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 1996-01

United States v. Eric v. Miller ( 1996 )


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  •                             ___________
No. 95-3081
___________
United States of America,         *
*
Appellee,               *
*   Appeal from the United States
v.                           *   District Court for the
*   District of Nebraska.
Eric V. Miller,                   *
*       [TO BE PUBLISHED]
Appellant.              *
___________
Submitted:   December 20, 1995
Filed: January 19, 1996
___________
Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Eric V. Miller challenges his conviction under 18 U.S.C.A.
§ 922(u) (West Supp. 1995) for stealing firearms previously
transported in interstate commerce, entered upon his conditional
guilty plea. For reversal, Miller asserts that the district court1
erred in rejecting his argument that section 922(u) violates the
Tenth Amendment to the United States Constitution. Miller relies
on United States v. Lopez,
    115 S. Ct. 1624 
    (1995) (concluding that
Congress exceeded its Commerce Clause authority in enacting Gun-
Free School Zones Act of 1990, 18 U.S.C. § 922(q)). Miller also
maintains that section 922(u) is inconsistent with its legislative
history. We affirm.
1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska, adopting the report and recommendation of
the Honorable Thomas D. Thalken, United States Magistrate Judge for
the District of Nebraska.
Section 922(u) provides:
It shall be unlawful for a person to steal or
unlawfully take or carry away from the person
or the premises of a person who is licensed to
engage   in   the   business   of   importing,
manufacturing, or dealing in firearms, any
firearm in the licensee's business inventory
that has been shipped or transported in
interstate or foreign commerce.
Reviewing the constitutionality of section 922(u) de novo, see
United States v. McMurray,
    34 F.3d 1405
    , 1413 (8th Cir. 1994),
cert. denied,
    115 S. Ct. 1164 
    (1995), we agree with the district
court that Miller's Lopez challenge fails. In United States v.
Shelton,
    66 F.3d 991
    , 992 (8th Cir. 1995) (per curiam), we upheld
18 U.S.C. § 922(g) against a Lopez challenge.       We held that,
because the language of section 922(g) contained an interstate-
element requirement, the statute ensured through case-by-case
inquiry that the firearm in question affected interstate commerce.
Id.; see also United States v. Rankin,
    64 F.3d 338
    , 339 (8th Cir.
(per curiam) (holding § 922(g)(1) clearly tied to interstate
commerce), cert denied,
    64 U.S.L.W. 3397 
    (U.S. Dec. 4, 1995) (No.
95-6563).   Like section 922(g), the plain language of section
922(u) contains an interstate-commerce nexus as an essential
element of the offense and thus ensures that the firearm in
question affects interstate commerce.       In view of the plain
language of section 922(u), we agree with the district court that
it is not necessary to refer to legislative history. See Hunger v.
AB; CD; EF; GH,
    12 F.3d 118
    , 121 (8th Cir.), cert. denied, 114 S.
Ct. 2676 (1994).
Accordingly, we affirm the judgment of the district court.
-2-
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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