IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10743

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JACKIE DON BURKE,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CR-281-1

Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Jackie Don Burke (“Burke”) appeals the district court’s entry of final 

judgment of sentence and conviction. We AFFIRM.

Burke was charged in a one-count indictment with engaging in the 

business of firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) 

& 924(a)(1)(D). A jury found Burke guilty at trial, and the district court 

sentenced Burke and entered final judgment.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 11, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-10743 Document: 00512728737 Page: 1 Date Filed: 08/11/2014
No. 13-10743

Burke appeals his conviction on several grounds. First, he asserts that 

his conviction should be vacated because the district court lacked subject 

matter jurisdiction. We review this issue de novo and conclude that the district 

court had jurisdiction pursuant to 18 U.S.C. § 3231. See United States v. Isgar, 

739 F.3d 829, 838 (5th Cir. 2014).1

Second, Burke maintains that his conviction should be vacated because 

§ 922(a)(1)(A) exceeds Congress’s authority under the Commerce Clause

because the first section of the statute lacks an interstate commerce nexus. 

Under the rule of orderliness, we are bound by our prior holding in United 

States v. King, 532 F.2d 505, 510 (5th Cir. 1976), in which we rejected this 

precise argument with respect to this precise statute.2 See United States v. 

Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013) (holding that “only an 

intervening change in the law (such as by a Supreme Court case) permits a 

subsequent panel to decline to follow a prior Fifth Circuit precedent,” and that 

“[s]uch an intervening change in the law must be unequivocal, not a mere ‘hint’ 

of how the Court might rule in the future.”), cert. denied, 134 S. Ct. 1570 (2014). 

Burke argues that a series of recent cases from the Supreme Court3 overrules

our holding in King. However, none of these cases unequivocally overrule King

1 Although Burke argues that § 922(a)(1) exceeds Congress’s authority under the 

Commerce Clause, such a constitutional challenge does not “affect[ the district] court’s 

subject matter jurisdiction.” United States v. Sealed Appellant, 526 F.3d 241, 243 & n.4 (5th 

Cir. 2008) (citation omitted); see also Isgar, 739 F.3d at 838.

2 Other circuits have come to the same conclusion on this question. See United States 

v. Ibarra, 472 F. App’x 819, 819 (9th Cir. 2012) (unpublished); United States v. Hornbeck, 489 

F.2d 1325, 1326 (7th Cir. 1973); Mandina v. United States, 472 F.2d 1110, 1113–14 (8th Cir. 

1973). The Supreme Court, in analyzing a separate subsection of § 922, also rejected the 

argument that an interstate commerce nexus was required. See Huddleston v. United States, 

415 U.S. 814, 833 (1974).

3 Specifically, Burke cites the following cases: National Federation of Independent 

Business v. Sebelius, 132 S. Ct. 2566 (2012); United States v. Lopez, 514 U.S. 549 (1995); and 

United States v. Morrison, 529 U.S. 598 (2000).

2

 

 Case: 13-10743 Document: 00512728737 Page: 2 Date Filed: 08/11/2014
No. 13-10743

or even address § 922(a)(1)(A).4 Accordingly, we are bound by King and 

conclude that this issue is foreclosed.5

Third, Burke contends that his conviction should be vacated because the 

Government did not introduce sufficient evidence to establish a nexus between 

Burke’s activity and interstate commerce under § 922(a)(1)(A). However, such 

a nexus is not a required element of § 922(a)(1)(A) under King. See 532 F.2d 

at 510.6

Finally, Burke asserts that his conviction should be vacated because

§ 922(a)(1)(A) is unconstitutionally vague. We review this issue de novo. See 

United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999). Section 922(a)(1)(A) 

prohibits, among other things, any person, except a licensed dealer, from 

engaging in the business of dealing in firearms. Burke contends that 

§ 922(a)(1)(A) is unconstitutionally vague because it does not provide clear 

notice of what conduct constitutes “engaging in the business of dealing in 

firearms.” At trial, the Government provided substantial evidence that Burke 

was engaged in the business of dealing in firearms, as those terms are defined 

4 National Federation involved a challenge to the Patient Protection and Affordable 

Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). 132 S. Ct. at 2577. Lopez involved a 

challenge to the validity of the Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, 104 

Stat. 4844 (1990). 514 U.S. at 551. Morrison involved a challenge to the constitutionality of 

the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994). 529 

U.S. at 605.

5 We note that while Burke seeks de novo review on this issue, the Government 

maintains that plain error review should apply because Burke did not preserve this issue for 

our review. Even under the least deferential standard of review, we affirm because Burke’s 

argument is foreclosed by our prior precedent.

6 The parties again dispute whether this issue should be reviewed de novo or for plain 

error, given Burke’s failure to articulate before the district court the Commerce Clause 

argument that he now advocates on appeal. Here again, the outcome does not turn on the 

standard of review, so we need not decide which standard applies.

3

 

 Case: 13-10743 Document: 00512728737 Page: 3 Date Filed: 08/11/2014
No. 13-10743

under the statute.7 See 18 U.S.C. §§ 921(a), 922(a)(1)(A). Burke cannot 

challenge the constitutionality of § 922(a)(1)(A) for vagueness, because his 

conduct was unquestionably prohibited by the statute. See Parker v. Levy, 417 

U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not 

successfully challenge it for vagueness.”); Broadrick v. Oklahoma, 413 U.S. 

601, 608 (1973) (same); see also United States v. Strunk, 551 F. App’x 245, 246 

(5th Cir.) (unpublished)8 (concluding that a defendant who, “without being 

licensed, sold firearms entrusted to him by others for the purpose of sale,” could 

not attack § 922(a)(1)(A) on the basis that it is vague, because “[s]uch conduct 

is unquestionably prohibited by the legislation’s text”), cert. denied, 134 S. Ct. 

1912 (2014); United States v. Shipley, 546 F. App’x 450, 456 (5th Cir. 2013) 

(unpublished) (rejecting a vagueness challenge to § 922(a)(1)(A) by a defendant 

who made, “over a number of years, numerous repetitive sales in quick 

succession, sometimes to repeat customers,” because “such conduct is 

unquestionably prohibited by the statutes’ text”), cert. denied, 134 S. Ct. 2842 

(2014).

AFFIRMED.

7 Specifically, the Government introduced evidence establishing that Burke: (a) 

advertised that he dealt in firearms; (b) acquired and sold approximately 135 firearms in the 

span of a year; (c) posted multiple sales listings on GunsAmerica.com for firearms valued at 

more than $25,000; (d) frequently purchased several firearms of the same model and caliber; 

(e) sold firearms for other individuals on a consignment basis; (f) sold a number of firearms 

with a total value of approximately $45,000 at a gun show; (g) affixed price tags to most of 

the firearms in his “Arms Room,” indicating their availability for sale; and (h) sold many of 

the firearms that he purchased within a few months of purchase. 

8 “An unpublished opinion issued after January 1, 1996 is not controlling precedent, 

but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).

4

 

 Case: 13-10743 Document: 00512728737 Page: 4 Date Filed: 08/11/2014