UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4043

SCOTTY ANTOINE DAVIS, a/k/a

Antoine Davis,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-95-34-MU)

Submitted: August 27, 1996

Decided: November 12, 1996

Before NIEMEYER and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Robert J. Conrad, Jr., Assistant

United States Attorney, Marlene Bishop, Assistant United States

Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Scotty Antoine Davis pleaded guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1988). Davis was

sentenced to serve 211 months imprisonment to be followed by four

years supervised release. He appeals, asserting that the federal government lacked the jurisdiction to charge a violation of the Firearms

Owners' Protection Act because Congress exceeded its Commerce

Clause powers by enacting § 922(g)(1). We affirm.

In North Carolina on January 18, 1995, Davis possessed a Ruger

9mm semi-automatic pistol and several 9mm caliber cartridges, with

which Davis twice shot Jeffrey Kevin Moore following an alleged

altercation.* (JA Vol II at 6). The government determined that the

pistol was manufactured in Connecticut or Arizona and the ammunition was manufactured in Minnesota.

Davis's challenge to the constitutionality of § 922(g)(1) is based

upon the recent United States Supreme Court decision in United

States v. Lopez, ___ U.S. ___, 63 U.S.L.W. 4343 (U.S. Apr. 26, 1995)

(No. 93-1260). He claims that Congress exceeded its Commerce

Clause powers in enacting § 922(g)(1). In Lopez, the Supreme Court

invalidated 18 U.S.C. § 922(q)(1)(A) (1988 & Supp. V), a provision

in the Gun-Free School Zones Act of 1990, making possession of a

firearm within 1000 feet of a school a federal offense. Lopez, 63

U.S.L.W. at 4343.

The Court struck down the conviction in part because the statute

"contains no jurisdictional element which would ensure, through case-

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*There is some dispute as to whether or not the shooting was done in

self-defense. But the district court stated that even if the shooting were

in self-defense, the imposed sentence would not be effected.

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by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 4347. Unlike the statute at issue in Lopez, the

statute in question in this case, § 922(g), does contain such a jurisdictional element because it applies only to firearms having "an explicit

connection with or effect on interstate commerce." Id. at 4347.

Provisions criminalizing possession of firearms under the Commerce Clause have continually been upheld. When addressing a number of federal firearm provisions, including § 922(g), this court has

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).

The Supreme Court has held that for § 922(g)'s predecessor statute

there was "no indication that Congress intended to require any more

than the minimal nexus that the firearm have been, at some time, in

interstate commerce." Scarborough v. United States, 431 U.S. 563,

575 (1977). This minimal connection with interstate commerce is sufficient to allow Congress to assert its broad regulatory powers in the

area of firearm possession. See id. Because the government offered

proof that both the pistol and the ammunition were manufactured outside the State of North Carolina, the state of possession, Davis's argument must fail and his conviction and sentence be affirmed.

AFFIRMED

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