### The Honorable Stephen M. Reasoner, United States Distric t 1 

### Judge for the Eastern District of Arkansas. ___________ No. 95-2280

___________ United States, * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Phillip Wilson Bates, * * Defendant-Appellant. *

___________ Submitted: November 14, 1995 Filed: March 5, 1996

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

___________ FLOYD R. GIBSON, Circuit Judge.

Ph illip Bates challenges his conviction and sentence for being a 1 felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1 ) (1988). We affirm.

I. BACKGROUND

On Ja nuary 1, 1994, United States Fish and Wildlife Special Agen t Darwin Huggins was ma king 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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oth er individuals, Mike Harris and Deborah Hamilton, as well as huntin g equip ment, duck decoys, dead ducks, and two shotguns, one of which wa s located nearest to Bates. All three occupants were dressed in chest wader s and hunting clothes.

Spe cial Agent Huggins, who had been on the lookout for Bates , identified himself as a law enforcement officer and asked to make a routin e inspection of their licenses, guns, and ducks. Special Agent Huggins aske d who ha d killed the ducks, and Harris stated that the ducks were his

. Special Agent Huggins then asked to whom the two firearms belonged. Harri s stated that one of the guns belonged to him. When Special Agent Huggins then asked Bates if the second gun belonged to h im, Bates admitted that it did.
Special Agent Huggins then asked to inspect their hunting permits

. Bates p roduced an Arkansas hunting license, two duck stamps, a hunte r education certificate, and a Cache River huntingpermit. The reverse side of Bates's hunter edu cation certificate bore the legend "Arkansas Outdoor Guide Services - Singles, Groups, and Families, Phillip Bates." Bates tol d Special Agent Huggins that he had been hunting, but that Hamilton had not bec ause she did not have a valid license or duck stamp. Special Agen t Huggins then told Bates that he needed to check their guns and asked him whichone was his. Bates picked up the gun nearest him, a Sportsman 12- gauge pump Magnum shotgun, told Special Agent Hu ggins that it was his, and handed it to Special Agent Huggins. After inspecting the firearms, Specia l Agent Huggins asked to inspect their shells. In response, Bates hande d
over eleven rounds of 12-gauge shotgun shells from his belt and variou s pockets, a ll of which matched the firearm he had handed Special Agen t Huggins. Special Agent Huggins then asked Bates to accompany him to the parking l ot where he placed Bates under arrest for being a felon i n pos session of a firearm. At this point, Bates recanted his story an d denie d that he had been hunting, claiming instead that his shotgun wa s 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 foreig n com merce, or possess in or affecting commerce, any firearm o r 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 violate s 3 

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

. . . for a violent felony or a serious drug offense, or both , co mmitted on occasions different from one another, such perso n shall be fined not more than $25,000 an d imprisoned not less than fifteen years . . . ."
3 Bates was charged with being a felon in possession of a firearm i n violat ion of 18 U.S.C. § 922(g)(1), tried before a jury, and convicted

. 2 The district court found that Bates had two prior serious drug offenses an d
one prior violent felony and sentenced him to fifteen years imprisonment pursu ant to 18 U.S.C. § 924(e)(1). The district court also sentence d 3 Bates to three years supervised release and imposed a fine of $12,500

. Bates challenges the constitutionality of his conviction under the Commerc e Clause , the sufficiency of the evidence supporting his conviction, an d 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 issu e seriatim.

II. DISCUSSION

A. Commerce Clause

Bate s first argues that his conviction is the result of a n
unco nstitutional application of 18 U.S.C. § 922(g)(1). Based on th e 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 Claus e to c riminalize the mere possession of a firearm that has traveled i n interstate commerce absent the showing of a more substantial impact o n interstate commerce. "We review federal

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constitutional questions de novo." United State s v. Johnson , 56 F.3d 947, 953 (8th Cir. 1995).

We believe that Bates reads Lopez too broadly. In that decisio n, the Sup reme 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 t o knowingly possess a f irearm 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 broa d catego ries of activity that Congress may regulate under its commerc e power." Id. at 1629. Those categories are: (1) the power to regulate the use of the channels o f interstate commerce; (2) the power to regulate and protect the instrumentalities of interstate comm erce, or persons or things in interstate commerce, even though the threat may come from intrastat e activities; and (3) the power to regulate those activities having a substantial relation to interstate commerce. Id. at 1629-30. In case s challenging Congress' lawmaking power under the third category, the Court concluded that the "the proper test requires an analysis of whether th e regulated activity 'substantially affects' interstate commerce." Id. at 1630.
Categoriz ing the Gun-Free School Zones Act under the third heading, the Co urt determined that the Act exceeded Congress' Commerce Claus e author itybecause it neither regulated a commercial activity that coul d potentially have a substantial effect on interst ate 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-cas e inqui ry, that the firearm possession in question affects interstat e
com merce." Id. at 1630-31. We do not believe, however, that sectio n 922(g)(1) suffers fro m the same defect. Unlike the Gun-Free School Zones Act, an individual ca se under section 922(g)(1) may fall under either the second or the third categories identified in Lop ez , 115 S. Ct. at 1629-30. United States v. Mosby , 60 F.3d 454, 455 (8th

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Cir. 19 95), petition for cert. filed on Dec 4, 1995 (No. 95-7053). An d unlike the Gun-Free School Zones Act, section 922(g) contains the same typ e of "express jurisdictional element which might limit its reach to a discre te set of firearm possessions that additionally have an explici t connection with or effect on interstate commerce" approved in Bass
. Lopez , 115 S. Ct. at 1631.

