UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5416

ANTOINE LAMONTE MOBLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

William L. Osteen, Sr., District Judge.

(CR-95-30)

Submitted: November 28, 1995

Decided: March 28, 1996

Before HALL and NIEMEYER, Circuit Judges,

and PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Walter C. Holton, Jr., United States

Attorney, Clifton T. Barrett, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Antoine Lamonte Mobley appeals his conviction and

sentence pursuant to his guilty plea to being a felon in possession of

a firearm which moved in interstate commerce. 18 U.S.C. § 922(g)(1)

(1988 & Supp. V). The Appellant raises two issues on appeal. First,

Appellant suggests that § 922(g) is unconstitutional in light of the

Supreme Court's recent opinion in United States v. Lopez, ___ U.S.

___, 63 U.S.L.W. 4343 (U.S. Apr. 26, 1995) (No. 93-1260). Second,

he asserts that the term of supervised release announced at the sentencing hearing controls over the inconsistent term found in the written formal judgment. Because we find that § 922(g) withstands

constitutional scrutiny, we affirm his conviction. However, we vacate

Mobley's sentence and remand for the sole purpose of correcting the

clerical error concerning the term of supervised release in the written

judgment.

Appellant argues that the Supreme Court's decision in United

States v. Lopez mandates reversal of his conviction. We disagree.

Although we have not addressed the impact of Lopez on a § 922(g)

conviction, two other circuits have considered and rejected similar

constitutional challenges. See United States v. Mosby, 60 F.3d 454,

456 (8th Cir. 1995); United States v. Hanna, 55 F.3d 1456, 1462 (9th

Cir. 1995).

We find the logic of the Eighth and Ninth Circuit decisions persuasive. The Eighth Circuit quoted the "in or affecting commerce" language of § 922(g) to find that the section logically belonged in a

category of activity that Congress may regulate. Mosby, 60 F.3d at

456 n.3; see Lopez, 63 U.S.L.W. at 4346. Similarly, the Ninth Circuit

determined that § 922(g) possessed the jurisdictional element which

the provision at issue in Lopez lacked. Hanna, 55 F.3d at 1462 n.2

The Hanna court found that the requirement that the firearm at some

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time been involved in interstate commerce to be sufficient to establish

its constitutionality under the Commerce Clause. Id.

Provisions criminalizing possession of firearms under the Commerce Clause have continuously been upheld. A minimal connection

with interstate commerce is sufficient to allow Congress to assert its

broad regulatory powers in the area of firearm possession. See

Scarborough v. United States, 431 U.S. 563, 575 (1977). When

addressing a number of federal firearm provisions, including

§ 922(g), this court held that "[t]he federal statute criminalizing the

possession of a firearm by a felon [18 U.S.C.A.§ 924(e) (West Supp.

1995)] does not violate the Commerce Clause because sufficient

nexus exists between the harm of firearms and interstate concerns."

United States v. Presley, 52 F.3d 64, 67 (4th Cir. 1995). We find that

Congress properly enacted § 922(g). Accordingly, we affirm Mobley's conviction.

Mobley and the Government agree that the controlling term of

supervised release should be the three-year term announced at the

sentencing hearing and not the five-year term stated in the formal

written judgment. If there is any conflict between the written order

and oral sentence, the oral sentence is controlling. United States v.

Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965). If a sentence is imposed

in violation of the law, the proper remedy is to remand the case so

that the district court may correct the written judgment so it conforms

with the oral pronouncement at the sentencing hearing. See Fed. R.

Crim. P. 35(a). We therefore vacate the portion of the sentence in the

written judgment dictating the term of supervised release. We remand

for the solitary purpose of allowing the district court to correct the

written judgment to conform with the three-year supervised release

period announced at the sentencing hearing.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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