2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2013

USA v. Nathaniel Benjamin

Precedential or Non-Precedential: Precedential

Docket No. 11-2906

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Recommended Citation

"USA v. Nathaniel Benjamin" (2013). 2013 Decisions. Paper 1043.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2906

_____________

UNITED STATES OF AMERICA

v.

NATHANIEL BENJAMIN, 

a/k/a James Burch

NATHANIEL BENJAMIN,

 Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-10-cr-00131-001)

District Judge: Hon. Berle M. Schiller

Argued: September 11, 2012

____________

Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

(Filed: March 26, 2013)

Sarah S. Gannett, Esq. (Argued)

Brett G. Sweitzer, Esq.

Leigh M. Skipper, Esq.

Federal Community Defender Office for the Eastern District 

of Pennsylvania

Suite 540 West – Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Attorneys for Appellant
2

Zane David Memeger, Esq.

Robert A. Zauzmer, Esq.

Eric B., Henson, Esq. (Argued)

Office of the Attorney General

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

____________

OPINION 

___________

CHAGARES, Circuit Judge.

Nathaniel Benjamin raises four issues on appeal from

the District Court‘s judgment of conviction and sentence. 

First, Benjamin argues that there was insufficient evidence 

supporting one of his felon-in-possession convictions and his 

conviction for possession with intent to distribute marijuana 

and cocaine base. Second, Benjamin contends that if the 

evidence was sufficient to convict him of gun possession in 

the house, then his conviction on that count should have 

merged with his conviction on another felon-in-possession 

charge involving the same gun at a gun range. Third, 

Benjamin argues the District Court abused its discretion by 

allowing repeated references at trial to Benjamin‘s parole 

status. Fourth, Benjamin contends that the felon-inpossession statute is facially unconstitutional or, in the 

alternative, unconstitutional as applied to him. For the 

reasons that follow, we will affirm the judgment of the 

District Court in part and remand in part.

I.

At the time of his arrest, Benjamin was on parole and 

living with his fiancée, Stacy Esprit, her four children, and 

her infant grandchild in Norristown, Pennsylvania. Benjamin 

supplemented his income by buying and refurbishing cars. 

Although his own driver‘s license was suspended, he obtained 

a license under the name ―James Burch,‖ using his own 

photograph. Benjamin‘s parole officer, who knew that 
3

Benjamin‘s driver‘s license had been suspended, observed 

Benjamin driving, and he organized a search of Esprit‘s home 

where Benjamin was residing.

In the search of the master bedroom, agents found a 

bag underneath the foot of the bed containing hearing and eye 

protection, targets from a shooting range, receipts for 

ammunition, a postcard with Benjamin‘s name and address on 

it, and a handgun trigger lock. Agents found a box of 9 

millimeter ammunition next to maxi-pads and a gold purse in 

the master bedroom closet. On the right side of the bed, 

agents found an envelope containing car titles in the name of

James Burch, as well as the James Burch driver‘s license, an 

identification card for Nathanial Benjamin, Benjamin‘s social 

security card, and receipts for payment on an auto loan for 

James Burch. Agents also found a notebook that, according 

to the Government‘s narcotics trafficking expert, contained 

car information, cell phone information, and illegal drug 

information. The District Court sustained some objections to 

the expert‘s testimony as speculative, but allowed him to 

testify that he understood the ledger to contain information 

about illegal drugs as well as other items. Agents also found 

a digital cooking scale just to the right of the bed, which 

Esprit testified she did not recognize. 

In the basement, Esprit directed agents to a loaded 9 

millimeter Kel-Tec handgun in a black bag underneath a 

flowered blanket. The bag also contained Esprit‘s permit to 

carry a concealed handgun and a box of empty ammunition. 

At trial, Esprit testified that she had the gun on her person and 

was folding laundry in the basement when the agents knocked 

at the door. When she came upstairs, Benjamin told her that 

his parole officer was at the door, at which point she went 

back to the basement and put the gun on the table with clothes 

on top of it. Esprit also testified that she knew Benjamin was 

not allowed to be in the vicinity of a gun, and explained that 

she always carried the gun with her and had loaded it with 

ammunition that day because she was planning on going to 

the shooting range. 

