United States v. Jevonn Goolsby ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0103n.06
Case No. 21-3087
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Mar 07, 2022
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellee,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE NORTHERN DISTRICT OF
) OHIO
JEVONN GOOLSBY,
)
)
Defendant-Appellant.
)
Before: WHITE, THAPAR, and LARSEN, Circuit Judges.
THAPAR, Circuit Judge. After pleading guilty, Jevonn Goolsby appeals his conviction
for possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1).1 First, he argues
that his conviction should be vacated because section 922(g)(1) violates the Commerce Clause.
Second, he contends that it infringes on his Second Amendment right. But our precedent
forecloses both arguments. Thus, we affirm.
I.
“Crime and firearms form a dangerous mix.” United States v. Davis, 139 S. Ct. 2319, 2336
(2019) (Kavanaugh, J., dissenting). And that’s especially true when it comes to repeat offenders.
See, e.g., U.S. Sentencing Comm’n, Recidivism Among Federal Violent Offenders 11 (2019)
(noting that the rearrest rate for all violent offenders was 63.8 percent). With that in mind,
1
Goolsby also pleaded guilty to being a felon in possession of ammunition under 18 U.S.C. §§ 922(g)(9) and 924.
But he does not challenge these convictions, so we do not consider them.
Case No. 21-3087, United States v. Goolsby
Congress passed section 922(g)(1) to prohibit felons from possessing a firearm or ammunition that
has traveled in interstate or foreign commerce.
Goolsby’s prior felony convictions for robbery and aggravated robbery ensured he fell
squarely within the law’s reach. And after police officers in Akron, Ohio, found him with a Hi-
Point C9 pistol (the serial number scratched out) and seven rounds of ammunition, he pled guilty
to a charge of felon in possession of ammunition.2 The district court sentenced him to 115 months
of imprisonment with three years of supervised release to follow. He appealed.
II.
We take Goolsby’s twin constitutional challenges in turn. And as he failed to raise either
argument below, we review these claims for plain error. United States v. Bacon, 884 F.3d 605,
610 (6th Cir. 2018).
A.
Begin with his Commerce Clause challenge. Goolsby contends that the Commerce Clause
does not empower Congress to pass section 922(g)(1). To thwart his conviction, Goolsby points
to the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the
Court held that 18 U.S.C. § 922(q), a law which prohibited the possession of firearms near a school
zone, was an unconstitutional extension of Congress’s powers under the Commerce Clause. Id. at
551. According to Goolsby, what was fatal to section 922(q) must also be fatal to section
922(g)(1).
But we do not write on a clean slate here—far from it. Since Lopez came down almost
three decades ago, our court has repeatedly upheld section 922(g)(1) as a valid exercise of
2
The government only charged Goolsby for the ammunition. While much of our caselaw focuses on firearms rather
than ammunition, this distinction makes no difference here because section 922(g)(1) prohibits felons from possessing
either.
-2-
Case No. 21-3087, United States v. Goolsby
legislative power under the Commerce Clause. See, e.g., United States v. Chesney, 86 F.3d 564(6th Cir. 1996); United States v. Turner, 77 F.3d 887 (6th Cir. 1996). Those cases recognized that
section 922(g)’s explicit jurisdictional nexus—which requires the government to prove in each
case that the defendant possessed a firearm or ammunition “in or affecting commerce”—satisfied
the Court’s requirement that the law have some connection to interstate commerce. Chesney, 86
F.3d at 568–69; Turner, 77 F.3d at 889. And we’re not the only court to reject this challenge—
indeed, every circuit to confront the question has come out the same way.3 And that shouldn’t
surprise anyone. After all, Lopez itself distinguished section 922(g)(1)’s predecessor from the
school-zone provision it held invalid. See Lopez, 514 U.S. at 561–62; see also Chesney, 86 F.3d
at 568–69; Turner, 77 F.3d at 889 (noting that Lopez “strongly implies” that the jurisdictional
element in provisions like section 922(g) is sufficient).
Faced with this tsunami of precedent, Goolsby offers two responses. First, he points to
three Supreme Court cases that purportedly extend Lopez. See United States v. Morrison, 529 U.S.
598 (2000); Jones v. United States, 529 U.S. 848 (2000); Gonzales v. Raich, 545 U.S. 1 (2005).
But these cases do not help him. For starters, they operate within the Lopez framework and do not
alter the “jurisdictional nexus” analysis discussed above. And more to the point, nothing in these
cases casts doubt on Lopez’s endorsement of section 922(g)(1)’s predecessor provision. So this
court has continued to reject Commerce Clause challenges to section 922(g)(1) even after those
3
See, e.g., United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996); United States v. Sorrentino, 72 F.3d 294, 296 (2d
Cir. 1995), overruled on other grounds by United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008); United States v.
