IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-50712

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY ALAN KUBAN,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court 

for the Western District of Texas

________________________________________________

August 29, 1996

Before REAVLEY, GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Gregory Kuban (Kuban), a convicted felon,

pleaded guilty to a charge of knowingly possessing firearms that

had been shipped or transported in interstate commerce, in

violation of 18 U.S.C. § 922(g)(1). Prior to entering his plea,

Kuban filed a motion to dismiss the indictment, challenging the

constitutionality of section 922(g)(1). Kuban’s plea was

conditioned on his right to appeal the district court’s denial of

this motion to dismiss the indictment. On appeal, Kuban challenges

both the constitutionality of section 922(g)(1) and the district

court’s interpretation and application of the guidelines in

computing his sentence.
2

Facts and Proceedings Below

On the evening of July 1, 1994, Kuban went searching for his

fourteen-year-old daughter, Jennifer Kuban. During his search, he

came upon a friend of his daughter, sixteen-year-old Kenan Ozen

(Ozen), parked in his car with Justin Neelley (Neelley). Kuban

pulled his car alongside that of Ozen, pointed a 9mm pistol at

Ozen’s head, cocked the hammer and demanded that Ozen tell him the

whereabouts of his daughter. Kuban was acquainted with Ozen as

Ozen had previously worked for him, providing maintenance at

Kuban’s automobile detail and window tinting business. Directing

his litany of threats and questions at Ozen, Kuban apparently left

Neelley alone. Ozen and Neelley accordingly led Kuban to his

daughter.

When they arrived at the residence where Jennifer Kuban was

staying, Ozen and Neelley went inside and told the occupants what

had happened. They locked the door and stayed in the house while

Kuban sat outside in his car, honking his horn and yelling.

Fearing that Kuban would eventually attempt to enter the residence,

the occupants called the police, but Kuban departed before the

police arrived.

After obtaining a warrant for Kuban’s arrest, law enforcement

officers proceeded to Kuban’s residence and observed him get into

his car as if to depart. As five officers ran to Kuban’s car,

Kuban was seen leaning into the passenger area of his vehicle. One

of the officers reported that he then saw a handgun on the front

passenger floor. Kuban was instructed to raise his hands and exit
 

1After impounding Kuban’s vehicle, an inventory of the car

additionally revealed a bag containing seven syringes and two

spoons, a coffee can containing approximately one-half ounce of

marihuana, zigzag rolling papers and several small plastic bags.

 

2Kuban had been previously convicted of three felony offenses:

aggravated assault, retaliation, and possession of marihuana in an

aggravated quantity.

3

the vehicle; when he refused to do so, Kuban was forcibly removed

from his car and handcuffed. A subsequent investigation of the car

resulted in the recovery of a loaded Browning 9mm pistol

(manufactured in Belgium) from the front passenger seat, a loaded

Ruger Redhawk .41 caliber magnum pistol (manufactured in

Connecticut) from the front passenger floor area, and a small

quantity of marihuana on the passenger seat.1 Kuban was arrested

for aggravated assault with a deadly weapon, possession of a

firearm by a felon2, and possession of marihuana. Kuban made bond

on these state charges and was released.

In Texas state court, Kuban was charged with aggravated

assault with a deadly weapon, in violation of Texas Penal Code §§

22.01(a)(2), 22.02(a)(2), and felon in possession of a firearm, in

violation of Texas Penal Code § 46.04(a)(1). On November 11, 1994,

a federal indictment against Kuban was also returned, charging him

with felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1).

Kuban filed a motion to dismiss the federal indictment,

arguing that section 922(g)(1) is an unconstitutional exercise of

the government’s power to regulate commerce. The district court
 

3The PSR states that “Mr. Kuban unlawfully possessed two

handguns on July 1, 1994. He used the Browning 9mm automatic to

threaten the life of 16-year-old Kenan Ozen on that date. He was

subsequently charged with Aggravated Assault with a Deadly Weapon

in state district court, as well as Felon in Possession of a

Firearm in violation of Texas state felony statutes. Consequently,

this four-level adjustment is applicable.”

4

overruled this motion, and Kuban subsequently entered a conditional

guilty plea, reserving his right to appeal the district court’s

adverse determination of his motion to dismiss.