At trial, Esprit explained that she had gone with 

Benjamin to purchase the handgun for herself because she 

wanted to be able to protect herself from an abusive ex-
4

spouse who was soon to be released from prison, and that 

Benjamin suggested a different model than the gun she 

purchased. According to Esprit, the day after the gun 

purchase, Benjamin accompanied her to the gun range where 

he used the name James Burch to fill out paperwork. Esprit‘s 

testimony that Benjamin fired two clips at the range forms the 

basis for Benjamin‘s first conviction of being a felon in 

possession of a firearm. 

Also in the basement, agents discovered a pit bull in a 

cage and, stacked by the back door, the stereo and car 

equipment Benjamin used to fix cars. In ceiling joists near 

the back door, agents found bags containing 6.62 grams of 

cocaine base and 326.93 grams of marijuana. Esprit denied 

any knowledge of the drugs in the basement. She testified 

that none of her children had ever had any problems with 

drugs and that she had a zero tolerance policy for drugs. She 

also stated that her granddaughter‘s father, her two godsons,

and their friend used to visit the house and would congregate 

in the basement to play pool and air hockey. 

When they searched the kitchen, agents found an open 

box of nitrile gloves, which Esprit testified she used for 

cleaning. In Benjamin‘s cars, agents also found latex and 

nitrile gloves. The Government‘s narcotics expert testified 

that individuals on parole used those types of gloves when 

packaging narcotics so that they would not be caught with 

drugs present in their system in a random drug test. He also

testified that the facts and circumstances of the case were 

consistent with distribution rather than personal use. He 

based his opinion on how the drugs were packaged, the 

amount of drugs, the presence of the scale, and the lack of 

any crack pipe in the house. The drug expert further stated 

that he believed Benjamin to be the drug dealer based on the 

nitrile gloves in Benjamin‘s car, Benjamin‘s familiarity with 

guns, the presence of the pit bull, Benjamin‘s use of the alias 

―James Burch,‖ Benjamin‘s use of multiple vehicles 

registered to the alias, and the presence of the notebook that

the expert believed to be a drug ledger. 

Benjamin was charged with one count of possession 

with intent to distribute five grams or more of cocaine base, 

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); one count of 
5

possession with intent to distribute marijuana, in violation of 

21 U.S.C. §§ 841(a)(1), (b)(1)(D); and two counts of 

possession of a firearm by a convicted felon, in violation of 

18 U.S.C. § 922(g)(1).1 The case was tried to a jury, with the 

felon-in-possession charges bifurcated from the first set of 

charges. Benjamin was convicted on all counts on March 9, 

2011. 

Benjamin filed a post-trial motion challenging the 

sufficiency of the evidence and certain evidentiary rulings, 

which the District Court denied on July 5, 2011. On July 13, 

2011, the District Court sentenced Benjamin to twenty years 

of imprisonment, consisting of twenty years on the cocaine 

base count and ten years each on the other counts, running 

concurrently. The District Court further sentenced Benjamin 

to eight years of supervised release, consisting of eight years 

on the cocaine base count, four years on the marijuana count,

and three years on each felon-in-possession count, all to run 

concurrently, as well as a fine of $2,000 and a special 

assessment of $400. Benjamin timely appealed. 

II.

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231 and this Court has jurisdiction pursuant to 28 

U.S.C. § 1291. Benjamin raises four issues on appeal. We 

will address each in turn. 

A.

Benjamin does not challenge his conviction for being a 

felon in possession of a firearm at the gun range, but argues

that the Government‘s evidence on the second felon-inpossession charge, for possession inside the house, was

 

1

18 U.S.C. § 922(g)(1) provides, in pertinent part: ―It shall 

be unlawful for any person . . . 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.‖
6

insufficient. Benjamin further contends that the evidence 

offered to support his convictions on the counts of possession 

with intent to distribute drugs was insufficient. 

―In reviewing a jury verdict for sufficiency of the 

evidence, we  ̳must consider the evidence in the light most 

favorable to the government and affirm the judgment if there 

is substantial evidence from which any rational trier of fact 

could find guilt beyond a reasonable doubt.‘‖ United States 

v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (quoting United 

States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992)). 

