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. e du/thir dc ir c uit_2001/225Filed October 2, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3850

UNITED STATES OF AMERICA

v.

JAMAAL ADEEM ATIF SINGLETARY, a/k/a

JAMAL SINGLETARY a/k/a

CURTIS SINGLETARY

Jamaal Singletary,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 00-cr-00199) District Court Judge: The Honorable Charles R. Wein er

Submitted Under Third Circuit L.A.R. 34.1(a) July 27, 2001

Before: ROTH, BARRY, and FUENTES, Circuit Judges

(Opinion Filed: October 2, 2001)Maureen Kearney Rowley

Chief Federal Defender David L. McColgin
Assistant Federal Defender
Federal Court Division Defender Association of Philadelphia
Suite 540 West - The Curtis Center Independence Square West Philadelphia, PA 19106-2414

ATTORNEYS FOR APPELLANT

Michael L. Levy United States Attorney

Robert A. Zauzmer Assistant United States Attorney Chief of Appeals Lesley S. Bonney Assistant United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge:

Following a jury trial, defendant, Jamaal Singletar y, was convicted on one count of possession of a firearm b y a convicted felon in violation of 18 U.S.C. S 922(g)( 1). On appeal, Singletary contends that the felon-in-posse ssion
statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firear m -- does not have a substantial effect upon interstate comme rce, and thus does not constitute a valid exercise of Co ngress' authority under the Commerce Clause. Specifically, Singletary contends that, although in United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we upheld the constitutionality of S 922(g)(1) as a proper exerci se of Congress' regulatory power under the Commerce Claus e, that holding must be reconsidered in the wake of th e Supreme Court's decisions in United States v. Morri son, 529

2U.S. 598 (2000), and Jones v. United States, 529 U. S. 848

(2000). Because we conclude that those decisions do not undermine our prior construction of the felon-in-po ssession statute, we will reaffirm our holding in Gateward a nd affirm the judgment of the District Court.

I.

The relevant facts are not in dispute. During the e vening of December 8, 1999, Police Officer Thomas Liciarde llo was watching a suspected stolen car in the area of Cobb s Creek Parkway and Larchwood Avenue in Philadelphia, Pennsylvania. At about 7:30 p.m., while watching th e car, Liciardello saw a blue pick-up truck drive across t he sidewalk and into the park located there. He saw Singletary, the driver, get out of the truck, fire two shots into the air with a silver handgun, and then jump b ack into the truck and drive on through the park. Liciardell o radioed information about the truck, and Officers John Spen ce and Maurice Haughton began chasing the truck as it left the park. During the chase, Spence saw a gun tossed out the passenger side window. The officers stopped the tru ck a short distance later, and Officer Liciardello locat ed the gun

on the street.

On April 18, 2000, a grand jury in the Eastern Dist rict of Pennsylvania indicted Singletary on one count of un lawful possession of a firearm by a convicted felon in vio lation of 18 U.S.C. S 922(g)(1). Specifically, he was charged with having "knowingly possessed in and affecting foreig n and interstate commerce, a .38 caliber Taurus Internati onal
revolver . . . loaded with four live rounds and two spent rounds of ammunition." On July 5, 2000, the Distric t Court denied a defense motion to dismiss the indictment, rejecting Singletary's argument that the statute is constitutionally infirm both facially and as applie d because it does not require that the act of gun possession have a
substantial effect on interstate commerce.

At trial, the Government established through the undisputed expert testimony of Special Agent James J. Uvena of the Bureau of Alcohol, Tobacco & Firearms that the gun in question was manufactured in Brazil, imp orted

3into the United States through Atlanta, Georgia, an d

eventually sent to a firearms dealer in Texas in 19 73. No further documentation on the gun was available, and thus, the Government presented no evidence regarding when the gun had come into Pennsylvania. Additionally, the Government presented no evidence concerning any eff ect the gun had on interstate commerce. As for the othe r elements of the crime, Singletary stipulated that h e had a prior felony conviction, and the issue of possessio n, while hotly contested at trial, is not germane to the iss ues before us on appeal.

At the close of the Government's case, defense coun sel submitted a proposed jury instruction that would ha ve required the Government to prove "[t]hat the posses sion of the firearm substantially [a]ffected interstate com merce." An additional proposed instruction would have given th e jury the following definition of the phrase "in or affec ting

commerce":

This means that the government must prove be yond a reasonable doubt that, the possession of the firearm in question, had a substantial effect on inters tate commerce. In order to find that the possessi on of this weapon had the requisite impact on interstat e commerce, you must find that the possession of the gun in question had a substantial relation t o interstate
commerce in and of itself.

