United States v. Xavier Lister , 576 F. App'x 391 ( 2014 )

Case: 13-10535 Document: 00512718346 Page: 1 Date Filed: 07/31/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10535 FILED
Summary Calendar July 31, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
XAVIER LISTER,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-215-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Xavier Lister appeals his conviction of being a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). Relying on National Federation of
Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (National Federation),
he contends that § 922(g)(1) exceeds Congress’s power under the Commerce
Clause. He argues that § 922(g)(1) is unconstitutional as applied because there
was no testimony or stipulation that his possession of the firearm was an
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10535 Document: 00512718346 Page: 2 Date Filed: 07/31/2014
No. 13-10535
economic activity or 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. The Government moves for summary affirmance, or in the alternative,
for an extension of time to file an appellee’s brief.
We review preserved sufficiency of the evidence and constitutional
claims de novo. See United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009);
United States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010). Since our decision
in United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), we have
consistently held that § 922(g)(1) is a valid exercise of Congress’s authority
under the Commerce Clause. See United States v. Alcantar, 733 F.3d 143, 145
(5th Cir. 2013), cert. denied, 134 S. Ct. 1570 (2014). National Federation did
not overrule this court’s precedent upholding § 922(g)(1). Id. at 146.
Accordingly, Lister’s challenge to the constitutionality of § 922(g)(1) is
foreclosed. See id. at 146 & n.4; United States v. Meza, 701 F.3d 411, 418 (5th
Cir. 2012); United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
Therefore, we GRANT the Government’s motion for summary
affirmance, DENY its alternative motion for an extension of time to file an
appellee’s brief, and AFFIRM Lister’s conviction.
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