US v. Dorris, No. 99-6429

• Decision Date: 22 December 2000
• Docket Number: No. 99-6429
• Citation: 236 F.3d 582
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MELVIN EUGENE DORRIS, also known as Melvin Eugene Littles, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 582

236 F.3d 582 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MELVIN EUGENE DORRIS, also known as Melvin Eugene Littles, Defendant-Appellant.

No. 99-6429

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 22, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 99-CR-40-L)

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado, on the briefs for Defendant-Appellant.

Daniel G. Webber, Jr., United States Attorney, Mark A. Yancey, Assistant U.S. Attorney, and Sue Tuck Richmond, Assistant U.S. Attorney, Oklahoma City, Oklahoma, on the briefs for Plaintiff-Appellee.

Before BALDOCK, PORFILIO, and BRORBY, Circuit Judges.

PORFILIO, Senior Circuit Judge.

Melvin Dorris appeals his conviction for felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) and his resulting sentence of 210 months' imprisonment. The parties have requested this matter be considered without oral argument, and we have honored that request. Fed. R. App. P. 34(a)(2).

First, Mr. Dorris argues the felon in possession of a firearm statute he violated is beyond Congressional authority under the Commerce Clause. Second, he challenges his sentence relying on the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), for insufficiency of the indictment, which failed to charge three previous felonies as elements of his crime. Mr. Dorris' claims fail in the face of clear Supreme Court and Circuit precedent on these issues.

I. THE CASE

On September 19, 1998, Oklahoma City police officer Maurice James arrested Melvin E. Dorris in response to a 911 call that reported shooting in a neighborhood. Mr. Dorris was arrested with a Colt .38 caliber revolver, which contained four expended rounds and two unfired rounds, and a black bag with additional ammunition inside. Officer James contacted the Bureau of Alcohol, Tobacco, and Firearms (ATF) after taking Mr. Dorris and the evidence into custody. Parallel proceedings in federal and state courts followed. Mr. Dorris was charged in Oklahoma state court with possession of a firearm after conviction of a felony. In October 1998, the federal government filed charges against Mr. Dorris, and in February 1999, removed him from the custody of Oklahoma state officials. In April 1999, he pleaded nolo contendere in state court and was sentenced to two years to run concurrently with any sentence imposed in the pending federal case. In June 1999, he was tried before a jury in federal court and convicted of violating 18 U.S.C. 922(g)(1).

Mr. Dorris was sentenced under the Armed Career Criminal Statute, 18 U.S.C. 924(e), and accompanying Sentencing Guideline, U.S.S.G. 4B1.4. The statute requires a mandatory minimum sentence of 15 years. The guideline range was 188-235 months, from which the district court imposed a sentence of 210 months (17 1/2 years).

II. SECTION 922(g)(1) AND THE COMMERCE CLAUSE

Mr. Dorris first argues Congress exceeded its authority under the Commerce Clause in enacting 922(g)(1). He asks us to strike down the law and to overturn his conviction. In the alternative, Mr. Dorris urges us to hold the government must prove the gun possession had some actual or substantial effect on interstate commerce and remand his case for further proceedings by the district court. Settled Circuit law precludes both these potential remedies, and Mr. Dorris provides us with no argument sufficient to overturn these decisions.

Statutes are presumed constitutional. United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1748 (2000) (citing United States v. Harris, 106 U.S. 629, 635 (1883)). We review challenges to the constitutionality of a statute de novo. United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995).

The Commerce Clause gives Congress power "[t]o regulate Commerce with foreign Nations, among the several states, and with the Indian Tribes." U.S. CONST. art. I, 8, cl. 3. Mr. Dorris was convicted under 18 U.S.C. 922(g), which he argues lies beyond Congressional authority under the Commerce power. Section 922(g) reads in relevant part:

It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In 1977, the Supreme Court passed on the very question Mr. Dorris presents us, holding proof the possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between the possession of a firearm by a felon and commerce. Scarborough v. United States, 431 U.S. 563, 577 (1977). Nevertheless, Mr. Dorris asserts three subsequent Supreme Court decisions interpreting the boundaries of Congressional power under the Commerce Clause cast doubt on the continuing vitality of Scarborough. Those decisions are United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), and Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904 (2000).

In Lopez, the Supreme Court struck down the "Gun-Free School Zone Act," 18 U.S.C. 922(q)(1)(a), holding it exceeded Congressional power under the Commerce Clause because the Act did not regulate a commercial activity (possession of a gun near a school) nor did it contain a requirement the possession of a firearm in a school zone be connected in any way to interstate commerce. Lopez, 514 U.S. at 567-68. Lopez recognized three broad areas which Congress may regulate under the Commerce Clause: 1) channels of interstate commerce; 2) instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may only come from intrastate activities; and 3) activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-59. This Court's decision in United States v. Bolton, 68 F.3d 396 (10th Cir. 1995) (holding 922(g)(1) a valid exercise of the commerce power because it required the firearm to have traveled in interstate commerce), foreclosed any appeal of Mr. Dorris' conviction based solely on the Lopez decision. We also examined 922(g)(1)'s application post-Lopez in United States v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996), where the appellant argued the government must show the possession of the firearm had substantial effect on interstate commerce. We rejected that argument, holding an individualized showing of substantial effect on commerce was unnecessary. Farnsworth, 92 F.3d at 1006. Nevertheless, Mr. Dorris argues the effect of Lopez, when combined with Morrison and Jones, calls for us to overturn our decisions in Bolton and Farnsworth.

In Morrison, the Court struck down the civil remedy provision of the Violence Against Women Act (VAWA), 42 U.S.C. 13981(b), holding it exceeded Congressional authority to regulate interstate commerce. Morrison, 120 S. Ct. at 1754. In so doing, the Court specifically rejected the "argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. The Court went on to say:

In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428, 5 L.Ed. 257 (1821) (Marshall, C.J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear . . . that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.

Id.

In Jones, the Court held the federal arson statute, 18 U.S.C. 844(I), which makes it a federal crime to destroy a building used in interstate commerce or in an activity affecting interstate commerce by means of fire or explosives, does not reach an owner occupied residence not used for any commercial purpose. Jones, 120 S. Ct. at 1912. The Court reasoned the building in question needed a more substantial connection to interstate commerce than consuming goods moved in interstate commerce or obtaining financing from an out-of-state company to come within the statute. Id. Otherwise, "hardly a building in the land would fall outside the federal statute's domain." Id. at 1911.

Despite the presence of some language favorable to Mr. Dorris' cause in Morrison and Jones, neither Morrison nor Jones or both, taken in combination with Lopez, compel this Court to overturn its decisions in Bolton or Farnsworth. Missing from Mr. Dorris' analysis is the recognition while Lopez and Morrison were questions concerning the power of Congress to regulate activities substantially affecting interstate commerce, 922(g)(1) regulates the possession of goods moved in interstate commerce. The jurisdictional element in 922(g)(1) puts it into a different category of analysis than the laws considered in Lopez and Morrison. Section 922(g)(1) by its language only regulates those weapons affecting interstate commerce by being the subject of interstate trade. It addresses items sent in interstate commerce, and the channels of commerce themselves--ordering they be kept clear of firearms. Thus, no analysis of the style of Lopez or Morrison is appropriate.

Jones adds little to this analysis. While the law challenged in Jones, the federal arson statute, did have a jurisdictional element, the challenge was as applied...