United States v. Turk

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21099 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY DEAN TURK,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-309-ALL -------------------- August 20, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Larry Dean Turk appeals his guilty-plea conviction under

18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted

felon. He argues 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). He

contends, in light of the Supreme Court’s recent decisions in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21099 -2-

Jones v. United States, 529 U.S. 848 (2000) and United States v.

Morrison, 529 U.S. 598 (2000), that 18 U.S.C. § 922(g)(1) can no

longer “constitutionally be construed to cover the intrastate

possession of a handgun merely because it traveled across state

lines at some point in the past.” He acknowledges that his claim

is foreclosed by existing Fifth Circuit precedent and states that

he raises the claim solely to preserve it for possible Supreme

Court review.

We reject the Government’s argument that Turk has waived his

ability to challenge the sufficiency of the factual basis of his

guilty plea by pleading guilty unconditionally. This court’s

precedents make it clear that, nothwithstanding an unconditional

plea of guilty, this court has the power to review, and will

reverse on direct appeal, if the factual basis for the plea fails

to establish an element of the offense of conviction. United

States v. White, 258 F.3d 374, 380, 384 (5th Cir. 2001)(factual

basis did not establish the existence of the predicate offense

required for conviction under 18 U.S.C. § 922(g)(9)); United

States v. Johnson, 194 F.3d 657, 659, 662 (5th Cir. 1999),

vacated and remanded, 530 U.S. 1201 (2000), opinion reinstated

with modification, 246 F.3d 749 (5th Cir. 2001)(factual basis did

not establish that arson of church established the interstate

commerce nexus required under 18 U.S.C. § 844(i)). Because Turk

raised this issue at his rearraignment in the district court with

the specific intention of preserving it for review, the harmless- No. 01-21099 -3-

error standard of review in FED. R. CRIM. P. 11(h) applies to his

challenge to the sufficiency of the factual basis.

Turk’s claim is foreclosed by circuit precedent. See United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.

denied, 122 S. Ct. 1113 (2002). Accordingly, the district

court’s judgment is AFFIRMED.