United States v. Dorsey

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 31, 2002
• Docket: 01-21285
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21285 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENSON J. DORSEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-485-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Benson J. Dorsey 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). He argues

that 18 U.S.C. § 922(g)(1) is unconstitutional on its face

because it does not require that there be a “substantial” effect

on interstate commerce. He contends that, if a substantial

effect on interstate commerce is required for a 18 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21285 -2-

§ 922(g)(1) conviction, his indictment was deficient because it

did not allege the “substantial” effect on interstate commerce

necessary to render the statute constitutional. He further

contends that the factual basis for his guilty plea, which showed

his intrastate possession of a firearm manufactured outside the

state, was insufficient to establish the nexus with interstate

commerce required by 18 U.S.C. § 922(g)(1).

Dorsey raises the issues solely to preserve them for

possible Supreme Court review. As Dorsey acknowledges, his

arguments are foreclosed by existing Fifth Circuit precedent.

See 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.

AFFIRMED; MOTION GRANTED.