The court denied the requested instructions and als o barred defense counsel from arguing to the jury tha t the Government had failed to prove that the possession of the
firearm had a substantial relation to interstate co mmerce. For its charge, the court instructed the jury that:

[t]o prove that the firearm was possessed in or affecting interstate or foreign commerce, the Governme nt must prove that at some time prior to defendant's possession of the firearm, the firearm had traveled in interstate or foreign commerce . . . that at any time prio r to the date charged in the Indictment, the firearm cross ed a state
line.

The jury returned a guilty verdict. Defense counsel once again moved for a judgment of acquittal, which the court

4denied on November 6, 2000. The court subsequently

sentenced Singletary to 27 months' imprisonment, th ree years' supervised release, a special assessment of $100, and a fine of $200.

II.

On appeal, Singletary contends that the Supreme Court's recent Commerce Clause jurisprudence render s 18 U.S.C. S 922(g)(1), the felon-in-possession stat ute, unconstitutional, and therefore, his conviction inv alid. In the alternative, he argues for a reversal because o f
insufficient evidence on the interstate commerce el ement,
or for a new trial because of the District Court's erroneous jury instructions on that same element.1

The District Court exercised jurisdiction over this case under 18 U.S.C. S 3231, and we have appellate juris diction under 28 U.S.C. S 1291. Because Singletary challeng es the constitutionality of S 922(g)(1), we will exercise plenary
review over the District Court's assertion of feder al jurisdiction. See United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999) ("Our review of the statute's consti tutionality is plenary, though we must respect Congress's ample discretion to determine the appropriate exercise of its Commerce Clause authority."), cert. denied , 529 U. S. 1131 (2000); accord United States v. One Toshiba Color T elevision, 213 F.3d 147, 151 (3d Cir. 2000) (en banc) ("Our re view over constitutional issues is plenary."). Moreover, "[b]ecause each of [Singletary's] challenges is based on the d istrict court's construction of statutes and case law, we w ill exercise plenary review." United States v. Cross, 1 28 F.3d 145, 147 (3d Cir. 1997).

A.

Under the Commerce Clause of the United States Constitution, Congress is empowered "[t]o regulate Commerce with foreign Nations, and among the severa l States, and with the Indian Tribes." U.S. Const., a rt. I, S 8,

___________________________________________________ ______________

1. Singletary moved for an initial en banc conside ration of his appeal by this Court, but we denied that request.

5cl. 3. Pursuant to this authority, Congress enacted the

felon-in-possession statute, which provides, in rel evant part:

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

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceed ing one year . . . to ship or transport in interstat e or foreign commerce, or possess in or affecting commerc e, any firearm or ammunition; or to receive any fir earm or ammunition which has been shipped or transpo rted in interstate or foreign commerce.

18 U.S.C. S 922(g)(1). The statute can be read to c reate three crimes for convicted felons: (1) "to ship or transport in interstate or foreign commerce . . . any firearm or ammunition"; (2) "to . . . possess in or affecting commerce, any firearm or ammunition"; and (3) "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Plainly, (1) shipp ing or transporting and (3) receiving any firearm or ammun ition "in interstate or foreign commerce" are both distin ct crimes. Notably, however, Congress did not use the phrase"i n interstate or foreign commerce" when it criminalize d possession. Instead, Congress merely employed the p hrase "in or affecting commerce."

At the time the Supreme Court established what rema ins the governing jurisprudence on federalization of gu n possession, the felon-in-possession statute, then c odified at 18 U.S.C. S 1202(a), was phrased differently. Speci fically, the "predecessor statute to S 922(g)(1)[ ] made any felon `who receives, possesses, or transports in commerce or affecting commerce . . . any firearm' guilty of a f ederal offense." United States v. Gateward, 84 F.3d 670, 6 71 (3d Cir. 1996) (quoting 18 U.S.C. S 1202(a) (repealed 1 986)). In two key decisions, the Supreme Court addressed the interstate commerce aspect of this predecessor stat ute to S 922(g)(1).