The presentence investigation report (PSR) recommended: a

four-level increase to Kuban’s base offense level for Kuban’s

“use[] or possess[ion of] any firearm or ammunition in connection

with another felony offense”, pursuant to U.S.S.G. § 2K2.1(b)(5)3;

a two-level “vulnerable victim” increase pursuant to U.S.S.G. §

3A1.1; and a three-level downward departure in recognition of

Kuban’s acceptance of responsibility, pursuant to U.S.S.G. §

3E1.1(a). Kuban objected to the PSR’s recommendations for

increases in offense level, but the district court overruled his

objections and adopted the recommendations. The district court

sentenced Kuban to 108 months imprisonment, a three-year term of

supervised release, a fine of $12,500, and a special assessment of

$50. Kuban appeals.

Discussion

I. Constitutionality of 18 U.S.C. § 922(g)(1)

Kuban’s challenges to the constitutionality of section

922(g)(1) as applied to him have been resolved adversely to his
 

4As indicating by the concurring opinion in Rawls (joined in

by all judges on that panel), were the matter res nova a powerful

argument could be made for a contrary result; however, this

inferior federal court must regard Scarborough v. United States, 97

S.Ct. 1963 (1977) as barring the way.

5

contentions by our recent decision in United States v. Rawls, 85

F.3d 240 (5th Cir. 1996), which is binding on this panel.4 See 

also United States v. Segeada, No. 95-40430 (5th Cir. Nov. 30,

1995)(unpublished)(upholding constitutionality of section

922(g)(1)). We accordingly reject this claim of error.

II. Application of the Sentencing Guidelines

We review de novo the district court’s “interpretation of the

requirements” of the sentencing guidelines. United States v. LaraVelasquez, 919 F.2d 946, 953 (5th Cir. 1990). However, where the

district court has correctly interpreted the relevant guideline

provisions, we review the district court’s application of the

guidelines to the particular facts and circumstances of the case

before it for abuse of discretion. See United States v. Koon, Nos.

94-1664, 94-8842, 1996 WL 315800 (June 13, 1996).

A. “Unusually Vulnerable Victim” Enhancement

The PSR recommended a two-level increase to Kuban’s base

offense level because Kuban knew or should have known that Ozen was

“unusually vulnerable due to age, physical or mental condition, or

that [Ozen] was otherwise particularly susceptible to the criminal

considering defense counsel’s arguments on this point, the district

court concluded that Ozen was unusually vulnerable because of his

age——“unusually vulnerable, because he’s being faced by a fellow

who is, perhaps, bigger, certainly older, more experienced, more
6

knowledgeable, more mature, supposedly, as to what he might be able

to do to him or with him.” 

Kuban challenges this adjustment on two grounds: First, Kuban

contends that the offense of conviction, felon in possession of a

firearm, is a victimless crime; second, Kuban argues that, even

assuming arguendo that there could be a victim of his offense of

conviction, Ozen was not “unusually vulnerable” within the meaning

of section 3A1.1.

Reviewing Kuban’s first contention de novo, we hold that the

district court did not err by characterizing Ozen as a “victim” of

Kuban’s conduct. In United States v. Roberson, 872 F.2d 597 (5th

Cir.), cert. denied, 110 S.Ct. 175 (1989), this Court held that, in

the present context, “[T]he [Sentencing] Commission has chosen not

to require a nexus between the offense of conviction and the

victim.” Id. at 608. This Court reached this conclusion after

observing that the commentary to section 3A1.1 did not require the

vulnerable victim to be a victim of the offense of conviction:

“[W]hen the Commission has wished to require a link between the

offense of conviction and a factor the court could consider in

sentencing, it has expressly included that requirement in the

Guidelines.” Id. At the time that this Court decided Roberson,

the commentary to section 3A1.1 explained that the vulnerable

victim enhancement “applie[d] to any offense where the victim’s

vulnerability played any part in the defendant’s decision to commit

the offense.” Id. Based on this language, this Court held in

Roberson that the (deceased) individual whose credit card had been
 

5This Court also noted in Roberson that the commentary to

U.S.S.G. § 1B1.3, which addresses “relevant conduct”, clarified

that “conduct that is not formally charged or is not an element of

the offense of conviction may enter into the determination of the

applicable Guideline Sentencing range.” Roberson, at 608-609.

 

6In so holding, we recognize that the relevant commentary to

section 3A1.1 has been amended since our decision in Roberson. The

commentary now states: “This adjustment applies to offenses where

an unusually vulnerable victim is made a target of criminal

activity by the defendant.” U.S.S.G. § 3A1.1, comment. (n.1)

(effective November 1, 1989). This Court has not considered the

impact of this amendment on our decision in Roberson. However,

there appears to be little in the language of this amendment that

would justify the conclusion that Roberson is no longer binding.

