 922(g), contending that the statute violates the Commerce Clause.
Finding no error, we affirm.
This court has rejected the argument that 18 U.S.C.§ 922(g) vio-
lates the Commerce Clause. In United States v. Wells, 98 F.3d 808,
811 (4th Cir. 1996), this court held that, unlike the Gun Free School
Zone statute at issue in United States v. Lopez , 514 U.S. 549 (1995),
the felon-in-possession statute requires the government to prove a
nexus between the firearm and interstate commerce. Thus, the statute
is constitutional.
Leak's counsel recognizes that his claim is precluded by Wells.
However, he urges this court to hear this case in banc with a view
toward overruling Wells. Every court considering the constitutionality
of § 922(g) has found that it passes constitutional muster. See, e.g.,
United States v. Gateward, 84 F.3d 670, 671-72 (3d Cir. 1996), cert.
denied, 117 S. Ct. 268 (1996); United States v. Abernathy, 83 F.3d 17,
20 (1st Cir. 1996); United States v. Spires, 79 F.3d 464, 466 (5th Cir.
1996); United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996);
United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), cert.
denied, 117 S. Ct. 262 (1996); United States v. Sorrentino, 72 F.3d
294, 296-97 (2d Cir. 1995); United States v. Bolton, 68 F.3d 396, 400
(10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996); United States
v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam), cert. denied,
116 S. Ct. 1364 (1996); United States v. Hanna , 55 F.3d 1456, 1461-
62 & n.2 (9th Cir. 1995). Further, the Supreme Court has rejected a
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Commerce Clause challenge to the predecessor statute to § 922(g).
Scarborough v. United States, 431 U.S. 563, 575 (1977). Thus, an in
banc hearing is not warranted.
Leak's pro se challenges are also meritless. He claims that the
search of his sister's home, where the gun was found, was improper,
and that he was essentially powerless to avoid violating the statute.
Leak's voluntary guilty plea waived all antecedent, non-jurisdictional
errors. Tollett v. Henderson, 411 U.S. 258 (1973). Because the facts
underlying these challenges were known to Leak before he entered his
plea, and because the challenges do not call into question the trial
court's jurisdiction, these claims are foreclosed by his plea.
Our review of the entire record, including transcripts of the plea
hearing and sentencing hearing, reveals no other potentially meritori-
ous issues for appeal. The district court conducted a plea hearing in
accordance with Fed. R. Crim. P. 11. During the hearing, the court
inquired as to Leak's competence and his understanding of the pro-
ceedings. The court ensured that Leak understood the charges against
him, the penalties he faced, and his rights to a jury trial, assistance of
counsel, and to testify on his own behalf. Further, the court asked
Leak whether he was satisfied with his counsel, and Leak said that he
was satisfied. The court also determined that there was a factual basis
for the plea.
The sentencing transcript reveals that Leak reviewed the presen-
tence report with his attorney, and he did not object to anything in the
report. The district court offered Leak the opportunity for allocution
at sentencing and Leak apologized for his offense. The court sen-
tenced Leak to the lowest sentence within the properly-calculated
guidelines range, and his sentence was dictated by a statutory manda-
tory minimum. Leak's guilty plea was knowing and voluntary and he
was properly sentenced.
We affirm Leak's conviction. We deny without prejudice counsel's
motion to withdraw at this stage of the proceedings. This court
requires counsel to inform his client, in writing, of his right to petition
the Supreme Court of the United States for further review. If the cli-
ent requests that a certiorari petition be filed, but counsel believes that
such a petition would be frivolous, counsel may then move in this
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court for leave to withdraw from representation. Counsel's motion
must state that a copy thereof was served on his client. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not significantly aid the decisional process.
AFFIRMED
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