U.S. v. Luna, 97-41265

Decision Date15 January 1999
Docket NumberNo. 97-41265,97-41265
Citation165 F.3d 316
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Norberto B. LUNA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Sangita Katikineni Rao, U.S. Dept. of Justice, Criminal Div., Washington, D.C., Paula Camille Offenhauser, James L. Powers, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal public Defender, William Gerow Christian, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendant, Norberto B. Luna appeals his sentence of eighty-four months in prison for knowingly possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Luna challenges the district court's application of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") and the constitutionality of § 922(j). Finding no reversible error, we affirm.


In August of 1996, Luna and two others burglarized a residence in Corpus Christi, Texas, and stole five firearms. Luna was subsequently arrested and charged in a single count indictment with knowingly possessing five stolen firearms that had been shipped and transported in interstate commerce, in violation if 18 U.S.C. § 922(j). 1 Luna filed a pre-trial motion to dismiss the indictment, arguing that § 922(j) was an unconstitutional exercise of the power of Congress under the Commerce Clause. The district court orally denied the motion, and the case proceeded to trial. As Luna waived trial by jury, he was tried by the court. Based on a written stipulation of facts, the district court found Luna guilty of possession of stolen firearms.

A presentence report ("PSR") was prepared by a probation officer who assigned Luna a base offense level of twenty pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Luna had a state conviction for burglary of a habitation. Additionally, Luna received a total of eight specific offense enhancements because (1) the offense involved at least five firearms (§ 2K2.1(b)(1)(B)), (2) the firearms were stolen (§ 2K2.1(b)(4)), and (3) the firearms were possessed in connection with another felony offense--the burglary (§ 2K2.1(b)(5)). Luna's offense level was reduced three levels for acceptance of responsibility. His resulting net offense level was twenty-five. This offense level and Luna's criminal history yielded a sentence range of 84 to 105 months imprisonment.

Prior to sentencing, Luna filed objections to the PSR, which the district court ultimately denied. Luna argued that (1) the enhancements under both §§ 2K2.1(b)(4) and (b)(5) constituted impermissible double counting; (2) the application of § 2K2.1(b)(4) was inappropriate because the firearms were not "stolen" prior to the time that he removed them from the residence; and (3) determination of his base offense level under § 2K2.1(a)(4)(A) was incorrect because his earlier state conviction for burglary was not a prior qualifying conviction. Finding Luna's objections to be meritless, the district court sentenced him to a term of eighty-four In this appeal, Luna reiterates his objections to the PSR, and again challenges the constitutionality of § 922(j)--the statute under which he was convicted. As he argued in his motion to dismiss the indictment, Luna asserts that § 922(j) is an unconstitutional exercise of the power of Congress under the Commerce Clause. Luna contends that both facially and as applied to him, the statute exceeds the authority of Congress under the Commerce Clause because the conveyance of a firearm over state lines at some unspecified point in the past does not substantially affect commerce. We begin by addressing the constitutionality of the statute and then consider Luna's challenges to his sentence under the Guidelines.

months, followed by three years of supervised release. 2

1. Standard of Review

In evaluating a constitutional challenge to a federal statute, we apply a de novo standard of review. 3

2. Facial Challenge

Luna contends that on its face 18 U.S.C. § 922(j) is an unconstitutional exercise of the power of Congress under the Commerce Clause. Section 922(j) makes it unlawful for any person to "receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm ... which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce." 4 Relying on the Supreme Court's decision in United States v. Lopez. 5 Luna argues that the mere possession of a stolen firearm that has crossed state lines in the past does not substantially affect interstate commerce, thereby falling outside the realm of activities that Congress can regulate under the commerce power. The district court rejected this argument when it denied Luna's motion to dismiss the indictment.

We have not previously been required to address the constitutionality of § 922(j). In fact, the only federal appellate court to rule on the constitutionality of § 922(j) so far is the Eighth Circuit, which did so in an unpublished opinion. In United States v. Kocourek, 6 that court upheld the constitutionality of § 922(j) in the face of a Commerce Clause challenge, based on the section's plain language that established the interstate commerce link--"shipped or transported in, interstate or foreign commerce." 7 The Kocourek court relied on its examination of 18 U.S.C. § 922(g), a statute containing virtually identical language to that of § 922(j), to ensure that the firearm in question sufficiently affected interstate commerce. 8 We agree with our colleagues in the Eighth Circuit and likewise hold that § 922(j) is a constitutional exercise of Congress's commerce power.

To properly define the boundaries of Congress's power to regulate activities involving firearms--specifically stolen firearms--we begin with a discussion of the Supreme Court's Lopez opinion. In Lopez, the Court examined 18 U.S.C. § 922(q), which prohibits the possession of a firearm within a designated school zone. The Court identified "three Unlike § 922(q), § 922(j) does contain a jurisdictional element. It specifically prohibits possession of a stolen firearm "which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce." 12 Luna argues that the jurisdictional element in § 922(j) is broadly worded, and such "clever legislative craftwork" cannot shield the statute from constitutional attack. 13 Section 922(j), however, contains language virtually identical to that of §§ 922(g)(1) and (g)(8), related provisions in the federal firearms statute that we have held constitutional in the face of post-Lopez Commerce Clause challenges. 14

                broad categories" of activity over which Congress could constitutionally exercise its commerce power:  (1) the use of the channels of interstate commerce;  (2) the instrumentalities of, or persons or things in, interstate commerce;  and (3) activities substantially affecting interstate commerce. 9  Analyzing § 922(q) within this framework, the Court first dismissed the possibility that intrastate possession of firearms could fit into the first two categories, and turned instead to the third category--whether the intrastate possession of firearms could substantially affect interstate commerce. 10  In holding § 922(q) unconstitutional, the Court noted that, as a criminal statute, § 922(q) had nothing to do with commercial enterprise nor was it an essential part of a larger regulation of economic activity, and thus did not substantially affect commerce.  Central to this holding was the lack of a "jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce." 11

For example, we have upheld, on several occasions, the constitutionality of § 922(g)(1) 15--the felon-in-possession statute--based in large part on the jurisdictional nexus expressed in the plain language. 16

                Section 922(g)(1) makes it unlawful for a convicted felon "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm ... or to receive any firearm ... which has been shipped in interstate commerce." 17  Unlike the statute at issue in Lopez, § 922(g)(1) expressly requires some nexus to interstate commerce, reflecting the ability of Congress to exercise its delegated power under the Commerce Clause to reach the possession of firearms that have an explicit connection with or effect on interstate commerce. 18  We find that the same reasoning applies to § 922(j), and the language "shipped or transported in, interstate or foreign commerce" likewise provides the requisite nexus to commerce that was lacking in Lopez

In addition to the jurisdictional nexus found in the language of § 922(j), congressional findings support the conclusion that possession of stolen firearms "substantially affects interstate commerce." 19 Congress initially enacted legislation containing a possession of stolen firearms provision out of a concern for "widespread traffic in firearms moving in or otherwise affecting interstate or foreign commerce." 20 Section 922 has been amended twice since its inception, and both amendments have broadened the scope and strengthened the role of the federal government in the continuing fight against illicit trafficking in stolen firearms. The provision was first expanded in 1990 to reach firearms "shipped or transported in" interstate commerce. In its report on proposed changes to § 922, the Judiciary Committee of the House of Representatives explained that the change in § 922(j) was designed to "expand Federal jurisdiction to permit prosecutions for transactions involving stolen firearms ... where the firearms have already moved in interstate...

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