United States v. Gary E. Chesney

86 F.3d 564, 44 Fed. R. Serv. 1172, 1996 U.S. App. LEXIS 14508, 1996 WL 325359
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 14, 1996
Docket95-5203
StatusPublished
Cited by153 cases

This text of 86 F.3d 564 (United States v. Gary E. Chesney) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gary E. Chesney, 86 F.3d 564, 44 Fed. R. Serv. 1172, 1996 U.S. App. LEXIS 14508, 1996 WL 325359 (6th Cir. 1996).

Opinions

MOORE, Circuit Judge.

Defendant-Appellant Gary E. Chesney appeals his conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). We find no merit in Chesney’s assignments of error and affirm.

I

On June 5, 1992, two men robbed Jerome Wingfield at gunpoint. One of the robbers beat Wingfield about the body with a gun, which Wingfield described as a chrome-plated .38 or .357 revolver. Wingfield shot at the robbers, who shot back, but the robbers escaped. Wingfield described the robbers to police, who identified the robbers as Chesney and Ricky Golden.

On June 10, 1992, Ann Myers (“Myers”), Chesney’s state probation officer, informed the Knoxville police that Chesney was at her office. When the Knoxville police officers arrived at Myers’s office, Myers told them that Chesney had left in a 1980 Pontiac Bonneville. The Knoxville police stopped the automobile that Myers had described. Chesney was a passenger in the automobile, which Golden was driving. The Knoxville police officers searched the vehicle and found a .357 revolver among Chesney’s state prison clothes in the trunk of the car. The car belonged to Chesney’s girlfriend.

Chesney was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Chesney stipulated that he had been convicted of a felony, and that the firearm was a .357 magnum revolver that was not manufactured in Tennessee and had been shipped or transported in interstate commerce. Chesney was found guilty after a two-day jury trial, and was sentenced to 262 months of incarceration and five years of supervised release.

Chesney raises five issues on appeal. First, Chesney argues that § 922(g)(1) is unconstitutional because it allegedly exceeds Congress’s power under the Commerce Clause and because the government failed to prove a substantial nexus between the crime charged and interstate commerce. Second, Chesney claims that the district court erred by admitting evidence about the June 5 robbery of Wingfield. Third, Chesney argues that the district court erred by instructing the jury on joint possession. Fourth, Chesney argues that his proposed jury instruction on credibility of witnesses should have been given by the court. Finally, Chesney asserts that he should have been permitted to argue to the jury about the punishment he would receive if convicted.

II

Section 922(g)(1) provides:

It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Chesney claims that the Supreme Court’s decision in United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), requires us to invalidate his conviction pursuant to § 922(g)(1) because he claims that § 922(g)(1) is beyond Congress’s Commerce Clause powers, and because the government failed to prove that Chesney’s possession of this particular gun had a substantial effect on interstate commerce. Chesney thus appears to challenge the statute both on its face and as applied to him.

A

Chesney did not raise the issue of the constitutionality of § 922(g)(1) below. Normally, such a waiver would preclude our consideration of the issue on appeal. Foster v. Barilow, 6 F.3d 405, 407 (6th Cir.1993). However, we may exercise our discretion to review an issue not raised below in “ ‘exceptional cases or particular circumstances,’ ” or “when the rule would produce ‘a plain mis[568]*568carriage of justice.’” Id. (quoting Pinney Dock & Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988)).

We find that such exceptional circumstances exist here because the Lopez case was decided after the district court entered judgment in this case. Thus, Chesney’s Lopez challenge to § 922(g)(1) was not available below. Moreover, the constitutionality of § 922(g)(1) is purely a legal question that has been briefed fully by both parties. United States v. Real Property Known & Numbered As 429 South Main Street, New Lexington, Ohio, 52 F.3d 1416, 1419 (6th Cir.1995) (“Although [claimant] did not raise this issue below, we address it on appeal, because the question presents a purely legal issue not available to [claimant] below____ In addition, both parties have briefed the issue.”).

B

Since the submission of Chesney’s appeal to this panel, another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that “§ 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause.” Id. at 889. As this court wrote in Turner, “Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce that § 922(q) lacked.” Id. (citing United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995); United States v. Hinton, No. 95-5095, 1995 WL 623876, at *2 (4th Cir. Oct. 25, 1995) (per curiam) (unpublished), cert. denied, — U.S.-, 116 S.Ct. 1026, 134 L.Ed.2d 104 (1996); United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995); United States v. Shelton, 66 F.3d 991, 992-93 (8th Cir.1995) (per curiam), cert. denied, — U.S. -, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied, — U.S.-, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied, — U.S.-, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996)). See also United States v. Gateward, 84 F.3d 670, 672 (3d Cir.1996); United States v. Bradford, 78 F.3d 1216, 1223 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1581, — L.Ed.2d - (1996); United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.1996); United States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.1996); United States v. Bennett, 75 F.3d 40, 48-49 (1st Cir.1996); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995); United States v. Rankin, 64 F.3d 338, 339 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 577, 133 L.Ed.2d 500 (1995); United States v. Hanna, 55 F.3d 1456, 1461-62 (9th Cir.1995). Thus, all ten courts of appeals that have considered the constitutionality of § 922(g)(1) since Lopez have upheld the statute.

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Bluebook (online)
86 F.3d 564, 44 Fed. R. Serv. 1172, 1996 U.S. App. LEXIS 14508, 1996 WL 325359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-e-chesney-ca6-1996.