United States v. Ellis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4933
CURTIS ELWOOD ELLIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CA-02-49-FO)
Submitted: June 19, 2003
Decided: June 25, 2003
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilming-
ton, North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Christine
Witcover Dean, Assistant United States Attorney, Raleigh, North Car-
olina, for Appellee.
2 UNITED STATES v. ELLIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Curtis Elwood Ellis pled guilty to possession of a firearm by a con-
victed felon, 18 U.S.C. § 922(g)(1) (2000), pursuant to a plea agree-
ment in which he waived his right to appeal his sentence. Ellis was
sentenced to a term of 110 months imprisonment. He now appeals his
conviction and sentence. We affirm Ellis’ conviction and dismiss the
challenge to his sentence.
Ellis alleges that the district court plainly erred in failing to dismiss
the indictment on the ground that § 922 no longer has a sufficient
nexus with interstate commerce in light of the Supreme Court’s deci-
sions in United States v. Lopez, 514 U.S. 549 (1995), United States
v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529
U.S. 848 (2000). His argument is foreclosed by our decision in United
States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001) (holding that
Morrison and Jones do not affect our decisions regarding the constitu-
tionality of § 922(g)), and United States v. Wells, 98 F.3d 808, 810-11
(4th Cir. 1996) (holding that the jurisdictional requirement of
§ 922(g) satisfied Commerce Clause).
Ellis next argues that the district court erred in applying a four-
level enhancement pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2002) for possession of a firearm in connection with
another felony offense. In his plea agreement, Ellis waived his right
to appeal "whatever sentence is imposed, including any issues that
relate to the establishment of the Guideline range," reserving only the
right to appeal from an upward departure. A defendant may waive the
right to appeal if that waiver is knowing and voluntary. United States
v. Brown, 232 F.3d 399, 402-03 (4th Cir. 2000). Ellis does not con-
tend that his waiver was unknowing or involuntary, and our review
of the guilty plea hearing leads us to conclude that it was voluntary.
Thus, the claim of sentencing error may not be raised on appeal.
UNITED STATES v. ELLIS 3
We therefore affirm the conviction. We dismiss that portion of the
appeal which seeks to challenge the sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART, DISMISSED IN PART