United States v. Jackie Burke , 577 F. App'x 338 ( 2014 )


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  •      Case: 13-10743      Document: 00512728737         Page: 1    Date Filed: 08/11/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 13-10743                                   FILED
    August 11, 2014
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                            Clerk
    Plaintiff - Appellee
    v.
    JACKIE DON BURKE,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:12-CR-281-1
    Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Jackie Don Burke (“Burke”) appeals the district court’s entry of final
    judgment of sentence and conviction. We AFFIRM.
    Burke was charged in a one-count indictment with engaging in the
    business of firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A)
    & 924(a)(1)(D). A jury found Burke guilty at trial, and the district court
    sentenced Burke and entered final judgment.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
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    No. 13-10743
    Burke appeals his conviction on several grounds. First, he asserts that
    his conviction should be vacated because the district court lacked subject
    matter jurisdiction. We review this issue de novo and conclude that the district
    court had jurisdiction pursuant to 18 U.S.C. § 3231. See United States v. Isgar,
    
    739 F.3d 829
    , 838 (5th Cir. 2014). 1
    Second, Burke maintains that his conviction should be vacated because
    § 922(a)(1)(A) exceeds Congress’s authority under the Commerce Clause
    because the first section of the statute lacks an interstate commerce nexus.
    Under the rule of orderliness, we are bound by our prior holding in United
    States v. King, 
    532 F.2d 505
    , 510 (5th Cir. 1976), in which we rejected this
    precise argument with respect to this precise statute. 2 See United States v.
    Alcantar, 
    733 F.3d 143
    , 145–46 (5th Cir. 2013) (holding that “only an
    intervening change in the law (such as by a Supreme Court case) permits a
    subsequent panel to decline to follow a prior Fifth Circuit precedent,” and that
    “[s]uch an intervening change in the law must be unequivocal, not a mere ‘hint’
    of how the Court might rule in the future.”), cert. denied, 
    134 S. Ct. 1570
    (2014).
    Burke argues that a series of recent cases from the Supreme Court 3 overrules
    our holding in King. However, none of these cases unequivocally overrule King
    1 Although Burke argues that § 922(a)(1) exceeds Congress’s authority under the
    Commerce Clause, such a constitutional challenge does not “affect[ the district] court’s
    subject matter jurisdiction.” United States v. Sealed Appellant, 
    526 F.3d 241
    , 243 & n.4 (5th
    Cir. 2008) (citation omitted); see also 
    Isgar, 739 F.3d at 838
    .
    2 Other circuits have come to the same conclusion on this question. See United States
    v. Ibarra, 472 F. App’x 819, 819 (9th Cir. 2012) (unpublished); United States v. Hornbeck, 
    489 F.2d 1325
    , 1326 (7th Cir. 1973); Mandina v. United States, 
    472 F.2d 1110
    , 1113–14 (8th Cir.
    1973). The Supreme Court, in analyzing a separate subsection of § 922, also rejected the
    argument that an interstate commerce nexus was required. See Huddleston v. United States,
    
    415 U.S. 814
    , 833 (1974).
    3Specifically, Burke cites the following cases: National Federation of Independent
    Business v. Sebelius, 
    132 S. Ct. 2566
    (2012); United States v. Lopez, 
    514 U.S. 549
    (1995); and
    United States v. Morrison, 
    529 U.S. 598
    (2000).
    2
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    or even address § 922(a)(1)(A). 4         Accordingly, we are bound by King and
    conclude that this issue is foreclosed. 5
    Third, Burke contends that his conviction should be vacated because the
    Government did not introduce sufficient evidence to establish a nexus between
    Burke’s activity and interstate commerce under § 922(a)(1)(A). However, such
    a nexus is not a required element of § 922(a)(1)(A) under King. 
    See 532 F.2d at 510
    . 6
    Finally, Burke asserts that his conviction should be vacated because
    § 922(a)(1)(A) is unconstitutionally vague. We review this issue de novo. See
    United States v. Monroe, 
    178 F.3d 304
    , 308 (5th Cir. 1999). Section 922(a)(1)(A)
    prohibits, among other things, any person, except a licensed dealer, from
    engaging in the business of dealing in firearms.                  Burke contends that
    § 922(a)(1)(A) is unconstitutionally vague because it does not provide clear
    notice of what conduct constitutes “engaging in the business of dealing in
    firearms.” At trial, the Government provided substantial evidence that Burke
    was engaged in the business of dealing in firearms, as those terms are defined
    4 National Federation involved a challenge to the Patient Protection and Affordable
    Care Act, Pub. L. No. 111-148, 124 Stat. 119 
    (2010). 132 S. Ct. at 2577
    . Lopez involved a
    challenge to the validity of the Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, 104
    Stat. 4844 
    (1990). 514 U.S. at 551
    . Morrison involved a challenge to the constitutionality of
    the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 
    (1994). 529 U.S. at 605
    .
    5 We note that while Burke seeks de novo review on this issue, the Government
    maintains that plain error review should apply because Burke did not preserve this issue for
    our review. Even under the least deferential standard of review, we affirm because Burke’s
    argument is foreclosed by our prior precedent.
    6 The parties again dispute whether this issue should be reviewed de novo or for plain
    error, given Burke’s failure to articulate before the district court the Commerce Clause
    argument that he now advocates on appeal. Here again, the outcome does not turn on the
    standard of review, so we need not decide which standard applies.
    3
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    under the statute. 7      See 18 U.S.C. §§ 921(a), 922(a)(1)(A).            Burke cannot
    challenge the constitutionality of § 922(a)(1)(A) for vagueness, because his
    conduct was unquestionably prohibited by the statute. See Parker v. Levy, 
    417 U.S. 733
    , 756 (1974) (“One to whose conduct a statute clearly applies may not
    successfully challenge it for vagueness.”); Broadrick v. Oklahoma, 
    413 U.S. 601
    , 608 (1973) (same); see also United States v. Strunk, 551 F. App’x 245, 246
    (5th Cir.) (unpublished) 8 (concluding that a defendant who, “without being
    licensed, sold firearms entrusted to him by others for the purpose of sale,” could
    not attack § 922(a)(1)(A) on the basis that it is vague, because “[s]uch conduct
    is unquestionably prohibited by the legislation’s text”), cert. denied, 
    134 S. Ct. 1912
    (2014); United States v. Shipley, 546 F. App’x 450, 456 (5th Cir. 2013)
    (unpublished) (rejecting a vagueness challenge to § 922(a)(1)(A) by a defendant
    who made, “over a number of years, numerous repetitive sales in quick
    succession, sometimes to repeat customers,” because “such conduct is
    unquestionably prohibited by the statutes’ text”), cert. denied, 
    134 S. Ct. 2842
    (2014).
    AFFIRMED.
    7   Specifically, the Government introduced evidence establishing that Burke: (a)
    advertised that he dealt in firearms; (b) acquired and sold approximately 135 firearms in the
    span of a year; (c) posted multiple sales listings on GunsAmerica.com for firearms valued at
    more than $25,000; (d) frequently purchased several firearms of the same model and caliber;
    (e) sold firearms for other individuals on a consignment basis; (f) sold a number of firearms
    with a total value of approximately $45,000 at a gun show; (g) affixed price tags to most of
    the firearms in his “Arms Room,” indicating their availability for sale; and (h) sold many of
    the firearms that he purchased within a few months of purchase.
    “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
    8
    but may be persuasive authority.” Ballard v. Burton, 
    444 F.3d 391
    , 401 n.7 (5th Cir. 2006).
    4