The convictions on both the felon-in-possession charge 

for the gun in the house and the drug charges rested on a 

theory of constructive possession. Constructive possession

occurs when ― ̳[a] person who, although not in actual 

possession, knowingly has both the power and the intention at 

a given time to exercise dominion or control over a thing, 

either directly or through another person or persons.‘‖ United 

States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (quoting 

United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 

1991)). ―Dominion and control are not established, however, 

by  ̳mere proximity to the [item], or mere presence on the 

property where it is located or mere association with the 

person who does control the [item].‘‖ United States v. 

Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) (quoting Brown, 3 

F.3d at 680). ―Such dominion and control need not be 

exclusive but may be shared with others.‖ United States v. 

Davis, 461 F.2d 1026, 1035 (3d Cir. 1972).

In Brown, defendant Baltimore had a key to a ―cut 

house‖ where large quantities of illegal drugs were found. 

Brown, 3 F.3d at 680-81. Although she referred to the 

building as ―my own house,‖ and her shorts and switchblade 

were found on the premises, id. at 680, we noted that none of 

her possessions were found in a room where drugs were 

found, that her fingerprints were not found on any drugs or 

drug paraphernalia, and that there was no other evidence that 

she exerted any control over the drugs or drug paraphernalia. 

Accordingly, we held that the evidence of Baltimore‘s 

proximity was insufficient to establish constructive 

possession. Id. at 683. Benjamin cites this case to argue that 

his proximity was no greater than Baltimore‘s, and that 
7

therefore the evidence of constructive possession was 

similarly insufficient. 

Proximity, however, is not the only factor that courts 

consider in determining whether a defendant had constructive 

possession. Indeed, in Jenkins this Court warned that 

―proximity alone is not enough, no matter how near that 

proximity is,‖ and specified that ―[i]t is a serious misreading 

of [Brown] to conclude that the degree of proximity of 

Baltimore or her clothing to the drugs was a controlling 

factor.‖ Jenkins, 90 F.3d at 819-20. In that case, the 

defendant had been found in his boxer shorts at 1:30 a.m. on a 

couch with large quantities of drugs on a coffee table before 

him and a sawed-off shotgun on the floor, but the Court held 

that something more was required to show constructive 

possession. Id. at 821. 

We now consider whether there was ―more‖ evidence 

sufficient to show that Benjamin had the dominion and 

control necessary to establish constructive possession over the 

gun and drugs. In support of the felon-in-possession count, 

the Government contends that the jury was free to reject 

Esprit‘s testimony that the gun was for her sole use and that 

she kept it on her person at all times. Benjamin‘s control over 

the gun was demonstrated by the fact that it was found in the 

basement, along with the stereo and car equipment he used to 

repair cars outside the basement door. The gun box was 

found under the bed he shared with Esprit and the 

ammunition was stored in the closet of the room they shared. 

On the same side of the bed, agents discovered an envelope 

with documents tied to Benjamin. Furthermore, unlike in 

Brown and Jenkins where the defendants were merely shown 

to have been near drugs, there is direct evidence that 

Benjamin had used the gun in the past.

The Government further contends that Benjamin‘s 

dominion and control over the gun were demonstrated by 

Esprit‘s testimony that when Benjamin told her that his parole 

officer was at the door, she immediately hid the gun in the 

basement. The Government also argues that evidence that 

Benjamin was involved in the drug trade strengthened the 

conclusion that he had dominion and control over the gun. 

Based on this evidence, the District Court correctly held that, 
8

viewed in the light most favorable to the Government, there 

was sufficient evidence to support the second gun possession 

charge. 

In support of the drug convictions, the District Court 

noted that the drugs were found in a secreted location in the 

same area of the basement as Benjamin‘s stereo equipment 

and near the door he used to access the cars he was repairing. 

A scale, of which Esprit denied any knowledge, was found in 

the bedroom Benjamin and Esprit shared. Nitrile gloves were 

found in the kitchen and in a car registered to Benjamin‘s 

alias ―James Burch.‖ The jury was entitled to credit the 

Government expert‘s testimony that the notebook found 

beside Benjamin‘s bed in an envelope with paperwork 

bearing his name was, in part, a drug ledger. Although 

Benjamin argues that evidence showed that teenagers used 

the basement for recreation, suggesting that the drugs may 

have belonged to them, we are required to view the evidence 

in the light most favorable to the Government. The District 

Court correctly held that there was sufficient evidence on the 

drug charges, and thus, we will affirm. 

