United States v. Gipson , 182 F. App'x 340 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20537
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES GIPSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-366-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Gipson appeals his jury-trial conviction for being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) & 924(a)(2). He argues that § 922(g)(1) is
unconstitutional on its face and as applied to the instant case
because it does not require a substantial effect on interstate
commerce. He also argues that his conviction should be reversed
because the indictment does not allege that the offense had a
substantial impact on interstate commerce. He acknowledges that
*
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this opinion should not be published and is not precedent except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.
No. 05-20537
-2-
these arguments are foreclosed by precedent, but raises them to
preserve them for possible Supreme Court review.
We have repeatedly held that “the constitutionality of
§ 922(g) is not open to question.” United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001) (internal quotation marks and
citation omitted). Evidence that a weapon was manufactured in one
state and possessed in another is sufficient to sustain a
conviction under § 922(g). See Daugherty, 264 F.3d at 518 & n.12;
United States v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996); United
States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996).
Additionally, in United States v. Gresham, 118 F.3d 258, 264-65
(5th Cir. 1997), we rejected a challenge to the sufficiency of the
indictment under § 922(g)(1) that was identical to the one raised
by Gipson in this case.
Gipson further argues that § 922(g)(1) unconstitutionally
infringes on his Second Amendment right to keep and bear arms. He
maintains that the statute is overbroad, it violates the Tenth
Amendment, and it violates the principles of equal protection. He
acknowledges that his arguments are foreclosed by this court’s
decision in United States v. Darrington, 351 F.3d 632, 633-35 (5th
Cir. 2003), but has raised the issue to preserve it for possible
review by the Supreme Court. Accordingly, Gipson’s challenges to
the constitutionality of § 922(g)(1) and to the indictment are
foreclosed by circuit precedent.
No. 05-20537
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Gipson also argues that the district court erred by refusing
to give his requested jury instruction on constructive possession
and joint occupancy. The refusal to give a particular instruction
is error only if the instruction “(1) was substantially correct,
(2) was not substantially covered in the charge delivered to the
jury, and (3) concerned an important issue so that the failure to
give it seriously impaired the defendant’s ability to present a
given defense.” United States v. Pennington, 20 F.3d 593, 600 (5th
Cir. 1994). Gipson’s argument fails because the district court’s
instruction substantially covered the issue raised by Gipson and
the district court’s decision not to give the requested charge did
not seriously impair Gipson’s defense. See id. at 600.
AFFIRMED.