United States v. Mobley ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5416
ANTOINE LAMONTE MOBLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-95-30)
Submitted: November 28, 1995
Decided: March 28, 1996
Before HALL and NIEMEYER, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Antoine Lamonte Mobley appeals his conviction and
sentence pursuant to his guilty plea to being a felon in possession of
a firearm which moved in interstate commerce. 18 U.S.C. § 922(g)(1)
(1988 & Supp. V). The Appellant raises two issues on appeal. First,
Appellant suggests that § 922(g) is unconstitutional in light of the
Supreme Court's recent opinion in United States v. Lopez, ___ U.S.
___, 63 U.S.L.W. 4343 (U.S. Apr. 26, 1995) (No. 93-1260). Second,
he asserts that the term of supervised release announced at the sen-
tencing hearing controls over the inconsistent term found in the writ-
ten formal judgment. Because we find that § 922(g) withstands
constitutional scrutiny, we affirm his conviction. However, we vacate
Mobley's sentence and remand for the sole purpose of correcting the
clerical error concerning the term of supervised release in the written
judgment.
Appellant argues that the Supreme Court's decision in United
States v. Lopez mandates reversal of his conviction. We disagree.
Although we have not addressed the impact of Lopez on a § 922(g)
conviction, two other circuits have considered and rejected similar
constitutional challenges. See United States v. Mosby, 60 F.3d 454,
456 (8th Cir. 1995); United States v. Hanna, 55 F.3d 1456, 1462 (9th
Cir. 1995).
We find the logic of the Eighth and Ninth Circuit decisions persua-
sive. The Eighth Circuit quoted the "in or affecting commerce" lan-
guage of § 922(g) to find that the section logically belonged in a
category of activity that Congress may regulate. Mosby, 60 F.3d at456 n.3; see Lopez, 63 U.S.L.W. at 4346. Similarly, the Ninth Circuit
determined that § 922(g) possessed the jurisdictional element which
the provision at issue in Lopez lacked. Hanna, 55 F.3d at 1462 n.2
The Hanna court found that the requirement that the firearm at some
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time been involved in interstate commerce to be sufficient to establish
its constitutionality under the Commerce Clause. Id.Provisions criminalizing possession of firearms under the Com-
merce Clause have continuously been upheld. A minimal connection
with interstate commerce is sufficient to allow Congress to assert its
broad regulatory powers in the area of firearm possession. See
Scarborough v. United States, 431 U.S. 563, 575 (1977). When
addressing a number of federal firearm provisions, including
§ 922(g), this court held that "[t]he federal statute criminalizing the
possession of a firearm by a felon [18 U.S.C.A.§ 924(e) (West Supp.
1995)] does not violate the Commerce Clause because sufficient
nexus exists between the harm of firearms and interstate concerns."
United States v. Presley, 52 F.3d 64, 67 (4th Cir. 1995). We find that
Congress properly enacted § 922(g). Accordingly, we affirm Mob-
ley's conviction.
Mobley and the Government agree that the controlling term of
supervised release should be the three-year term announced at the
sentencing hearing and not the five-year term stated in the formal
written judgment. If there is any conflict between the written order
and oral sentence, the oral sentence is controlling. United States v.
Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965). If a sentence is imposed
in violation of the law, the proper remedy is to remand the case so
that the district court may correct the written judgment so it conforms
with the oral pronouncement at the sentencing hearing. See Fed. R.
Crim. P. 35(a). We therefore vacate the portion of the sentence in the
written judgment dictating the term of supervised release. We remand
for the solitary purpose of allowing the district court to correct the
written judgment to conform with the three-year supervised release
period announced at the sentencing hearing.
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 IN PART, VACATED IN PART, AND REMANDED
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