Furthermore, the Supreme Court opinion advanced by Kuban, Hughey v.

United States, 110 S.Ct. 1979 (1990), is clearly distinguishable.

In Hughey, the Court did conclude that the class of “victims” at

issue in that case would be limited to victims of the offense of

conviction. Id. at 1982-83. In reaching this conclusion, however,

the Court was clearly addressing only the restitution provisions of

the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579-

3580. After considering the statutory language at issue and the

ordinary meaning of the word “restitution”, the Court held that

“restitution as authorized by the statute is intended to compensate

victims only for losses caused by the conduct underlying the

offense of conviction.” Id. at 1982. Kuban’s argument in the

present case draws no really significant, direct support from this

holding. Hughey is simply too far removed from the present issue

to justify the conclusion that this panel is no longer bound by

Roberson. In sum, this panel is simply not free to reexamine

Roberson. 

7

used by the defendant after the card owner’s death in order to

commit the charged “credit card fraud”——the offense of

conviction——was a “victim” under section 3A1.1, particularly in that

the decedent “certainly suffered indignity in having his corpse

abused and his good name brought into this whole sordid affair.”

Id. at 609.5 Within this analytical framework, Ozen must be viewed

as a “victim” of Kuban’s conduct, as well. We are bound by

Roberson.6
 

7The statutory requirement at issue is set forward in 18

U.S.C. § 3742. Before the sentencing guidelines system was

implemented, a federal criminal sentence within the statutory

limits was essentially not reviewable on appeal. Id. Section 3742

was enacted in order to create limited appellate jurisdiction to

review federal sentences. Id. In the above quotation, the Court

was citing the 1988 amendment to section 3742. Id.

8

Next, Kuban contends that, even if Ozen were a “victim” within

the meaning of section 3A1.1, the district court erred in finding

that Ozen was an “unusually vulnerable” victim. “The determination

of ‘vulnerability is a complex fact dependent upon a number of

characteristics which a trial court could not possibly articulate

completely’ . . .” United States v. Scurlock, 52 F.3d 531, 542

(5th Cir. 1995)(footnote omitted). “Accordingly, we give the

finding of vulnerability due deference.” United States v. Box, 50

F.3d 345, 358-59 (5th Cir.), cert. denied, 116 S.Ct. 309 (1995).

See also Koon v. United States, Nos. 94-1664, 94-8842, 1996 WL

315800 at *11 (June 13, 1996)(recognizing the statutory requirement

“that courts of appeals ‘give due deference to the district court’s

application of the guidelines to the facts’”).7 Additionally, we

accord due deference to the finding of “what the defendant knew or

should have known in this respect.” United States v. Brown, 7 F.3d

1155, 1160 (5th Cir. 1993). Finally, we must determine whether the

district court’s finding of “unusual vulnerab[ility]” was plausible

in light of the record as a whole. See Scurlock, at 542. 

In the instant case, the district court concluded that Ozen

was unusually vulnerable because of his age——“unusually vulnerable,

because he’s being faced by a fellow who is, perhaps, bigger,

certainly older, more experienced, more knowledgeable, more mature,
9

supposedly, as to what he might be able to do to him or with him.”

Additionally, it was brought to the district court’s attention that

Ozen had previously been employed by Kuban, adding yet another

nuance to the relationship between these two individuals. Although

the issue is indeed a close one, and the concept of vulnerability

has arguably been taken virtually to its outer limits,

nevertheless, in light of all the foregoing circumstances and the

deference due the district court, we ultimately conclude that its

application of section 3A1.1 must stand.

B. Enhancement for Use of Firearm to Commit Felony

Finally, the district court also applied a four-level increase

to Kuban’s base offense level because “the defendant used or

possessed [a] firearm or ammunition in connection with another

felony offense . . .” U.S.S.G. § 2K2.1(b)(5). In this case, the

“[other] felony offense” was aggravated assault with a deadly

weapon, violative of Texas Penal Code §§ 22.01(a)(2), §

22.02(a)(2). The parties correctly agree that the second state

offense with which Kuban was charged, felon in possession of a

firearm, violative of Texas Penal Code § 46.04(a)(1), cannot

constitute the “[other] felony offense” underlying the district

court’s [section 2K2.1(b)(5)] four-level enhancement. However, it

appears that the district court relied on the state aggravated

assault with a deadly weapon charge to increase Kuban’s base
 

8The transcript of Kuban’s September 14, 1995, sentencing

hearing clearly reflects that defense counsel recognized that the

“[other] felony offense” in question was the state charge of

aggravated assault with a deadly weapon, and that the government

and the district court shared this view.

