United States v. Jimmy Morris , 457 F. App'x 900 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13412 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 13, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:11-cr-80027-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY MORRIS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 13, 2012)
Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Appellant Jimmy Morris appeals from his conviction for being a convicted
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Morris argues that his conviction under § 922(g) is unconstitutional both facially
and as-applied because the possession of a firearm by a convicted felon does not
substantially affect interstate commerce, and because his own possession did not
substantially affect interstate commerce. Specifically, Morris argues that
§ 922(g)’s phrase “in or affecting commerce” does not limit the definition of
commerce to “interstate or foreign commerce,” and that § 922(g) does not require
that the possession of the firearm by a convicted felon “substantially” affect
interstate commerce. The government argues that Morris waived his challenge to
the constitutionality of § 922(g) by pleading guilty, and that his challenge is
otherwise foreclosed by our precedent.
Although we generally review challenges to the constitutionality of a statute
de novo, we review for plain error where, as here, the challenge is raised for the
first time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
“Plain error occurs if (1) there was error, (2) that was plain, (3) that affected the
defendant’s substantial rights, and (4) that seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Id. (internal quotation marks
omitted). “A plain error is an error that is obvious and is clear under current law.”
United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (internal quotation
marks omitted).
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A guilty plea generally waives all non-jurisdictional challenges to a
conviction. United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008). Issues
not raised in an appellant’s initial brief are deemed abandoned. United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
In Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d
582 (1977), the Supreme Court examined a former statute, 18 U.S.C. § 1202(a), that
prohibited convicted felons from possessing firearms in or affecting commerce, and
held that proof that the possessed firearm previously had traveled in interstate
commerce was sufficient to satisfy the required “minimal nexus” between the
convicted felon’s possession and commerce. Id. at 564, 577-78, 97 S. Ct. at 1964,
1970. In United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626(1995), the Supreme Court considered whether a federal statute banning the
possession of firearms in school zones exceeded Congress’s authority to regulate
interstate commerce. Id. at 551, 115 S. Ct. at 1626. Noting that Congress’s
commerce power included the power to regulate activities that had a substantial
effect on interstate commerce, and that the statute at issue contained no
jurisdictional element to “ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce,” the Supreme Court held that
the statute exceeded Congress’s Commerce Clause authority. Id. at 558-59, 561,
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567-68, 115 S. Ct. at 1629-31, 1634. The Supreme Court contrasted the statute at
issue in Lopez with the former 18 U.S.C. § 1202(a), noting that, unlike the statute at
issue in Lopez, § 1202(a) had an express jurisdictional element limiting its reach to
firearm possessions that had an explicit nexus with interstate commerce. Id.
at 561-62, 115 S.Ct. at 1631. Finally, in United States v. Morrison, 529 U.S. 598,
120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), the Supreme Court held that Congress
lacked the authority to regulate “noneconomic, violent criminal conduct based
solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617, 120 S.
Ct. at 1754. The Court noted that the statute at issue, like the statute at issue in
Lopez, contained “no jurisdictional element establishing that the federal cause of
action is in pursuance of Congress’ power to regulate interstate commerce.” Id.
at 613, 129 S. Ct. at 1751.
We previously have rejected an appellant’s claim that, in light of Lopez,
§ 922(g)(1) was unconstitutional because it exceeded Congress’s Commerce
Clause power. United States v. McAllister, 77 F.3d 387, 388 (11th Cir. 1996). We
held that the “jurisdictional element” in § 922(g), requiring that the felon’s
possession of any firearm or ammunition be “in or affecting commerce,”
distinguished § 922(g) from the statute at issue in Lopez and defeated the
appellant’s facial challenge to its constitutionality. Id. at 389-90. We also
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rejected the appellant’s argument that the statute was unconstitutional as applied
to him because Lopez had abrogated the “minimal nexus” requirement that the
Supreme Court had established in Scarborough. Id. at 390. Noting that
“[n]othing in Lopez suggests that the ‘minimal nexus’ test should be changed,” we
held that the statute applied to the appellant because the government had
demonstrated that the firearm he had possessed previously had traveled in
interstate commerce. Id.
Subsequently, we rejected another appellant’s argument that our reasoning
in McAllister had been abrogated by the Supreme Court’s decision in Morrison.
See United States v. Scott, 263 F.3d 1270 (11th Cir. 2001). We held that, even
after Morrison, the jurisdictional element of § 922(g)(1) continued to immunize
the statute from facial constitutional attack. Scott, 263 F.3d at 1273. Finally, we
have rejected the argument that § 922(g)(1) is constitutionally invalid because the
term “commerce” is not defined as “interstate or foreign commerce.” United
States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997). We held that “the phrase
‘in or affecting commerce’ indicates a Congressional intent to assert its full
Commerce Clause power.” Id.We conclude that Morris’s claim is not barred by his guilty plea because it
necessarily implicates the district court’s subject-matter jurisdiction. If, as Morris
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claims, § 922(g)(1) is unconstitutional, either facially or as applied in his case,
then the district court would lack jurisdiction to convict and sentence him for
violating that statute. However, because Morris’s challenges to the
constitutionality of § 922(g)(1) are foreclosed by our precedent, he has not shown
any error, much less plain error, with respect to his conviction.
Accordingly, we affirm Morris’s conviction.
AFFIRMED.
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