United States v. McNeal

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 2003
• Docket: 02-40935
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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