B.

Benjamin argues that if this Court determines that 

there was sufficient evidence to uphold his conviction for 

possession of the gun in the house, then that charge should 

merge with his conviction for possession of the gun at the gun 

range, which he does not otherwise challenge on appeal, 

because the two charges are duplicative and violate the 

Double Jeopardy Clause. Benjamin did not raise this issue in 

the District Court, so we review for plain error. United States 

v. Miller, 527 F.3d 54, 70 (3d Cir. 2008). We must determine 

whether entry of the two separate felon-in-possession 

convictions ―constitutes  ̳(1) error, (2) that is plain, and (3) 

that affect[s] substantial rights. If all three conditions are 

met, an appellate court may then exercise its discretion to 

notice a forfeited error, but only if (4) the error seriously 

affect[s] the fairness, integrity, or public reputation of judicial 

proceedings.‘‖ Id. (alteration in original) (quoting United 

States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001)). 
9

1.

We begin by considering whether the District Court‘s 

entry of separate convictions and sentences for possession of 

a firearm by Benjamin in violation of § 922(g)(1) constituted 

―error.‖ To answer that question, we must first consider 

whether the § 922(g)(1) felon-in-possession crime is a 

continuing offense. This is an issue of first impression in this 

Court, though our sister Courts of Appeals that have 

considered this issue have uniformly held that it is a 

continuing offense. See, e.g., United States v. Ellis, 622 F.3d 

784, 793-96 (7th Cir. 2010); United States v. Rivera, 77 F.3d 

1348, 1351-52 (11th Cir. 1996); United States v. Horodner, 

993 F.2d 191, 193-94 (9th Cir. 1993); United States v. Jones, 

533 F.2d 1387, 1390-92 (6th Cir. 1976).

Possession is generally understood as a course of 

conduct. Rivera, 77 F.3d at 1351; Horodner, 993 F.2d at 193; 

Jones, 553 F.2d at 1391. Accordingly, ―by prohibiting 

possession Congress intended to punish as one offense all of 

the acts of dominion which demonstrate a continuing 

possessory interest in a firearm.‖ Jones, 553 F.2d at 1391. 

We thus join our sister Courts of Appeals in holding that the 

felon-in-possession crime in § 922(g)(1) is a continuing 

offense. 

We now turn to the issue of whether Benjamin‘s two 

convictions for the possession of a single gun should merge 

into one. Because the felon-in-possession crime is 

continuing, charging and punishing a defendant twice for the 

same firearm requires an interruption in continuity of 

possession. Rivera, 77 F.3d at 1351 (―Where there is no 

proof that possession of the same weapon is interrupted, the 

Government may not arbitrarily carve a possession into 

separate offenses.‖); Horodner, 993 F.2d at 193 

(acknowledging ―that a new possession, separately 

chargeable, could begin if possession was interrupted‖); 

Jones, 533 F.2d at 1391 (holding defendant Jones could only 

be convicted of one count under § 922(g)(1) when there 

existed ―no proof that there was any interruption in the 

possession by Jones of the weapon‖). More specifically, 

continuity must be interrupted by ―relinquishment of both 
10

actual and constructive possession of the gun before it is 

reacquired.‖ Ellis, 622 F.3d at 794. 

The Government argues here that Benjamin‘s second 

gun possession conviction was based on constructive 

possession, which was interrupted when Benjamin was away 

from home because, while he was away from home, he would 

have lacked the ability to control the firearm that Esprit kept 

with her. As set forth earlier, physical proximity is not 

necessary to establish constructive possession. See Ellis, 622 

F.3d at 795 (concluding that evidence that the defendant was 

able to ―reacquire actual physical possession‖ of a gun from a 

fellow gang member suggested that the defendant had 

maintained constructive possession); Horodner, 993 F.2d at 

193-94 (holding that even though the defendant left a gun at a

repair shop, constructive possession remained because the 

defendant ―retained the right to possess and control it‖); cf.

