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United States Court of Appeals,

Fifth Circuit.

No. 95-50861

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Glenn RAWLS, Defendant-Appellant.

June 17, 1996.

Appeal from the United States District Court for the Western

District of Texas.

Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Kenneth Glenn Rawls is a federal prisoner

serving a sentence imposed following conviction by a jury for

possession of a firearm by a previously convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (count one), and

acquisition of a firearm by knowingly making a false written

statement, in violation of § 922(a)(6) (count two). Seeking relief

through 28 U.S.C. § 2255, Rawls filed a motion to vacate, set

aside, or correct his sentence, which motion was denied by the

district court. For the reasons set forth below, we affirm.

I

FACTS AND PROCEEDINGS

When Rawls was convicted on counts one and two, the government

sought an enhanced sentence under 18 U.S.C. § 924(e)(1), on the

basis of Rawls' two burglary convictions grounded in different

occurrences on the same date, and a conviction for robbery
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committed three years thereafter. As a result, Rawls was sentenced

to an enhanced sentence totaling 188 months of imprisonment, a

total period of supervised release of five years, a $1500 fine, and

a $100 special assessment. In his unsuccessful direct appeal to

this court, Rawls argued that (1) the district court abused its

discretion in admitting purported hearsay testimony during the

trial; (2) the evidence was insufficient to prove that he

knowingly made a false statement in connection with his acquisition

of the firearm; (3) his constitutional rights were violated by the

court's use of the preponderance-of-the-evidence standard for the

government's burden of proof for enhancement of his sentence under

§ 924(e)(1); and (4) the enhancement under that section was

improper because the two burglaries, committed on the same date,

could not be deemed "separate occurrences."

In his § 2255 motion, Rawls insists that § 922(g)(1) is

unconstitutional for exceeding the authority of Congress under the

Commerce Clause, and is unconstitutional as applied to him under

the facts of this case. He also urges that he had ineffective

assistance of counsel and that he should receive a three level

downward adjustment for acceptance of responsibility. For good

measure, Rawls urges that his two prior burglary offenses should

have been counted as only one offense under the authority of

U.S.S.G. § 4A1.2, that pre-indictment delay violated his due

process rights, and that his Fourth Amendment rights were violated.

The district court denied the § 2255 motion and this appeal ensued.

II
 

1In United States v. Segeada, No. 95-40430, 74 F.3d 1237

(5th Cir. Nov. 30, 1995) (unpublished), we held, without

discussion, that the defendant's assertion that § 922(g)(1) was

unconstitutional did not constitute reversible error. 

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ANALYSIS

Relying in large part on United States v. Lopez, --- U.S. ---

-, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Rawls argues that

Congress exceeded its authority to regulate commerce when it

enacted § 922(g)(1). That section, however, has been held to be

constitutional under the Commerce Clause. United States v.

Wallace, 889 F.2d 580, 583 (5th Cir.1989), cert. denied, 497 U.S.

1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In Lopez, the

Supreme Court affirmed our holding that 18 U.S.C. § 922(q), which

purported to criminalize possession of a firearm within a specified

proximity to a school, exceeded the power of Congress to legislate

under the Commerce Clause because "[t]he possession of a gun in a

local school zone is in no sense an economic activity that might,

through repetition elsewhere, substantially affect any sort of

interstate commerce." Lopez, --- U.S. at ----, ----, 115 S.Ct. at

1626, 1634. Central to the Court's holding in Lopez was the fact

that § 922(q) contained "no jurisdictional element which would

ensure, through a case-by-case inquiry, that the firearm possession

in question affects interstate commerce." Id. at ----, 115 S.Ct.

at 1631.

We have not, since Lopez, considered its effect on the

constitutionality of § 922(g)(1).1 Other circuits addressing the

issue since Lopez have concluded that the Court's reasons for
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holding § 922(q) unconstitutional are inapplicable to § 922(g)(1).

See United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995);

United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United

States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United

States v. Hanna, 55 F.3d 1456, 1462 & n. 2 (9th Cir.1995); United

States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied,

--- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United

States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Today we

join all other circuits that have considered the issue post-Lopez

and hold that neither the holding in Lopez nor the reasons given

therefor constitutionally invalidate § 922(g)(1).