First, in United States v. Bass, the Court construe d 18 U.S.C. S 1202(a) against the Government's contentio n that the statute "banned all possessions and receipts of firearms by convicted felons, and that no connection with in terstate

6commerce had to be demonstrated in individual cases ." 404

U.S. 336, 338 (1971). In rejecting the Government's expansive reading, the Court held that "the commerc e requirement in S 1202(a) must be read as part of th e `possesses' and `receives' offenses." Id. at 350. T hat is, the use of commas in the language of the statute implie d an enumeration of related ideas, all modified by the p hrase "in commerce or affecting commerce." The Court further opined that, "[a]bsent a clearer statement of intention fr om Congress than is present here, we do not interpretS 1202(a) to reach the `mere possession' of firearms" because otherwise, without "proof of some interstate commer ce nexus in each case, S 1202(a) dramatically intrudes upon traditional state criminal jurisdiction." Id.

Nearly six years later, the Court in Scarborough v. United States had the opportunity to address squarely"whet her proof that the possessed firearm previously travele d in interstate commerce is sufficient to satisfy the st atutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1 977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the
convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the dista nt past, gives its present intrastate possession a sufficien t nexus to
interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felonin-possession statute, this statutory construction applies equally to S 922(g)(1).

B.

Distilled to its core, we construe the precise ques tion raised by Singletary in this appeal to be whether t he proposition established in Scarborough survives as a viable statutory construct in the wake of United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison , 52 9 U.S. 598 (2000), and Jones v. United States, 529 U.S. 84 8 (2000). Specifically, Singletary contends that the felon-inpossession statute is facially unconstitutional bec ause the

7conduct it proscribes -- the intrastate possession of a

firearm -- does not have a substantial affect upon interstate commerce, and thus, does not constitute a valid exercise of Congress' authority under the Commerce Clause. Alternatively, as applied to his circumstan ces, Singletary maintains that the statute is unconstitu tional because there was no evidence that his possession o f the gun substantially affected interstate commerce, or indeed, that it had any effect whatsoever on commerce, inte rstate or intrastate. Consequently, Singletary argues that the District Court erred in failing to give the request ed jury instructions regarding the Government's burden of p roving that the possession of the gun substantially affect ed interstate commerce, and in barring defense counsel from arguing this point to the jury.

In Lopez, the Supreme Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. S 922(q)(1)(A), which made it a federal o ffense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." The Court concluded tha t Congress had exceeded its authority under the Comme rce Clause in enacting this statute because the statute neither regulated a commercial activity (possession of a gu n near a school) nor contained a requirement that the posses sion of a firearm in a school zone be connected in any way to interstate commerce. See 514 U.S. at 551, 567-68.

The Lopez Court initially reviewed the history of i ts Commerce Clause jurisprudence, stressing that Artic le I, S 8 of the Constitution gave Congress enumerated (a nd therefore limited) powers, particularly as against the antecedent powers of the states, and that an expans ive
construction of the Commerce Clause would effective ly read
out those limitations. See id. at 552-58. Consisten t with this jurisprudence, the Court identified three broa d areas that Congress may regulate under the Commerce Claus e: (1) "the use of the channels of interstate commerce "; (2) "the instrumentalities of interstate commerce, or person s and things in interstate commerce, even though the thre at may only come from intrastate activities"; and (3)"thos e activities having a substantial relation to interst ate

8commerce." Id. at 558-59. In Lopez , the Court dete rmined

that the plain language of the regulation at issue placed it in the third category. See id. at 559. But the Cour t also noted that S 922(q) was "a criminal statute that by its terms has nothing to do with `commerce' or any sort of ec onomic enterprise, however broadly one might define those terms."
Id. at 561.

Next, the Court observed that "S 922(q) contains no jurisdictional element which would ensure, through caseby-case inquiry, that the firearm possession in que stion affects interstate commerce." Id. On this point, it distinguished its prior holding in Bass, noting tha t there it had found the requisite nexus to interstate commerc e when the criminal statute contained a clause limiting it s reach to the receipt, possession, or transfer of firearms in commerce. See id. at 561-62. As we explained above, Bass invo lved a challenge to the former 18 U.S.C. S 1202(a), the pr edecessor to today's S 922(g)(1). Thus, while the Supreme Cou rt has never addressed S 922(g)(1) in its current form, it presumed that the former S 1202(a) would survive constitutio nal scrutiny if the Government provided evidence to sho w that the firearm was possessed or transported in commerc e. See Bass, 404 U.S. at 351. The Court, of course, establ ished in Scarborough the proposition that proof of a firearm 's prior
travel in interstate commerce demonstrated a suffic ient nexus to commerce to justify federal prohibition. T hus, the Court in Lopez concluded that, "[u]nlike the statut e in Bass, S 922(q) has no express jurisdictional elemen t which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect
on interstate commerce." 514 U.S. at 562.