Garth, 188 F.3d at 113 (noting that access is not sufficient to 

show constructive possession). Additionally, under the 

theory of joint possession, ― ̳dominion and control need not 

be exclusive but may be shared with others.‘‖ United States 

v. Introcaso, 506 F.3d 260, 271 (3d Cir. 2007) (quoting 

Davis, 461 F.2d at 1035). The fact that Esprit had actual 

possession of the gun and may not have always been with 

Benjamin, then, does not preclude Benjamin‘s constructive 

possession of the same weapon. 

The evidence supporting constructive possession — as 

explained more fully above — came not only from the 

presence of the gun in the couple‘s shared home, but also 

from Benjamin‘s participation in the gun purchase and 

Esprit‘s attempt to hide the gun when Benjamin warned her 

that his parole officer had arrived. See Davis, 461 F.2d at 

1034-36 (holding that a jury could reasonably infer 

possession in part from evidence that occupants of house 

containing drugs had unsuccessfully attempted to destroy the 

drugs before police entered). The jury did not hear evidence 

that Benjamin‘s possession of the gun was ever interrupted, 

and the Government may not simply rely on the fact that 

Esprit and Benjamin were not always at home together to 

show an interruption in possession that would permit a second 

conviction. Without evidence that Benjamin relinquished 

constructive possession of the gun, there could be only one 
11

possession conviction. As a result, we hold that the District 

Court committed error when it convicted and punished 

Benjamin for two separate counts of possession of a firearm 

by a convicted felon. 

2.

The Court must now determine whether the District 

Court‘s error was ―plain.‖ In United States v. Tann, 577 F.3d 

533 (3d Cir. 2009), this Court addressed the similar question 

of whether the district court committed plain error when it 

convicted the defendant of simultaneous possession of a 

firearm and ammunition at the same location, and concluded 

that it had. Id. at 537-43. Although the continuing nature of 

the conduct criminalized by the felon-in-possession statute is 

a matter of first impression for this Court, we hold that the 

District Court‘s error was plain. See id. at 537-38 (reasoning 

that although its holding regarding the ―allowable unit of 

prosecution under § 922(g) is a matter of first impression,‖ 

the district court‘s error was plain). In so holding, we 

reiterate that the Courts of Appeals that have addressed the 

question have uniformly held that § 922(g)(1) is a continuing 

offense. Further, the Government does not contest this legal 

conclusion.

3.

We next consider whether the error affected 

Benjamin‘s substantial rights. The Government argues that 

because Benjamin was sentenced to concurrent terms for the 

two felon-in-possession convictions, the only additional 

punishment stemming from the second conviction is a one 

hundred dollar special assessment, which does not affect 

Benjamin‘s substantial rights. However, as this Court 

recognized in Tann, the Supreme Court has made clear that 

even when a second conviction does not add time to a 

defendant‘s sentence, ― ̳the potential adverse collateral 

consequences‘‖ of an unauthorized conviction ― ̳may not be 

ignored‘‖ when determining whether a defendant‘s 

substantial rights have been affected. Id. at 538 (quoting Ball 

v. United States, 470 U.S. 856, 865 (1985)). While the 

second conviction may not have had the ―immediate practical 

effect‖ of increasing the length of his sentence, Benjamin 
12

does risk additional adverse consequences due to the second 

conviction, such as delayed parole, increased social stigma, or 

even a higher sentence under a recidivist statute if he were 

convicted of any future crimes. See Tann, 577 F.3d at 540. 

We therefore follow Tann, and hold that Benjamin‘s 

substantial rights were affected by the second conviction.

4.

Having determined that the error below was plain and 

affected Benjamin‘s substantial rights, we now examine 

whether the District Court‘s error ―seriously affect[ed] the 

fairness, integrity or public reputation of judicial 

proceedings‖ such that this Court should exercise its 

discretion to correct the error. United States v. Olano, 507 

U.S. 725, 732 (1993) (quotation marks and citations omitted). 