 

9Texas Penal Code § 22.02, entitled “Aggravated Assault”,

states:

“(a) A person commits an offense if the person commits

assault as defined in Section 22.01 and the person:

. . . (2) uses or exhibits a deadly weapon during

the commission of the assault.” (emphasis added).

In relevant part, section 22.01, entitled “Assault”, states:

“(a) A person commits an offense if the person:

. . . (2) intentionally or knowingly threatens

another with imminent bodily injury . . .”

10

offense level pursuant to section 2K2.1(b)(5)8, and, contrary to

Kuban’s protestations, the district court did not err in doing so.

At sentencing, defense counsel objected to the PSR’s

recommendation of section 2K2.1(b)(5) enhancement, arguing

principally that Kuban was being “doubly punished” for his

possession of firearms. Counsel further contended that “the

aggravated assault [] in the state court would not have been an

aggravated assault but for the use of the firearm.” However, when

the district court asked defense counsel whether someone could “be

charged with aggravated assault for some other reason other than

the use of a firearm?”, counsel correctly responded, “Yes, Your

Honor.”9 It is clear that there is no merit to Kuban’s assertion

that he was “doubly punished” for possessing firearms. This

argument misses the critical requirement of section 22.02(a)(2)

that the defendant must use or exhibit a deadly weapon in order for
 

10We also note that, by its own terms, section 2K2.1(b)(5)

mandates enhancement when the requisite conditions for application

of that section have been met. The requisite conditions having

been met in the instant case——“the defendant used or possessed [a]

firearm or ammunition in connection with another felony

offense”——the district court had no discretion regarding

application of this enhancement.

11

an assault to rise to the level of an aggravated assault. A

defendant’s mere possession of a deadly weapon during the

commission of an assault would not of itself implicate section

22.02. It is indisputable that Kuban committed his assault on Ozen

by using and/or exhibiting——not merely contemporaneously possessing

(as by carrying concealed in his pocket)——the deadly weapon: the

section 22.02 violation was Kuban’s pointing the weapon at Ozen’s

head at close range and cocking it, while demanding information

from Ozen. Therefore, the district court properly increased

Kuban’s base offense level pursuant to section 2K2.1(b)(5) in the

present case.10

Conclusion

For the foregoing reasons, Kuban’s conviction and sentence are

AFFIRMED.

DeMOSS, Circuit Judge, dissenting in part.

I am unable to concur with the summary disposition which the

majority makes as to Kuban’s challenge to the constitutionality of

§ 922(g)(1) as applied to him, and write to respectfully register

my reasons for this partial dissent.
 

11 Firearm Owners’ Protection Act of 1986, Public Law 99-

308; H.R. REP. NO. 495, 99th Cong. 2d Sess., § 4 (1986) (“Title VII

of the Omnibus Crime Control and Safe Streets Act of 1968 [which

enacted § 1202(a)] is repealed.”).

12

First, I do not regard the opinion in Scarborough v. United

States, 97 S. Ct. 1963 (1977), as “barring the way” as the majority

notes in footnote 4 above. In Scarborough the Supreme Court

interpreted the language of 18 U.S.C. App. § 1202(a)(1) which fixed

the punishments for a convicted felon “who receives, possesses or

transports in commerce or affecting commerce ... any firearm.” The

writ of certiorari in Scarborough was limited to the question of

whether a conviction under 18 U.S.C. App. § 1202(a) “is sustainable

merely upon a showing that the possessed firearm has previously at

any time however remote traveled in interstate commerce.”

Concluding that the legislative history of § 1202(a) gave no

indication “that Congress intended to require any more than the

minimal nexus that the firearm has been, at some time, in

interstate commerce”, the Supreme Court affirmed the conviction,

but without any real analysis of whether the “minimal nexus” was

constitutionally sufficient. 

In 1986, § 1202(a), along with the various congressional

findings which the Court cited in Scarborough as supporting the

“minimal nexus” conclusion, was repealed by Congress.11 The present

statute under which Kuban was indicted reads in relevant portions

as follows:

(g) It shall be unlawful for any person --
13

(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.