Finally, the Court examined the legislative history of the regulation, observing that the Government itself ha d conceded in its brief that " `[n]either the statute nor its legislative history contain[s] express congressiona l findings regarding the effects upon interstate commerce of g un possession in a school zone.' " Id. at 562 (quoting Gov't Br. at 5-6). In the end, the Court rejected the Governm ent's contention "that possession of a firearm in a schoo l zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy"

9because to accept it would require "pil[ing] infere nce upon

inference in a manner that would bid fair to conver t congressional authority under the Commerce Clause t o a general police power of the sort retained by the St ates." Id. at 563, 567.

A year after Lopez, we had the occasion to consider its implications for the felon-in-possession statute,S 922(g)(1). In United States v. Gateward, we stated that we did "not understand Lopez to undercut the Bass/Scarborough proposition that the jurisdictional element `in or affecting commerce' keeps the felon firearm law well inside t he constitutional fringes of the Commerce Clause." 84 F.3d 670, 671 (3d Cir. 1996). Rather, we explained as fo llows:

The Lopez Court invalidated S 922(q) because "by its terms [it] has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms," and because "S 922(q) c ontains no jurisdictional element which would ensure, t hrough case-by-case inquiry, that the firearm posse ssion in question affects interstate commerce."

Id. at 671-72 (quoting Lopez, 514 U.S. at 561). Thu s, the Gateward Court, noting that the gun in question"had moved in interstate commerce," straightforwardly ap plied Scarborough and affirmed the conviction. Id. at 67 2. As Singletary correctly points out, however, our respe ct for the uniformity of decisions within this Court yields wh en a prior panel's holding conflicts with a holding of t he Supreme Court. Mennen Co. v. Atl. Mut. Ins. Co. , 1 47 F.3d 287, 294 n.9 (3d Cir. 1998). Thus, the Supreme Cour t's Commerce Clause jurisprudence in criminal cases sin ce Lopez necessitates a re-examination of our analysis in

Gateward.

C.

In United States v. Morrison, the Supreme Court invalidated 42 U.S.C. S 13981, a statute that feder alized "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an a nimus based on the victim's gender." See 529 U.S. at 607- 27. Although the Court acknowledged its statement in Lo pez

10that " `we have upheld a wide variety of congressio nal Acts

regulating intrastate economic activity where we ha ve concluded that the activity substantially affected interstate commerce,' " it stressed that "a fair reading of Lo pez shows that the noneconomic, criminal nature of the conduc t at
issue was central to our decision in that case." Id . at 610 (quoting Lopez, 514 U.S. at 559). The Court further explained that "Lopez's review of Commerce Clause c ase law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on intersta te commerce, the activity in question has been some so rt of economic endeavor." Id. at 611; see also id. at 613 (observing that "thus far in our Nation's history o ur cases have upheld Commerce Clause regulation of intrastat e activity only where that activity is economic in na ture").

Analogizing to the statute at issue in Lopez, the C ourt recognized that "S 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. " Id. Indeed, the Court noted that "such a jurisdictional element would lend support to the argument that S 13981 is sufficiently tied to interstate commerce . . . ." I d. Consequently, the Court read out the "costs of crim e" and "economic effects" that Congress had canvassed in t he extensive legislative history of the statute:

Given these findings and petitioners' argume nts, the concern that we expressed in Lopez that Cong ress might use the Commerce Clause to completely
obliterate the Constitution's distinction be tween national and local authority seems well foun ded. The reasoning that petitioners advance seeks to follow the
but-for causal chain from the initial occurr ence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate comm erce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationw ide, aggregated impact of that crime has substant ial effects on employment, production, transit, or consu mption.

Id. at 615 (citation omitted).

11Hence, after Morrison, the "economic effects" ratio nale

and congressional findings regarding such effects a lone will
not serve to save a criminal statute under the Comm erce Clause if no commercial activity is, in fact, invol ved. Notably, the Morrison Court (while not expressly ad dressing it) implicitly left intact the proposition set fort h in Scarborough. Namely, to satisfy the statutorily req uired nexus between the possession of a firearm by a conv icted felon and interstate commerce, the Government need only prove that the possessed firearm previously travele d in interstate commerce. See id. at 658 (Breyer, J., di ssenting) (noting that the Court reaffirmed Congress' power"t o enact laws that satisfy a commerce-related jurisdictional prerequisite -- for example, that some item relevan t to the federally regulated activity has at some time cross ed a state line" and citing, among other decisions, Bass and Scarborough).