The arguably limited nature of the additional assessment does 

not erase the fact that Benjamin was saddled with an 

unauthorized conviction with the potential to cause him 

serious adverse consequences. ―[A]ny additional 

unauthorized conviction and its accompanying special 

assessment . . . seriously calls into question the fairness and 

integrity of judicial proceedings.‖ United States v. Lewis, 

660 F.3d 189, 196 (3d Cir. 2011). We hold that leaving the 

error uncorrected would seriously and detrimentally affect the 

fairness, integrity and public reputation of these proceedings 

and, therefore, it is appropriate for this Court to use its 

discretion to grant relief. 

C.

Benjamin argues that the District Court erred in 

allowing repeated references to his parole status in violation 

of Federal Rule of Evidence 404(b)(1), which prohibits the 

use of ―[e]vidence of a crime, wrong, or other act . . . to prove 

a person‘s character in order to show that on a particular 

occasion the person acted in accordance with the character.‖ 

We review the District Court‘s decision to admit evidence for

abuse of discretion. United States v. Cruz, 326 F.3d 392, 394 

(3d Cir. 2003). 

We have held that Rule 404(b) is a rule of inclusion 

rather than exclusion. United States v. Kellogg, 510 F.3d 
13

188, 197 (3d Cir. 2007). ―To be admissible under Rule 

404(b), evidence of uncharged crimes or wrongs must (1) 

have a proper evidentiary purpose; (2) be relevant; (3) satisfy 

Rule 403; and (4) be accompanied by a limiting instruction 

(where requested) about the purpose for which the jury may 

consider it.‖ United States v. Green, 617 F.3d 233, 249 (3d 

Cir. 2010).2 

We hold that Benjamin‘s parole status was admitted 

for a proper purpose under Rule 404(b) as ―helpful 

background.‖ See id. at 247 (―[A]llowing the jury to 

understand the circumstances surrounding the charged crime 

— completing the story — is a proper, non-propensity 

purpose under Rule 404(b).‖). As the District Court noted,

the trial could not have been conducted without the jury 

hearing that Benjamin was on parole. The Government 

correctly argues that the evidence of Benjamin‘s parole status

was relevant to the jury‘s understanding of why the search 

took place. The Government further correctly argues that the 

evidence was relevant to explain Benjamin‘s motive for using 

an alias, for using gloves to hide his drug trafficking activity,

and to explain Esprit‘s testimony that she hid the gun because 

she knew Benjamin was not allowed to be around firearms as 

a condition of his parole. See Cruz, 326 F.3d at 395 (―Here 

the government articulated the logical inferences that render 

Cruz‘s parole status relevant to establishing Cruz‘s motive, 

intent and method of concealing his illegal drug activity in 

order to avoid the risk of parole revocation. A defendant‘s 

parole status has been held to be probative of why a defendant 

would take extra steps to hide his criminal activity.‖). The 

probative value of this evidence is not substantially 

outweighed by whatever limited prejudice may have been 

caused by the references to Benjamin‘s parole status, which 

 

2 Benjamin did not request such a limiting instruction and 

does not suggest that the District Court should have given 

such an instruction sua sponte. See generally Ansell v. Green 

Acres Contracting Co., 347 F.3d 515, 526 (3d Cir. 2003) 

(holding that the defendant had waived any challenge to the 

district court‘s failure to give a limiting instruction addressing 

Rule 404(b) evidence by failing to request one at trial or raise 

the issue on appeal). 
14

the District Court was careful to minimize by, for instance, 

preventing the Government from presenting evidence of 

Benjamin‘s underlying drug trafficking convictions.

We hold that the District Court did not abuse its 

discretion in admitting evidence that Benjamin was on parole, 

and we will affirm on this ground. 

D.

Benjamin argues that 18 U.S.C. § 922(g)(1) is 

unconstitutional on its face and as applied to him under the 

Commerce Clause in order to preserve the issue for Supreme 

Court review. He correctly recognizes that his constitutional 

arguments are foreclosed by our precedent in United States v. 

Singletary, 268 F.3d 196 (3d Cir. 2001). Therefore, we need 

not discuss his constitutional challenges any further. 

III.

Based on the foregoing, we will remand this case to 

the District Court with instructions to vacate the sentence on 

Benjamin‘s conviction under § 922(g)(1) for possession of 

the gun in his house and to merge the two convictions under § 

922(g)(1) into one conviction. We will affirm the judgment 

of the District Court in all other respects.