United States v. Thomas Porter

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2019
• Docket: 18-14551
• Status: Unpublished

Opinion

Case: 18-14551 Date Filed: 12/03/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14551 Non-Argument Calendar ________________________

D.C. Docket No. 6:17-cr-00273-CEM-TBS-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee, versus

THOMAS PORTER,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(December 3, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 18-14551 Date Filed: 12/03/2019 Page: 2 of 4

Thomas Porter appeals his conviction for possessing a firearm after a felony

conviction in violation of 18 U.S.C. § 922(g)(1). He argues that § 922(g)(1) is

unconstitutional, facially and as applied, because it exceeds Congress’s power

under the Commerce Clause. See U.S. Const. art. I., § 8, cl. 3. Porter

acknowledges that this argument is currently foreclosed by this Circuit’s precedent

but preserves it for further review. Because Porter’s argument is foreclosed by

precedent, we affirm his conviction.

I. BACKGROUND

A federal grand jury indicted Porter for possessing a firearm after a felony

conviction in violation of 18 U.S.C. § 922(g)(1). Porter and the government jointly

moved for a bench trial on stipulated facts. The parties stipulated that Florida law

enforcement discovered a firearm on Porter’s person during a search of his home

performed under the terms of his probation. The parties also stipulated that: (1)

Porter, having been previously convicted of felonies punishable by imprisonment

for more than one year, knowingly possessed a firearm; and (2) the firearm was

manufactured in Austria and therefore had traveled in foreign commerce. The

district court found Porter guilty, and the instant appeal followed.

II. STANDARD OF REVIEW

Generally, we review de novo constitutional challenges to statutes. United

States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, we review Porter’s

2 Case: 18-14551 Date Filed: 12/03/2019 Page: 3 of 4

constitutional challenge to § 922(g) for plain error because he raises it for the first

time on appeal. Id. “Plain error occurs if (1) there was error, (2) that was plain,

(3) that affected the defendant’s substantial rights, and (4) that seriously affected

the “fairness, integrity, or public reputation of judicial proceedings.” Id. Under

the prior precedent rule, we must “follow a prior binding precedent unless and until

it is overruled by this court en banc or by the Supreme Court.” United States v.

Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (internal quotation marks

omitted).

III. DISCUSSION

Porter argues that § 922(g)(1) is facially unconstitutional because it exceeds

Congress’s authority under the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3.

As pertinent here, Congress’s commerce power applies to activities that

substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 559

(1995). This Court has held that § 922(g) is constitutional where the government

proves a “minimal nexus” to interstate commerce, which it may do by

demonstrating that the firearm traveled in interstate commerce. Wright, 607 F.3d

at 716. Porter argues that Wright’s “minimal nexus” standard is unconstitutional

because it is well below Lopez’s “substantially affect[s]” standard. Id.; Lopez, 514

U.S. at 559. Porter also argues that § 922(g)(1) was unconstitutional as applied to

him because the district court did not find that his offense substantially affected

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interstate commerce. Porter did not admit that his offense substantially affected

interstate commerce, and the government provided no evidence beyond the

stipulated facts.

We find no error, much less plain error, in this case because this Court has

repeatedly upheld § 922(g)(1) as a constitutional exercise of Congress’s Commerce

Clause power. See Wright, 607 F.3d at 716 (citing United States v. Nichols, 124

F.3d 1265 (11th Cir. 1997), and United States v. McAllister, 77 F.3d 387 (11th Cir.

1996)). Porter acknowledges this precedent and maintains the argument for

purposes of further review. Under the prior precedent rule, Porter’s constitutional

argument fails. Vega-Castillo, 540 F.3d at 1236.1 And the district court did not err

in finding a minimal nexus between the firearm and interstate commerce because

the parties stipulated that the firearm was made in Austria and was recovered in

Florida. Wright, 607 F.3d at 716.

IV. CONCLUSION

For the foregoing reasons, we affirm Porter’s conviction.

AFFIRMED.

1 Porter also argued in his opening brief that the indictment improperly omitted a critical element of the offense—that Porter knew he was a convicted felon at the time of the possession. He expressly abandoned this argument in his reply brief, however, stating that he “is no longer pursuing [this argument] for purposes of his direct appeal.” Reply Br. of Appellant at 5. 4