United States v. Jonathan Everett Gibson , 615 F. App'x 619 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15620
Non-Argument Calendar
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D.C. Docket No. 5:13-cr-00011-RS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN EVERETT GIBSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 7, 2015)
Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Jonathan Gibson appeals his conviction after pleading guilty to one count of
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). For the first time, Gibson -- on appeal -- argues that § 922(g)(1) is facially
unconstitutional; he says it violates the Commerce Clause and the Tenth
Amendment.
We generally review constitutional challenges de novo, but because Gibson
failed to raise these arguments below, we review only for plain error. See United
States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). Therefore, Gibson must
demonstrate that error occurred, the error was plain, the error affects his substantial
rights, and the error seriously affects the fairness, integrity, or reputation of the
judicial proceedings. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005). An error cannot be “plain” unless it is “obvious” and “clear under
current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). In
addition, “only the Supreme Court or this [C]ourt sitting en banc can judicially
overrule a prior panel decision” of our Court. United States v. Dean, 604 F.3d
1275, 1278 (11th Cir. 2010).
We have repeatedly upheld the constitutionality of § 922(g)(1) as a valid
exercise of Congress’s Commerce Clause power. See, e.g., United States v.
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Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Dupree, 258 F.3d
1258, 1260 (11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 391 (11th
Cir. 1996). None of the recent Supreme Court decisions relied on by Gibson
abrogated or reversed our prior decisions on the constitutionality of § 922(g)(1).
Furthermore, considering § 922(g)(1) is a valid exercise of Congress’s Commerce
Clause power, the statute does not violate the Tenth Amendment. See Cheffer v.
Reno, 55 F.3d 1517, 1521 (11th Cir. 1995).
In this case, no plain error occurred. And Gibson’s arguments are squarely
foreclosed by binding precedent.
Next, Gibson argues, for the first time, that the “minimal nexus” test set out
in Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52
L.Ed.2d 582 (1977), is no longer sufficient for establishing the required connection
to interstate commerce under § 922(g). He points to the Supreme Court’s
decisions in Bond v. United States, 572 U.S. ___, 134 S.Ct 2077, 189 L.Ed.2d 1(2014), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902(2000). Gibson maintains that a more significant connection to interstate
commerce is now required for § 922(g) to cover intrastate possession and says that
his conviction cannot stand because no significant connection to interstate
commerce exists. As this claim is also raised for the first time on appeal, we
review only for plain error. See Peters, 403 F.3d at 1270.
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Neither Bond nor Jones involved § 922(g) or the “minimal nexus” test set
forth in Scarborough. Thus, Scarborough remains binding precedent; and the
“minimal nexus” test is the applicable standard for establishing a connection with
interstate commerce.
We reject Gibson’s argument. And it is squarely foreclosed by binding
precedent. Thus, the district court did not plainly err when it convicted Gibson of
being a felon in possession of a firearm, in violation of § 922(g)(1), where the
Government established (and Gibson acknowledged) that the pertinent firearm
previously traveled in interstate commerce.
AFFIRMED.
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