United States v. McNeal ( 2003 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-40935
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    TOMMIE DWAYNE MCNEAL,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. G-01-CR-29-ALL
    --------------------
    February 20, 2003
    Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Tommie Dwayne McNeal appeals his guilty plea conviction and
    sentence for possession of a firearm by a convicted felon in
    violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2).     Relying on
    the Supreme Court’s decisions in Jones v. United States, 
    529 U.S. 848
     (2000); United States v. Morrison, 
    529 U.S. 598
     (2000); and
    United States v. Lopez, 
    514 U.S. 549
     (1995), McNeal argues that
    
    18 U.S.C. § 922
    (g)(1) is unconstitutional on its face because it
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 02-40935
    -2-
    does not require a “substantial” effect on interstate commerce,
    as is required for a constitutional exercise of Congress's power
    to regulate interstate commerce.   In the alternative, McNeal
    argues that if 
    18 U.S.C. § 922
    (g)(1) is interpreted as implicitly
    requiring a “substantial” effect on interstate commerce, his
    indictment and the factual basis supporting his guilty plea are
    insufficient.   McNeal further contends that 
    18 U.S.C. § 922
    (g)(1)
    can no longer constitutionally be construed to cover the
    intrastate possession of a handgun merely due to the fact that it
    traveled across state lines at some point in the past.   He argues
    that such a construction would be applicable to 90% of all
    firearms in this country.
    McNeal raises his arguments solely to preserve them for
    possible Supreme Court review.   As he acknowledges, his arguments
    are foreclosed by existing Fifth Circuit precedent.   See United
    States v. Cavazos, 
    288 F.3d 706
    , 712 (5th Cir.), cert. denied,
    
    123 S. Ct. 253
     (2002); United States v. Daugherty, 
    264 F.3d 513
    ,
    518 (5th Cir. 2001), cert. denied, 
    534 U.S. 1150
     (2002); United
    States v. Gresham, 
    118 F.3d 258
    , 264-65 (5th Cir. 1997); United
    States v. Kuban, 
    94 F.3d 971
    , 973 (5th Cir. 1996); United States
    v. Rawls, 
    85 F.3d 240
    , 242-43 (5th Cir. 1996).   Accordingly, the
    judgment of the district court is AFFIRMED.
    The Government has moved for a summary affirmance in lieu of
    filing an appellee's brief.   In its motion, the Government asks
    that an appellee's brief not be required.   The motion is GRANTED.
    No. 02-40935
    -3-
    AFFIRMED; MOTION GRANTED.