Seven days after the Supreme Court announced Morris on, it rendered its decision in Jones v. United States, construing a criminal statute drafted with an expli cit interstate commerce jurisdictional element. Specifi cally, that statute, 18 U.S.C. S 844(i), makes it a federa l crime to damage or destroy, "by means of fire or an explosiv e, any . . . property used in interstate or foreign commer ce or in any activity affecting interstate or foreign commer ce." Jones had "tossed a Molotov cocktail through a window int o a home in Fort Wayne, Indiana, owned and occupied by his
cousin." 529 U.S. at 851. He was thereafter indicte d and convicted of this federal arson charge, and the Sev enth
Circuit affirmed his conviction.

The Supreme Court granted certiorari, framing the question presented as:

Whether, in light of United States v. Lopez, and the interpretive rule that constitutionally doub tful constructions should be avoided, 18 U.S.C. S 844(i) applies to the arson of a private residence; and if so, whether its application to the private resid ence in the present case is constitutional.

Id. at 852 (internal citations omitted). In the Sup reme Court, the Government argued that the Fort Wayne

12residence was indeed "used" in at least three activ ities

"affecting commerce" because: (1) the house was "co llateral to obtain and secure a mortgage from an Oklahoma le nder"; (2) the homeowner insured the residence with "a cas ualty insurance policy from a Wisconsin insurer"; and (3) the dwelling received "natural gas from sources outside Indiana." Id. at 855. However, the Court (in an opi nion authored by Justice Ginsburg) rejected these argume nts, reasoning that, "[w]ere we to adopt the Government' s expansive interpretation of S 844(i), hardly a buil ding in the
land would fall outside the federal statute's domai n." Id. at

857.

Importantly for our analysis (and particularly stri king because Justice Ginsburg was a Lopez dissenter), th e Court wrote: "Given the concerns brought to the fore in L opez, it is appropriate to avoid the constitutional question that would arise were we to read S 844(i) to render the `traditionally local criminal conduct' in which pet itioner Jones engaged `a matter for federal enforcement.' " Id. at 858 (quoting Bass, 404 U.S. at 350). The language J ustice Ginsburg quoted came from Bass, and two sentences l ater, she again quoted Bass when she wrote: "We have cautioned, as well, that `unless Congress conveys i ts purpose clearly, it will not be deemed to have sign ificantly changed the federal-state balance' in the prosecuti on of crimes." Id. (quoting Bass, 404 U.S. at 349). Thus, to avoid Lopez concerns, as well as to maintain "the federal -state balance" as a matter of statutory construction, the Court held that the statute "covers only property current ly used in commerce or in an activity affecting commerce." Id. at 858, 859. Notably, in so holding (although without explicitly stating), the Supreme Court chose not to extend the proposition established in Scarborough to home owne rship, as the Government had invited it to do. That is, th e Court did not expand Scarborough to mean that a piece of property, used in interstate commerce at some time in the past, gave its current intrastate use a sufficient nexus to
interstate commerce to fall within the ambit of the arson
statute.

Despite the continued vitality of Scarborough , Sin gletary would have us construe S 922(g)(1) without its bene fit. That

13is, he urges that we read the Supreme Court's use i n Jones

of the phrase "currently used in commerce or in an activity affecting commerce" as suggesting that the intersta te quality of a firearm, at some time in the past, has no bearing on its present day status for purposes of f ulfilling the interstate commerce element. According to Singl etary, such a construction would also avoid Lopez and Morr ison implications by restricting the scope of the statut e to apply only to guns and ammunition that are currently in o r affecting commerce. In short, abandoning Scarboroug h would permit us to conclude that Singletary's posse ssion of the gun was neither "used in commerce" nor had any present or imminent interstate aspect. Moreover, we would be constrained to conclude that the possession of t he gun did not occur in any commercial or transactional co ntext.
His conviction therefore could not stand because he essentially would have committed no federal crime u nder S 922(g)(1).

