United States v. David Thursby , 558 F. App'x 495 ( 2014 )

Case: 12-11233 Document: 00512574656 Page: 1 Date Filed: 03/26/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-11233 FILED
Summary Calendar March 26, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID EUGENE THURSBY,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-7-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
David Eugene Thursby appeals his conviction for being a felon in
possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(e). Relying on National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)
(National Federation), Thursby contends that § 922(g)(1) exceeds Congress’s
power under the Commerce Clause. He argues that § 922(g)(1) is
unconstitutional as applied because his factual resume did not state that his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 12-11233 Document: 00512574656 Page: 2 Date Filed: 03/26/2014
No. 12-11233
possession of the firearm was an economic activity and failed to reflect that he
was engaged in the relevant market at the time of the regulated conduct.
Further, he contends that § 922(g)(1) is facially unconstitutional because
National Federation interpreted the Commerce Clause to mandate that
“Congress may regulate only ongoing economic activity,” and his possession of
a firearm purchased many years ago does not qualify.
In United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), and
decisions following, this court held that § 922(g)(1) was a valid exercise of
Congress’s authority under the Commerce Clause. See United States v.
Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). National Federation did not
overrule this court’s precedent upholding § 922(g)(1). Alcantar, 733 F.3d at
146. Whether this court’s review is de novo or for plain error, Thursby’s
challenge to the constitutionality of § 922(g)(1) is foreclosed. See Alcantar, 733
F.3d at 146 & n.4.
AFFIRMED.
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