UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4767

RODNEY EUGENE LEAK,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(CR-96-43)

Submitted: May 20, 1997

Decided: June 13, 1997

Before MURNAGHAN, WILKINS, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant

Federal Public Defender, Greensboro, North Carolina, for Appellant.

Walter C. Holton, Jr., United States Attorney, Timika Shafeek, 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Unpublished opinions are not binding precedent in this circuit.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:

Rodney Eugene Leak appeals his conviction, after a guilty plea, for

possession of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g) (1994). He was sentenced to 180 months imprisonment, the

lowest sentence in the applicable guidelines range. In his plea agreement he reserved the right to challenge the constitutionality of

§ 922(g), contending that the statute violates the Commerce Clause.

Finding no error, we affirm.

This court has rejected the argument that 18 U.S.C.§ 922(g) violates the Commerce Clause. In United States v. Wells, 98 F.3d 808,

811 (4th Cir. 1996), this court held that, unlike the Gun Free School

Zone statute at issue in United States v. Lopez , 514 U.S. 549 (1995),

the felon-in-possession statute requires the government to prove a

nexus between the firearm and interstate commerce. Thus, the statute

is constitutional.

Leak's counsel recognizes that his claim is precluded by Wells.

However, he urges this court to hear this case in banc with a view

toward overruling Wells. Every court considering the constitutionality

of § 922(g) has found that it passes constitutional muster. See, e.g.,

United States v. Gateward, 84 F.3d 670, 671-72 (3d Cir. 1996), cert.

denied, 117 S. Ct. 268 (1996); United States v. Abernathy, 83 F.3d 17,

20 (1st Cir. 1996); United States v. Spires, 79 F.3d 464, 466 (5th Cir.

1996); United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996);

United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), cert.

denied, 117 S. Ct. 262 (1996); United States v. Sorrentino, 72 F.3d

294, 296-97 (2d Cir. 1995); United States v. Bolton, 68 F.3d 396, 400

(10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996); United States

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

116 S. Ct. 1364 (1996); United States v. Hanna , 55 F.3d 1456, 1461-

62 & n.2 (9th Cir. 1995). Further, the Supreme Court has rejected a

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Commerce Clause challenge to the predecessor statute to § 922(g).

Scarborough v. United States, 431 U.S. 563, 575 (1977). Thus, an in

banc hearing is not warranted.

Leak's pro se challenges are also meritless. He claims that the

search of his sister's home, where the gun was found, was improper,

and that he was essentially powerless to avoid violating the statute.

Leak's voluntary guilty plea waived all antecedent, non-jurisdictional

errors. Tollett v. Henderson, 411 U.S. 258 (1973). Because the facts

underlying these challenges were known to Leak before he entered his

plea, and because the challenges do not call into question the trial

court's jurisdiction, these claims are foreclosed by his plea.

Our review of the entire record, including transcripts of the plea

hearing and sentencing hearing, reveals no other potentially meritorious issues for appeal. The district court conducted a plea hearing in

accordance with Fed. R. Crim. P. 11. During the hearing, the court

inquired as to Leak's competence and his understanding of the proceedings. The court ensured that Leak understood the charges against

him, the penalties he faced, and his rights to a jury trial, assistance of

counsel, and to testify on his own behalf. Further, the court asked

Leak whether he was satisfied with his counsel, and Leak said that he

was satisfied. The court also determined that there was a factual basis

for the plea.

The sentencing transcript reveals that Leak reviewed the presentence report with his attorney, and he did not object to anything in the

report. The district court offered Leak the opportunity for allocution

at sentencing and Leak apologized for his offense. The court sentenced Leak to the lowest sentence within the properly-calculated

guidelines range, and his sentence was dictated by a statutory mandatory minimum. Leak's guilty plea was knowing and voluntary and he

was properly sentenced.

We affirm Leak's conviction. We deny without prejudice counsel's

motion to withdraw at this stage of the proceedings. This court

requires counsel to inform his client, in writing, of his right to petition

the Supreme Court of the United States for further review. If the client requests that a certiorari petition be filed, but counsel believes that

such a petition would be frivolous, counsel may then move in this

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court for leave to withdraw from representation. Counsel's motion

must state that a copy thereof was served on his client. We dispense

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

would not significantly aid the decisional process.

AFFIRMED

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