The Honorable Stephen M. Reasoner, United States District

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Judge for the Eastern District of Arkansas.

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No. 95-2280

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United States, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Phillip Wilson Bates, *

*

Defendant-Appellant. *

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 Submitted: November 14, 1995

 Filed: March 5, 1996

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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________

FLOYD R. GIBSON, Circuit Judge.

Phillip Bates challenges his conviction and sentence for being a

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felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(1988). We affirm.

I. BACKGROUND

On January 1, 1994, United States Fish and Wildlife Special Agent

Darwin Huggins was making routine equipment and hunting license checks on

a boat ramp on the Cache River in Arkansas when a boat occupied by Phillip

Bates pulled up. The boat contained two
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other individuals, Mike Harris and Deborah Hamilton, as well as hunting

equipment, duck decoys, dead ducks, and two shotguns, one of which was

located nearest to Bates. All three occupants were dressed in chest waders

and hunting clothes. 

Special Agent Huggins, who had been on the lookout for Bates,

identified himself as a law enforcement officer and asked to make a routine

inspection of their licenses, guns, and ducks. Special Agent Huggins asked

who had killed the ducks, and Harris stated that the ducks were his.

Special Agent Huggins then asked to whom the two firearms belonged. Harris

stated that one of the guns belonged to him. When Special Agent Huggins

then asked Bates if the second gun belonged to him, Bates admitted that it

did. 

Special Agent Huggins then asked to inspect their hunting permits.

Bates produced an Arkansas hunting license, two duck stamps, a hunter

education certificate, and a Cache River hunting permit. The reverse side

of Bates's hunter education certificate bore the legend "Arkansas Outdoor

Guide Services - Singles, Groups, and Families, Phillip Bates." Bates told

Special Agent Huggins that he had been hunting, but that Hamilton had not

because she did not have a valid license or duck stamp. Special Agent

Huggins then told Bates that he needed to check their guns and asked him

which one was his. Bates picked up the gun nearest him, a Sportsman 12-

gauge pump Magnum shotgun, told Special Agent Huggins that it was his, and

handed it to Special Agent Huggins. After inspecting the firearms, Special

Agent Huggins asked to inspect their shells. In response, Bates handed

over eleven rounds of 12-gauge shotgun shells from his belt and various

pockets, all of which matched the firearm he had handed Special Agent

Huggins. Special Agent Huggins then asked Bates to accompany him to the

parking lot where he placed Bates under arrest for being a felon in

possession of a firearm. At this point, Bates recanted his story and

denied that he had been hunting, claiming instead that his shotgun was

being used by Hamilton. 
 18 U.S.C. § 922(g) provides that is shall be unlawful for a 2

convicted felon "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." 

 18 U.S.C. § 924(e)(1) provides that "a person who violates

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section 922(g) of this title and has three previous convictions

. . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person

shall be fined not more than $25,000 and imprisoned not less than

fifteen years . . . ." 

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Bates was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), tried before a jury, and convicted.

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The district court found that Bates had two prior serious drug offenses and

one prior violent felony and sentenced him to fifteen years imprisonment

pursuant to 18 U.S.C. § 924(e)(1). The district court also sentenced

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Bates to three years supervised release and imposed a fine of $12,500.

Bates challenges the constitutionality of his conviction under the Commerce

Clause, the sufficiency of the evidence supporting his conviction, and

alleges that he received ineffective assistance of trial counsel. Bates

also claims that his sentence violates the Fifth Amendment's guarantee of

due process and prohibition against double jeopardy. We address each issue

seriatim.

II. DISCUSSION

A. Commerce Clause

Bates first argues that his conviction is the result of an

unconstitutional application of 18 U.S.C. § 922(g)(1). Based on the

Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624

(1995), he contends that Congress lacks the power under the Commerce Clause

to criminalize the mere possession of a firearm that has traveled in

interstate commerce absent the showing of a more substantial impact on

interstate commerce. "We review federal
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constitutional questions de novo." United States v. Johnson, 56 F.3d 947,

953 (8th Cir. 1995). 

We believe that Bates reads Lopez too broadly. In that decision, the

Supreme Court held that the Gun-Free School Zones Act, 18 U.S.C. §

922(q)(1)(A) (Supp. 1993), a measure which made it a federal crime to

knowingly possess a firearm in a school zone, exceeded Congress' power to

regulate interstate commerce under the Commerce Clause. Lopez, 115 S. Ct.

at 1626. In reaching its decision, the Court "identified three broad

categories of activity that Congress may regulate under its commerce

power." Id. at 1629. Those categories are: (1) the power to regulate the

use of the channels of interstate commerce; (2) the power to regulate and

protect the instrumentalities of interstate commerce, or persons or things

in interstate commerce, even though the threat may come from intrastate

activities; and (3) the power to regulate those activities having a

substantial relation to interstate commerce. Id. at 1629-30. In cases

challenging Congress' lawmaking power under the third category, the Court

concluded that the "the proper test requires an analysis of whether the

regulated activity 'substantially affects' interstate commerce." Id. at

1630. 

