United States v. Gunn ( 1998 )

[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 97-1498
UNITED STATES,
Appellee,
v.
EDWIN GUNN, a/k/a GREGORY GUNN,
a/k/a GREGORY WELLS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
George F. Gormley, by appointment of the Court, with whom
John D. Colucci and Gormley & Colucci, P.C. were on brief for
appellant.
Donald L. Cabell, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
February 10, 1998
Per Curiam. Defendant-appellant Edwin J. Gunn was
Per Curiam.
indicted for being a felon in possession of a firearm and of
ammunition, both in violation of 18 U.S.C. 922(g)(1), and was
convicted of possessing the firearm. At sentencing, the district
court found Gunn to be an armed career criminal, as defined in 18
U.S.C. 924(e), and sentenced him to 216 months in prison and a
five-year term of supervised release. Gunn now appeals both his
conviction and his sentence. We affirm.
Gunn first argues that his conviction should be set
aside because the government failed to establish that he
possessed the firearm "in or affecting commerce." 18 U.S.C.
922(g). He contends that, under the test enunciated by the
Supreme Court in United States v. L pez, 514 U.S. 549 (1995),
Congress's exercise of its Commerce Clause power can only reach
activities that involve the use of the channels of interstate
commerce, instrumentalities of interstate commerce, or activities
that substantially affect interstate commerce. Noting that the
only evidence adduced at trial as to the firearm's connection
with interstate or foreign commerce was that the firearm was
manufactured in Argentina, Gunn concludes that this evidence
failed to establish that his mere possession of the gun
substantially affected interstate commerce.
This first argument fails because the government does
not need to prove that Gunn's possession of a firearm
substantially affected commerce. We have repeatedly held that,
after L pez, "it remains the law that where a federal criminal
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statute contains a jurisdictional element requiring proof that an
object was 'in or affecting' commerce, the government need only
meet the 'minimal nexus' test enunciated in Scarborough v. United
States, 431 U.S. 563, 577 (1977)." United States v. Cardoza, 129
F.3d 6, 11 (1st Cir. 1997); see also United States v. Smith, 101
F.3d 202, 215 (1st Cir. 1996), cert. denied, U.S. , 117 S.
Ct. 1345 (1997); United States v. Blais, 98 F.3d 647, 649 (1st
Cir. 1996), cert. denied, U.S. , 117 S. Ct. 1000 (1997);
United States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995).
The minimal nexus test is satisfied by evidence that the firearm
was manufactured in a state or country other than the one in
which the firearm was possessed; it does not require that the
defendant be the person to have transported the firearm across
state lines, or that the defendant be otherwise involved in the
"in or affecting commerce" aspect of the case. Scarborough, 431
U.S. at 577. The evidence provided by the government at trial
was sufficient to establish the required minimal nexus.
Gunn also claims that the district court erred in
sentencing him as an "armed career criminal," which is defined
under 18 U.S.C. 924(e)(1) as "a person who violates section
922(g) . . . and has three previous convictions . . . for a . . .
serious drug offense," because his three prior drug convictions
did not qualify as "serious drug offense[s]." Under 18 U.S.C.
924(e)(2)(A)(ii), a "serious drug offense" is defined as "an
offense under State law, involving . . . possessing with intent
to . . . distribute, a controlled substance, . . . or which a
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maximum term of imprisonment of ten years or more is prescribed
by law." Even though his three prior convictions were for
violations of Mass. Gen. Laws ch. 94C, 32A, which carries a
maximum penalty of ten years in state prison, Gunn argues that
the convictions were not for "serious drug offenses" because he
was prosecuted for those offenses in certain lower courts that
lacked competence to sentence him to the ten-year maximum
sentence.
We reject this argument and affirm Gunn's sentence for
affirm
the reasons expressed in the district court's memorandum of
decision. See United States v. Gunn, 962 F. Supp. 214 (D. Mass.
1997).
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