United States v. Miller

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20465 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL MURRAY MILLER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-632-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Murray Miller 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), Miller 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20465 -2-

does not require a “substantial” effect on interstate commerce.

In the alternative, Miller 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.

Miller 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.

AFFIRMED; MOTION GRANTED.