18 U.S.C. § 922(g).

Applying a common sense reading to § 922(g) and reading the

words and punctuation in the manner which an average citizen would

read it, this subsection creates three separate and distinct

criminal acts as follows:

A. Element A: It shall be unlawful for [a

convicted felon] to ship or transport in

interstate or foreign commerce any firearm or

ammunition;

B. Element B: It shall be unlawful for [a

convicted felon] to possess in or affecting

commerce any firearm or ammunition; or

C. Element C: It shall be unlawful for [a

convicted felon] to receive any firearm or

ammunition which has been shipped or

transported in interstate or foreign commerce.

It seems critically important that we note the clear

differences between the current statute (§ 922(g)(1)) under which

Kuban was indicted and the old statute (18 U.S.C. App. §

1202(a)(1)) which was construed in Scarborough. First, as the

Supreme Court has held, under the old statute the phrase “in

commerce or affecting commerce” applied to each of the three verbs:
 

12 United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30

L.Ed.2d 488 (1971).

14

“receives, possesses or transports”.12 Under the current statute,

however, the phrase “in or affecting commerce” modifies only the

verb “possess” in Element B of the current statute. Next, it is

apparent that the current statute is structurally different from

the statute construed in Scarborough because the phrase “which has

been shipped or transported in interstate or foreign commerce”

modifies only the “firearm or ammunition” which was “received” by

a convicted felon in Element C. 

It seems important to note that the current statute (§

922(g)(1)) does not use any words or phrases which refer to or are

a derivative of the phrase used in the question certified on writ

of certiorari in Scarborough: “that the possessed firearm has

previously at any time however remote traveled in interstate

commerce.” (Emphasis added.) Nor are there any words or phrases

in the current statute referring to the holding of the Supreme

Court in Scarborough that the “firearm had been, at some time, in

interstate commerce”. In putting together § 922(g), Congress could

easily have inserted the phrase “at any time” after the words

“shipped or transported” in Element C as it did in § 922(k), and

the absence of any phrase as to the remoteness in time of the

shipment or transportation in interstate commerce leads me to the

conclusion that Congress chose not to rely upon the “minimal nexus”

of Scarborough, but rather crafted § 922(g) to have clear and

unambiguous connections with interstate commerce.
 

13 I, of course, am mindful of the Supreme Court’s warning

in Rodriguezde Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 484 (1989), that “[i]f a precedent of [the Supreme] Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own decisions.”

I, however, do not believe that Scarborough directly controls

because (1) the statute at issue in Scarborough has been repealed

and (2) the Scarborough court did not address the constitutional

issue. Thus, Shearson/American Express does not apply.

15

The second reasons why I would not consider that Scarborough

stands in the way of a thorough examination of the constitutionality of § 922(g)(1) in this case is that the precise holding

in Scarborough is in fundamental and irreconcilable conflict with

the rationale of the United States Supreme Court in United States

v. Lopez, 115 S. Ct. 1624 (1995).13 Obviously the precise holding

in Lopez which declared § 922(q) unconstitutional does not automatically determine the issue as to § 922(g)(1). But Lopez has to

be read as more than a case determining the constitutionality of

one of the subsections of § 922. Rather, Lopez is a fundamental

and landmark restatement and redefinition of the powers of Congress

under the Commerce Clause. Whatever may have been the ambiguities

and lack of clarity under prior case law as to whether an activity

must “affect” or “substantially affect” interstate commerce in

order to be within Congress’ power to regulate it under the

Commerce Clause, the Court stated in Lopez that “consistent with

the great weight of our case law ... the proper test requires an

analysis of whether the regulated activities substantially affects

interstate commerce.” Id. at 1630. In my view, this conclusion

means that in regard to Element B of § 922(g)(1) the possession by
16

a convicted felon of a firearm must now “substantially affect

interstate commerce”. Consequently, the “minimal nexus” of

Scarborough can no longer be deemed sufficient under the Lopez

requirement of substantially affecting interstate commerce. The

mere fact that a felon possesses a firearm which was transported in

interstate commerce years before the current possession cannot

rationally be determined to have a “substantial impact on

interstate commerce” as of the time of current possession. 