Singletary, 268 F.3d 196, 205 (3d Cir. 2001); United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996); United States
v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999); United States v. Lemons, 302 F.3d 769, 772–73 (7th Cir. 2002); United
States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam); United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.
1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995); United States v. McAllister, 77 F.3d 387, 389 (11th
Cir. 1996).
-3-
Case No. 21-3087, United States v. Goolsby
cases came down. See, e.g., United States v. Henry, 429 F.3d 603, 619–20 (6th Cir. 2005); United
States v. McBee, 295 F. App’x 796, 798 (6th Cir. 2008).
Second, Goolsby says we should revise our caselaw given broader doctrinal developments.
Specifically, he cites two cases that allegedly free us from our on-point precedent. In United States
v. Brown, we analyzed the constitutionality of a law criminalizing the production of child
pornography transported in interstate commerce. 327 F. App’x 526 (6th Cir. 2006) (per curiam).
As Goolsby points out, we upheld that law only after noting that the existence of a jurisdictional
element “standing alone” does not automatically insulate a statute from a searching analysis under
the Commerce Clause. See id. at 532. And in a thoughtful Tenth Circuit opinion, Judge
McConnell upheld a statute banning felons from possessing bulletproof vests only after identifying
a “considerable tension” between the Lopez test and pre-Lopez precedent that directly controlled.
United States v. Patton, 451 F.3d 615, 636 (10th Cir. 2006). But in our circuit, a prior panel’s
holding is binding on all later panels “unless an inconsistent decision of the United States Supreme
Court requires modification of the decision or this Court sitting en banc overrules the prior
decision.” United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000) (citation omitted). Since
Goolsby cannot cite any such authority, we lack the license to depart from our precedent.
Goolsby also brings an as-applied Commerce Clause challenge. He contends that the
government must prove that his seven rounds of ammunition made a substantial mark on interstate
commerce. But we have repeatedly seen and denied such claims as well. In Chesney, for instance,
we held that the defendant’s “stipulation that the gun had been transported in interstate commerce”
was enough to satisfy section 922(g)(1)’s jurisdictional element. 86 F.3d at 572. The same applies
here. During his plea colloquy, Goolsby confirmed that his ammunition traveled in interstate
commerce. That alone sinks his as-applied challenge.
-4-
Case No. 21-3087, United States v. Goolsby
B.
Goolsby next launches an as-applied Second Amendment challenge. Relying on the
Supreme Court’s decision in District of Columbia v. Heller, he argues that section 922(g)(1)
abridges his Second Amendment right to possess a firearm and ammunition for self-defense.
554 U.S. 570 (2008). We disagree. And once more, precedent paves our path.
Of course, Goolsby is right to start with Heller. But he is wrong to think that Heller helps
him. Although Heller recognized the fundamental right of law-abiding citizens to keep and bear
arms, it also declined to “cast doubt on longstanding prohibitions on the possession of firearms by
felons.” Id. at 626. Indeed, Heller went as far as to consider these prohibitions “presumptively
lawful.” Id. at 627 n.26. Pointing to this language, we have repeatedly found that “prohibitions
on felon possession of firearms do not violate the Second Amendment.” United States v. Carey,
602 F.3d 738, 741 (6th Cir. 2010); see also United States v. Whisnant, 391 F. App’x 426, 430 (6th
Cir. 2010); United States v. Khami, 362 F. App’x 501, 507 (6th Cir. 2010). In reaching this
conclusion, we have emphasized the government’s “compelling” interest in “protecting the
community” by “keep[ing] firearms out of the hands of presumptively risky people.” Tyler v.
Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 693–94 (6th Cir. 2016) (en banc) (lead opinion)
(citation omitted).
In an effort to end-run this precedent, Goolsby brings his claim as an as-applied challenge
on the ground that he needed a firearm to protect himself from a credible threat of violence. But
that framing doesn’t help him. We are reviewing his claim for plain error after all, and he identifies
no decision of this court (or any other) holding that a heightened personal need for self-defense
trumps the government’s interest in public safety. See United States v. Olano, 507 U.S. 725, 734
(1993) (noting that plain errors must be “clear” or “obvious”). Moreover, his criminal history
-5-
Case No. 21-3087, United States v. Goolsby
includes two convictions for robbery and a separate conviction for domestic violence. No one can
doubt that the government “stand[s] on solid footing” when it disarms violent felons such as
Goolsby. Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (arguing that
§ 922(g)(1) was unconstitutional as applied to a nonviolent felon); see also Stimmel v. Sessions,
879 F.3d 198, 209 (6th Cir. 2018).
* * *
We affirm.
-6-