Rawls also argues that § 922(g)(1) is unconstitutional as

applied to him. More specifically, he points out that when he was

arrested no interstate activity was occurring. He contends that,

as such, he was not involved in an enterprise engaged in interstate

or foreign commerce, so his possession of the firearm "had no

connection to channels or instrumentalities of interstate

commerce." This argument too is unavailing.

Section 922(g)(1) makes it unlawful for a person who has been

convicted of a felony "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."

The "in or affecting commerce" element can be satisfied if the
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firearm possessed by a convicted felon had previously traveled in

interstate commerce. United States v. Fitzhugh, 984 F.2d 143, 146,

cert. denied, --- U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993)

("[A] convicted felon's possession of a firearm having a past

connection to interstate commerce violates § 922(g).");

Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963,

1969, 52 L.Ed.2d 582 (1977) (concluding that Congress did not

intend to require any more than the minimal nexus that, at some

time, the firearm had been in interstate commerce). As we noted on

direct appeal, an ATF weapons expert testified at Rawls' trial that

the revolver he possessed was manufactured in Massachusetts, so

that the revolver's presence in Texas had to result from transport

in interstate commerce. This evidence is sufficient to establish

a past connection between the firearm and interstate commerce. See

Fitzhugh, 984 F.2d at 146. We hold that § 922(g)(1) is not

unconstitutional as applied to Rawls.

As for the other issues urged by Rawls in this appeal, it

suffices that we have reviewed the record and considered the legal

arguments raised by the parties in their briefs to this court, and

are satisfied that no reversible error has been committed, and that

Rawls is entitled to no relief, in connection with his claims

regarding the counting of prior crimes and ineffective assistance

of counsel. The remaining claims asserted by Rawls in his § 2255

motion have not been raised on appeal and are thus deemed

abandoned. Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.),

cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
 

1As neither party has requested oral argument, this special

concurrence is consistent with summary calendar disposition. 

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For the foregoing reasons, the rulings of the district court

culminating in the denial of Rawls' § 2255 motion are, in all

respects,

AFFIRMED.

GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA,

Circuit Judges, join, specially concurring:

I concur, with these added observations.1 If the matter were

res nova, one might well wonder how it could rationally be

concluded that mere possession of a firearm in any meaningful way

concerns interstate commerce simply because the firearm had,

perhaps decades previously before the charged possessor was even

born, fortuitously traveled in interstate commerce. It is also

difficult to understand how a statute construed never to require

any but such a per se nexus could "ensure, through case-by-case

inquiry, that the firearm possession in question affects interstate

commerce." United States v. Lopez, --- U.S. ----, ----, 115 S.Ct.

1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in

Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52

L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g),

requires us to affirm denial of relief here. While Scarborough

addresses only questions of statutory construction, and does not

expressly purport to resolve any constitutional issue, the language

of the opinion and the affirmance of the conviction there carry a

strong enough implication of constitutionality to now bind us, as

an inferior court, on that issue in this essentially
 

2See, for example, the following from Scarborough where the

Court observed: "... we see no indication that Congress intended

to require any more than the minimal nexus that the firearm have

been, at some time, in interstate commerce." Id. at 575, 97

S.Ct. at 1969 (footnote omitted). 

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indistinguishable case, whether or not the Supreme Court will

ultimately regard it as a controlling holding in that particular

respect.2 Nothing in Lopez expressly purports to question

Scarborough, and indeed it is not even cited in Lopez. Moreover,

section 922(g) at issue here, unlike section 922(q) at issue in

Lopez, does expressly require some nexus to interstate commerce,

thus importantly reflecting that Congress was exercising that

delegated power and not merely functioning as if it were the

legislative authority of a unitary state. Lopez refused to

"convert congressional authority under the Commerce Clause to a

general police power of the sort retained by the States" and,

though recognizing that "[t]he broad language" in some of its prior

opinions "has suggested the possibility of additional expansion,"

nevertheless "decline[d] here to proceed any further." Id. at ----

, 115 S.Ct. at 1634. It is not for us to say that following what

seems to be implicit in Scarborough is to proceed "further" down

the road closed by Lopez. In any event, this panel is bound by our

post-Lopez decision in United States v. Segeada, No. 95-40430, 74

F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), holding section

922(g)(1) constitutional.