Missing from Singletary's analysis, however, is the recognition that, while Lopez and Morrison were que stions concerning the power of Congress to regulate activi ties substantially affecting interstate commerce, S 922( g)(1) regulates the possession of goods moved in intersta te commerce. The jurisdictional element in S 922(g)(1) distinguishes it from the statutes considered in Lo pez and Morrison. Section 922(g)(1), by its very terms, onl y regulates those weapons affecting interstate commerce by bein g the subject of interstate trade. It addresses items sen t in
interstate commerce and the channels of commerce themselves, delineating that the latter be kept cle ar of firearms. Thus, an analysis of the kind utilized in Lopez or Morrison is neither appropriate nor needed.

Jones provides no further insight for us. While the law challenged in Jones did have a jurisdictional eleme nt, the challenge there involved the alleged use of a resid ence in activities affecting interstate commerce. The ratio nale used by the Jones Court to hold that the federal arson s tatute only encompassed "property currently used in commer ce or in an activity affecting commerce" has little impac t on the assessment of whether firearms moved through inters tate commerce are subject to congressional regulation. T he

14analogy urged by Singletary is made even more

incongruous because the Jones Court neither express ly overruled Scarborough nor rejected its directly app licable proposition relevant to interpreting the gun posses sion

statutes.

Accordingly, our prior decision in Gateward remains the law of this circuit, and we are bound to respect it , absent an en banc consideration. See 3d Cir. I.O.P. 9.1; A m. Civil
Liberties Union of N.J. ex rel. Lander v. Schundler , 168 F.3d 92, 98 n.6 (3d Cir. 1999). In that vein, as we note d earlier in the margin, we denied Singletary's request for a n initial en banc consideration by this Court. Moreover, even if there were merit to Singletary's argument that the Suprem e Court's trinity of Commerce Clause decisions have somehow weakened the precedential value of Scarboro ugh, we may not precipitate its decline. The Supreme Cou rt itself has admonished lower courts to follow its directly applicable precedent, even if that precedent appear s weakened by pronouncements in its subsequent decisi ons, and to leave to the Court itself " `the prerogative of overruling its own decisions.' " Agostini v. Felton , 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). We have always sought to adhere strictly t o that counsel. See United States v. Abuhouran, 161 F.3d 2 06, 215 n.9 (3d Cir. 1998), cert. denied, 526 U.S. 1077 (1999); Maldonado v. Houstoun, 157 F.3d 179, 190 (3d Cir. 1 998), cert. denied, 526 U.S. 1130 (1999); United States v . Bishop, 66 F.3d 569, 588 n.28 (3d Cir. 1995); Swin Resource Sys., Inc. v. Lycoming County, 883 F.2d 245, 255 (3d Cir. 1989).

We considered S 922(g)(1)'s post-Lopez constitution ality in
Gateward and decided in favor of the Government. Mo rrison and Jones give no reason beyond what was already pr esent in Lopez to conclude that S 922(g)(1) lies beyond C ongress' Commerce Clause power. Indeed, our conclusion in Gateward was uniformly shared by eight other circui ts at the time of that decision. See 84 F.3d at 672 (citi ng cases from the Second, Fourth, Sixth, Seventh, Eighth, Ni nth, Tenth, and Eleventh Circuits). Our present reaffirm ation of that holding joins those same eight circuits, all o f which
have readdressed this issue in the wake of Morrison and

15Jones. See United States v. Dupree, 258 F.3d 1258, 2001

WL 835847, at *1 & n.1 (11th Cir. July 25, 2001); U nited States v. Stuckey, 255 F.3d 528, 529-30 (8th Cir. 2 001); United States v. Gallimore, 247 F.3d 134, 137-38 (4 th Cir. 2001); United States v. Davis, 242 F.3d 1162, 1162- 63 (9th Cir. 2001) (per curiam), petition for cert. filed, No. 00-10772 (U.S. June 18, 2001); United States v. Santiago , 2 38 F.3d 213, 216-17 (2d Cir. 2001) (per curiam), cert. deni ed, 121 S. Ct. 2016 (2001); United States v. Dorris, 236 F.3d 582, 584- 86 (10th Cir. 2000), cert. denied, 121 S. Ct. 1635 (2001); United States v. Napier, 233 F.3d 394, 399-402 (6th Cir. 2000); United States v. Wesela, 223 F.3d 656, 659-6 0 (7th Cir. 2000), cert. denied, 121 S. Ct. 1145 (2001). W e are aware of no appellate court that has decided differ ently.

III.

Accordingly, we conclude that the proof in this cas e that the gun had traveled in interstate commerce, at som e time in the past, was sufficient to satisfy the intersta te commerce element, and therefore, we will affirm the judgment of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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