Categorizing the Gun-Free School Zones Act under the third heading,

the Court determined that the Act exceeded Congress' Commerce Clause

authority because it neither regulated a commercial activity that could

potentially have a substantial effect on interstate commerce nor contained

the type of express jurisdictional element approved in United States v.

Bass, 404 U.S. 336 (1971), "which would ensure, through case-by-case

inquiry, that the firearm possession in question affects interstate

commerce." Id. at 1630-31. We do not believe, however, that section

922(g)(1) suffers from the same defect. Unlike the Gun-Free School Zones

Act, an individual case under section 922(g)(1) may fall under either the

second or the third categories identified in Lopez, 115 S. Ct. at 1629-30.

United States v. Mosby, 60 F.3d 454, 455 (8th
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Cir. 1995), petition for cert. filed on Dec 4, 1995 (No. 95-7053). And

unlike the Gun-Free School Zones Act, section 922(g) contains the same type

of "express jurisdictional element which might limit its reach to a

discrete set of firearm possessions that additionally have an explicit

connection with or effect on interstate commerce" approved in Bass. Lopez,

115 S. Ct. at 1631.

Bates argues that the jury instructions, which required the jury to

find that the shotgun possessed by him had previously traveled in

interstate commerce, were insufficient to establish the required nexus to

interstate commerce required by Lopez. We have already squarely rejected

this argument in United States v. Shelton, 66 F.3d 991 (8th Cir. 1993) (per

curiam). "To satisfy the interstate commerce element of section 922(g),

it is sufficient that there exists 'the minimal nexus that the firearm[s]

have been, at some time, in interstate commerce.'" Id. at 992 (quoting

Scarborough v. United States, 431 U.S. 563, 575 (1977)); see also United

States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam) (Government's

evidence that sawed off shotgun possessed by felon in Missouri was

manufactured in New York satisfied section 922(g)(1)'s jurisdictional

nexus), cert. denied, 116 S. Ct. 577 (1995). As such, we find the

application of section 922(g)(1) to Bates's conduct eminently

constitutional.

B. Sufficiency of the Evidence

Bates next attacks the sufficiency of the evidence underlying his

conviction. Specifically, he alleges that the Government failed to prove

that he actually possessed the firearm in question as opposed to merely

owning it. He argues alternatively that he was the victim of entrapment.

"In reviewing the sufficiency of the evidence on appeal, the court views

the evidence in the light most favorable to the government, resolving

evidentiary conflicts in favor of the government, and accepting all

reasonable inferences drawn from the evidence that support the jury's

verdict." United
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States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211

(1992). "The jury's verdict must be upheld if there is an interpretation

of the evidence that would allow a reasonable-minded jury to conclude guilt

beyond a reasonable doubt." Id.

 We believe that there was sufficient evidence that Bates was in

possession of the firearm in question. The dead ducks, the camouflaged

netting, the decoys, the chest waders, the hunting apparel, the shotgun

shells found on his person, Bates's admitted ownership of the shotgun, and

his initial admission that he had in fact been duck hunting all support the

jury's guilty verdict. Bates argues that the jury could have reasonably

inferred from this evidence that he was merely acting as a wilderness

guide, and that his initial admission that he had been hunting was no more

than a misguided attempt to protect his client, Deborah Hamilton, who he

claims had been hunting without a license. But this alternative was fairly

presented to and rejected by the jury. "[I]t is not our function as a

reviewing court to reverse based on a recognition of alternate

possibilities." United States v. O'Malley, 854 F.2d 1085, 1088 (8th Cir.

1988). 

Bates's entrapment defense raises a question of fact, namely "whether

the government agent caused or induced the defendant to commit a crime he

was not otherwise predisposed -- i.e., willing and ready -- to commit

whenever a propitious opportunity arose." Id. at 1088 (quotation omitted).

The jury was properly instructed on this issue and summarily rejected it

as well. While its decision could have been different, it is not our role

to second-guess the jury's factual determinations. Id. at 1088. Based on

the strong circumstantial evidence that Bates had in fact been duck hunting

with the shotgun as well as Bates's own admission, we cannot say that the

jury's rejection of Bates's entrapment defense is unsupported by sufficient

evidence.
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C. Due Process

Bates claims that he was denied due process at the sentencing phase

because he received no formal notice in the indictment or judgment that he

would be sentenced under 18 U.S.C. § 924(e)(2), which mandates a minimum

fifteen-year sentence for a defendant convicted under section 922(g) who

has three prior convictions for a violent felony or serious drug offense.