Finally, I would proceed to reach the constitutionality of §

922(g)(1) in this case because the facts are so compellingly local

in nature. The events which ultimately resulted in this federal

indictment started out as a quarrel between a father (Kuban) and

his 14-year-old daughter which deteriorated into a “family

disturbance” (so characterized in the factual stipulation filed by

the United States Attorney and the Presentence Report prepared by

the Probation Department). The events took place in the

residential areas of a small town in Travis County, Texas. When

the witnesses and victims felt the need of police assistance, they

called the sheriff of Travis County and the police department of

the local town. They did not call the FBI, the DEA, the ATF or any

other federal law enforcement agency. Ultimately, the local police

officers found and arrested Kuban and took him into state custody

on various state criminal charges, including the state charge of

being a felon in possession of a gun. All of these events took

place on July 1, 1994. Four months later, the United States Bureau

of Alcohol, Tobacco and Firearms initiated a federal investigation
17

regarding the weapons and Kuban was named as a defendant in a onecount federal indictment charging him with being a felon in

possession of a firearm. At the time of the issuance of this

federal indictment, Kuban was still in state custody and the United

States Attorney issued an application for writ of habeas corpus ad

prosequendum in order to bring Kuban from custody in the Travis

County jail to arraignment on the federal charges. 

The federal indictment charges that Kuban “a person who had

previously been convicted of a crime punishable by imprisonment for

a term exceeding one year, did knowingly possess a firearm that had

been shipped and transported in interstate commerce and affecting

commerce, specifically a Browning 9 mm pistol and a Ruger Red Hawk

.41 Magnum caliber revolver, in violation of Title 18, United

States Code, § 922(g)(1).” The language of the indictment is a

hodgepodge cut-and-paste mixing of the elements of criminal conduct

under § 922(g)(1). The prohibited verb “possess” is out of Element

B; the phrase “that had been shipped and transported in interstate

commerce” is out of Element C, but the word “had” is substituted

for the word “has”, a not insignificant change of the tenses of the

verb. The phrase “and affecting commerce” is out of Element B and

as placed in the indictment language it is impossible to determine

whether this phrase modifies “possess” or “shipped and

transported.” The indictment uses only the prohibited verb

“possess” and does not mention “receives.” The indictment does not

contain any allegation about the conduct “substantially” affecting

commerce. 
18

In the factual basis filed by the United States Attorney the

only grounds upon which the government offered to prove that the

conduct involved had anything to do with interstate commerce was

the tender of proof that the firearms involved “had previously

traveled in interstate commerce as the Browning 9 mm semi-automatic

pistol was manufactured in Belgium and the Ruger Red Hawk .41

Magnum revolver was manufactured in Connecticut.” The fact that a

firearm was manufactured originally in Belgium or Connecticut and

is later found in possession of a felon in Texas cannot constitute

proof beyond a reasonable doubt that such firearm was ever “shipped

or transported in interstate commerce” for it is just as plausible

that the firearm was purchased by its original owner where it was

manufactured and brought or carried to Texas by such original owner

as part of his personal property and not as part of any interstate

shipment. The government’s theory might hold water if the statute

prohibited a felon from possessing a firearm in any state different

from the state where the firearm was manufactured; but that’s not

what § 922(g)(1) prohibits. Furthermore, there was no offer of any

proof by the government that Kuban’s possession of the firearm took

place in a channel of commerce or that it involved any facility of

interstate commerce. Likewise, there was no offer of proof of any

kind by the government that Kuban’s possession of the weapons on

July 1, 1994, had any effect whatsoever, much less a substantial

effect, on interstate commerce.

If the government is correct that all it takes to get a

conviction under § 922(g)(1) is to show that a felon possessed a
19

firearm which at some time in past history was shipped in

interstate commerce, then all of the other elements of § 922(g)(1)

are rendered surplusage and meaningless. Lopez reiterates the

warning issued earlier by the Supreme Court in Jones & Laughlin

Steel: 

[T]he scope of [the interstate commerce] power must

be considered in the light of our dual system of

government and may not be extended so as to embrace

effects upon interstate commerce so indirect and

remote that to embrace them, in view of our complex

society, would effectually obliterate the

distinction between what is national and what is

local and create a completely centralized government.

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31 (1937). I

would hold that the “affecting commerce” mantra of Scarborough has

been changed by Lopez’s requirement of a substantial affect on

commerce and Scarborough’s “minimal nexus” can no longer satisfy

Lopez’s requirement that the regulated activity must exert “a

substantial economic affect on interstate commerce.”

For these reasons I would address the constitutional issue and

hold that under the facts of this case there is no substantial

effect on interstate commerce to satisfy the indictment under §

922(g)(1).