Bates arg ues that the jury instructions, which required the jury to find that the shotgun possessed by him had previously traveled i n interstate commerce, were insufficient to establish the required nexus to interstate commerce r equired by Lopez . We have already squarely rejected this argument in United States v. Shelton , 66 F.3d 991 (8th Cir. 1993) (pe r 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 (quotin g Scarboroughv. 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 wa s
man ufactured in New York satisfied section 922(g)(1)'s jurisdictiona l nexus), cert . denied , 116 S. Ct. 577 (1995). As such, we find th e ap plication of section 922(g)(1) to Bates's conduct eminentl y constitutional.

B. Sufficiency of the Evidence

Bates next attacks the sufficiency of the evidence underlying hi s conviction. Specific ally, he alleges that the Government failed to prove that he actually possessed the firearm in question as opposed to merel y 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 evi dence in the light most favorable to the government, resolvin g eviden tiaryconflicts in favor of the government, and accepting al l
reason able 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. 121 1 (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 guil t beyond a reasonable doubt." Id.

We be lieve that there was sufficient evidence that Bates was i n possession of the firearm in question. The dead ducks, the camouflage d net ting, the decoys, the chest waders, the hunting apparel, the shotgu n shells found on his person, Bates's admitted own ership of the shotgun, and his initial admission that he had in fact been duck hunting all support th e jury's guilty verdict. Bates argues that the jury could have reasonably inferred f rom this evidence that he was merely acting as a wildernes s guide, and that his initial admission that he ha d 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 fairl y pres ented to and rejected by the jury. "[I]t is not our function as a review ing court to reverse based on a recognition of alternat e possibilities." Unit ed 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 ot herwise predisposed -- i.e., willing and ready -- to commi t 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 dif ferent, it is not our role to second-guess the jury's factual determination s. Id. at 1088. Based on the strong circumstantial evidence that Bates had in fact been duck huntin g with the shotgun as w ell as Bates's own admission, we cannot say that the jury's rejection of Bates's entrapment defense is unsupported by sufficien t evidence.

### 7 C. Due Process

Bates cla ims that he was denied due process at the sentencing phase because he received no formal notice in the indi ctment 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 convi ctions for a violent felony or serious drug offense. Because both the indictment and the judgment referred to section 924(a)(2) , whichprovides a maximum sentence of ten years imprisonment, rather than section 924(e)(1), Ba tes claims that he can constitutionally be sentenced to no m ore than the ten years provided in section 924(a)(2). We revie w this constitutional claim de novo. Johnson , 56 F.3d at 953.

References in the indictment to sentence enhancements such as s ection 924(e) are "mere surplusage" and "may be disregarded if the remainin g al legations are sufficient to charge a crime." United States v

. Washington , 992 F.2d 785, 787 (8th Cir.) (quotation omitted), cert. denied , 114 S. C t. 356 (1993). Although surplusage, such language in th e indictment "serves a valid and useful purpose in that it gives notice to the defendant from the start that the government intends to seek th e enha nced sentence if the defendant is convicted." Id. Assuming du e pro cess requires notice to the defendant that the government intends t o enhance his sentence under a specific statutory provision, we believe that Bates received adequa te 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 co nvictions and to challenge the requirements of § 924(e)(1)." United States v. Adail , 30 F.3d 1046, 1047 (8 th Cir.) (per curiam), cert. denied , 115 S. Ct. 653 (1994). Th e 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 tha t he should not have 4 

### been sentenced under section 9 24(e)(2) because the Government only proved two of the required thr ee felonies at trial. As previously observed, however, Bates neither objected to nor disputed th e ex istence of the third felony which was fully set forth in th e presentence investigation report.
8 sepa rate phase of the criminal process, notice of which offenses th e 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 notic e defici encywould have been harmless because Bates never disputed th e applicabilityor the existence of his three prior felonies at any poin t during his sentencing. Adail , 30 F.3d at 1047. 4

D. Double Jeopardy

Bates next contends that the district court violated the Fift h 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 substantiv e offense under section922(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 Fi fth Amendment's Double Jeopardy Clause protects agains t 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 o f a defendant's prior convictions to establish his status as a
con victed felon for purposes of section 922(g)(1) does not constitute a second conviction and punishment for double jeopardy purposes. Unite d States v . Phillips , 432 F.2d 973, 975 (8th Cir. 1970) ("The prio r 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 us e of interstate commerce to transport firearms has been forbidden.").

This Court has similarly rejected the idea that the use of a def endant'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)); U nited States v. Thomas , 895 F.2d 1198, 1201 (8th Cir. 1990 ) ("Habitual offender statutes do not subject a defendant to a secon d conviction or punishment for prior offenses. Rather, the repeat offender' s prior convictions are considered to be an aggravating factor that justifie s imposing a heavier sentence for his or her present offense.").

Where nei ther 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 C ircuit concluded in United States v. Wallace , 889 F.2d 580, 584 (5th Cir. 1989), cert. denied , 49 7 U.S. 1006 (1990), "Consideration of the same felony to convict unde r section 922(g) and to enhance punishment under section 924(e)(1) is neithe r a double prosecution nor a double punishment."

E. Ineffective Assistance of Counsel

Bates all eges that he received ineffective assistance of counsel at trial because his attorney failed to object to certain testimony. Suc h 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 no t unmindful of the apparent absurdity in sentencing a n indivi dual to fifteen years imprisonment for the equivalent of duc k hunting. We are equa lly aware, however, that Congress has tied our hands and re moved a much-needed measure of judicial discretion through it s enactment of the fifteen year mandatory minimum provision of § 924(e)(1) of the Arm ed Career Criminal Act. For the aforementioned reasons, w e affirm Bates's conviction and sentence.

A true copy.

Attest:

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