Because both the indictment and the judgment referred to section 924(a)(2),

which provides a maximum sentence of ten years imprisonment, rather than

section 924(e)(1), Bates claims that he can constitutionally be sentenced

to no more than the ten years provided in section 924(a)(2). We review

this constitutional claim de novo. Johnson, 56 F.3d at 953. 

References in the indictment to sentence enhancements such as section

924(e) are "mere surplusage" and "may be disregarded if the remaining

allegations are sufficient to charge a crime." United States v.

Washington, 992 F.2d 785, 787 (8th Cir.) (quotation omitted), cert. denied,

114 S. Ct. 356 (1993). Although surplusage, such language in the

indictment "serves a valid and useful purpose in that it gives notice to

the defendant from the start that the government intends to seek the

enhanced sentence if the defendant is convicted." Id. Assuming due

process requires notice to the defendant that the government intends to

enhance his sentence under a specific statutory provision, we believe that

Bates received adequate notice nonetheless. Two of the three convictions

relied upon to enhance his sentence were proven at trial. The other was

fully set out in the presentence investigation report, leaving Bates with

"ample opportunity to investigate his earlier convictions and to challenge

the requirements of § 924(e)(1)." United States v. Adail, 30 F.3d 1046,

1047 (8th Cir.) (per curiam), cert. denied, 115 S. Ct. 653 (1994). The

absence of any prior notice could not have affected the fairness of Bates's

sentencing. Because sentencing is a
 In a related argument, Bates contends that he should not have 4

been sentenced under section 924(e)(2) because the Government only

proved two of the required three felonies at trial. As previously

observed, however, Bates neither objected to nor disputed the

existence of the third felony which was fully set forth in the

presentence investigation report.

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separate phase of the criminal process, notice of which offenses the

Government would be able to rely on in order to enhance Bates's sentence

became relevant only at the sentencing stage. United States v. McMurray,

20 F.3d 831, 833-34 (8th Cir. 1994). Furthermore, any potential notice

deficiency would have been harmless because Bates never disputed the

applicability or the existence of his three prior felonies at any point

during his sentencing. Adail, 30 F.3d at 1047. 4

 D. Double Jeopardy

Bates next contends that the district court violated the Fifth

Amendment's prohibition against double jeopardy by punishing him twice for

the same offenses. Specifically, he challenges the constitutionality of

using his prior felony convictions both to establish his substantive

offense under section 922(g)(1) and to enhance his sentence under section

924(e)(1). We review this constitutional challenge de novo. Johnson, 56

F.3d at 953. 

The Fifth Amendment's Double Jeopardy Clause protects against

multiple prosecutions and punishments for the same offense. Illinois v.

Vitale, 447 U.S. 410, 415 (1980). Bates, however, was neither prosecuted

nor punished more than once for the same offense. It is well-settled that

the use of a defendant's prior convictions to establish his status as a

convicted felon for purposes of section 922(g)(1) does not constitute a

second conviction and punishment for double jeopardy purposes. United

States v. Phillips, 432 F.2d 973, 975 (8th Cir. 1970) ("The prior

conviction was permitted to be proved only . . . for the purpose of
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establishing [the defendant's] status as member of a class to which the use

of interstate commerce to transport firearms has been forbidden.").

This Court has similarly rejected the idea that the use of a

defendant's prior convictions to enhance his sentence subjects him to a

second conviction or punishment for the same offenses. Id. (citing Davis

v. Bennett, 400 F.2d 279, 282 (8th Cir. 1968), cert. denied, 395 U.S. 980

(1969)); United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990)

("Habitual offender statutes do not subject a defendant to a second

conviction or punishment for prior offenses. Rather, the repeat offender's

prior convictions are considered to be an aggravating factor that justifies

imposing a heavier sentence for his or her present offense."). 

Where neither practice constitutes double punishment or prosecution

individually, we see no reason why they would offend the Double Jeopardy

Clause when used in conjunction. As the Fifth Circuit concluded in United

States v. Wallace, 889 F.2d 580, 584 (5th Cir. 1989), cert. denied, 497

U.S. 1006 (1990), "Consideration of the same felony to convict under

section 922(g) and to enhance punishment under section 924(e)(1) is neither

a double prosecution nor a double punishment." 

E. Ineffective Assistance of Counsel 

Bates alleges that he received ineffective assistance of counsel at

trial because his attorney failed to object to certain testimony. Such

claims are not generally cognizable on direct appeal unless the district

court has developed a record on the ineffectiveness issue. United States

v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994). Because no such record is

available to us, we decline to address this claim.
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III. CONCLUSION

We are not unmindful of the apparent absurdity in sentencing an

individual to fifteen years imprisonment for the equivalent of duck

hunting. We are equally aware, however, that Congress has tied our hands

and removed a much-needed measure of judicial discretion through its

enactment of the fifteen year mandatory minimum provision of § 924(e)(1)

of the Armed Career Criminal Act. For the aforementioned reasons, we

affirm Bates's conviction and sentence.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.