RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0046p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

DONTE TIMOTHY BACON, 

Defendant-Appellant. 

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No. 17-1166 

Appeal from the United States District Court 

for the Western District of Michigan at Grand Rapids. 

No. 1:15-cr-00099—Robert Holmes Bell, District Judge. 

Decided and Filed: March 8, 2018 

Before: COOK, McKEAGUE, and STRANCH, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C., 

Knoxville, Tennessee, for Appellant. Justin M. Presant, UNITED STATES ATTORNEY’S 

OFFICE, Grand Rapids, Michigan, for Appellee. 

_________________ 

OPINION 

_________________ 

JANE B. STRANCH, Circuit Judge. Donte Timothy Bacon appeals a district court 

judgment convicting him of selling a firearm to a prohibited person in violation of 18 U.S.C. 

§ 922(d)(1) and possessing a firearm with an obliterated serial number in violation of 18 U.S.C. 

§ 922(k). Bacon entered oral guilty pleas to the foregoing charges at his final pretrial 

conference. The Government agreed to dismiss five other charges as part of Bacon’s plea 

>
No. 17-1166 United States v. Bacon Page 2

agreement, which was never committed to writing. Bacon now argues that the district court 

lacked subject matter jurisdiction, attacks the sufficiency of the Government’s evidence, and 

challenges the constitutionality of the federal criminal statutes under which he was convicted. 

The Government responds that subject matter jurisdiction exists and that Bacon waived the rest 

of his arguments by entering an unconditional plea. We AFFIRM. 

I. FACTUAL BACKGROUND 

A federal grand jury indicted Bacon on seven firearm-related counts in June 2015. 

Counts 1 through 4 and Count 6 of the indictment alleged Bacon sold firearms to prohibited 

persons in violation of 18 U.S.C. § 922(d)(1). Counts 5 and 7 charged Bacon with possession of 

a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). At Bacon’s final 

pre-trial conference on November 3, 2016, Bacon appeared with counsel and entered oral guilty 

pleas to Counts 1 and 5. The Government agreed to dismiss the remaining charges in the 

indictment at the time of sentencing. 

Regarding Count 1, Bacon testified at the time of his plea that he “purchased the firearm” 

and “sold it . . . with reasonable cause to know that [the purchaser was] a felon” on or about 

August 14, 2014. He sold this firearm from where he lived at the time in Grand Rapids, 

Michigan. The Government proffered that the person who purchased the firearm covered by 

Count 1 had been convicted of a felony prior to the sale. Although not an element of the offense 

stated in Count 1, the Government also proffered that the firearm Bacon sold on August 14 had 

“traveled in interstate commerce.” 

Regarding Count 5, Bacon confirmed that he sold a different firearm, a semiautomatic 

pistol with an obliterated serial number, to a prohibited person on August 29, 2014. This sale 

took place at the same Grand Rapids house as the August 14 sale. The Government proffered 

that the firearm in Count 5 “was manufactured in Ohio” and thus “had in fact traveled in 

interstate commerce before it was sold.” Bacon also confirmed that he removed the serial 

number from the firearm that he sold on August 29. Defense counsel stipulated to all of the facts 

proffered by the Government and expressly confirmed that Bacon was “satisfied” with the 

factual record. 
No. 17-1166 United States v. Bacon Page 3

On January 25, 2017, the district court sentenced Bacon to sixty months for each offense 

and ordered that the sentences run concurrently.1

 The district court entered its judgment the 

following day, and Bacon filed this timely appeal. 

II. ANALYSIS 

A. Subject Matter Jurisdiction 

We turn first to Bacon’s challenge to the district court’s subject matter jurisdiction. 

“Questions of subject matter jurisdiction are questions of law that are reviewed de novo.” United 

States v. Bahhur, 200 F.3d 917, 922 (6th Cir. 2000) (quoting United States v. Yannott, 42 F.3d 

999, 1003 (6th Cir. 1994)). Bacon argues that absent a nexus “linking the criminalized 

conduct . . . to an effect on interstate commerce,” jurisdiction is lacking “because Congress has 

no authority to federally criminalize the conduct.” This argument conflates Congress’s power to 

legislate with the authority of the federal courts to hear cases. The two issues are distinct. 

Although “the interstate commerce element is commonly referred to as a ‘jurisdictional 

element,’ the failure of the government to prove a nexus between the crime and interstate 

commerce is not jurisdictional in a sense that it deprives this court of subject matter jurisdiction.” 

United States v. Turner, 272 F.3d 380, 390 (6th Cir. 2001). The nexus requirement “is 

jurisdictional only in the sense that without that nexus there can be no federal crime; it does not 

affect a court’s power to adjudicate a case.” United States v. Martin, 526 F.3d 926, 933 (6th Cir. 

2008). In other words, if Congress acts outside the scope of its authority under the Commerce 

Clause when enacting legislation, the validity of the statute is implicated, not the authority of the 

federal courts to adjudicate prosecution of offenses proscribed by the statute.2

 1

At sentencing there was some discussion of whether Bacon had reason to know that one of the firearms 

would later be sold in Canada, which Bacon mentions in his brief. This discussion pertained to a sentencing 

enhancement. Bacon has challenged only his conviction, not his sentence, which means the Canada discussion does 

not bear on our decision. 

2

The Supreme Court’s decision in Torres v. Lynch, 136 S. Ct. 1619 (2016), on which Bacon relies, does not 

hold otherwise. Torres instead clarifies that the interstate commerce nexus is a jurisdictional “element” that, like the 

substantive elements of a federal crime, must be proven. Id. at 1624, 1630. 
No. 17-1166 United States v. Bacon Page 4

Federal courts have original jurisdiction to adjudicate “all offenses against the laws of the 

United States.” 18 U.S.C. § 3231. Bacon may challenge the district court’s subject matter 

jurisdiction only if he can “establish that the face of the indictment failed to charge the elements 

of a federal offense.” Martin, 526 F.3d at 934. Bacon pleaded guilty to violations of 18 U.S.C. 

§ 922(d)(2) and § 922(k), two federal criminal statutory provisions that encompass offenses 

against the laws of the United States. He nevertheless asserts that “neither the indictment nor the 

facts supporting the plea and sentence established that the wholly intrastate sale of a firearm had 

a substantial effect on interstate commerce.” This argument misses the mark: The indictment 

contained all of the requisite elements of both § 922(d)(1) and § 922(k), thus establishing subject 

matter jurisdiction. See Martin, 526 F.3d at 934. This conclusion is underscored by Bacon’s 

“admi[ssion of] the factual basis for jurisdiction as charged in his indictment.” Turner, 272 F.3d 

at 390. The district court had subject matter jurisdiction over Bacon’s prosecution. 

In Martin this court construed similar arguments regarding an insufficient interstate 

commerce nexus as going to the sufficiency of the evidence. 526 F.3d at 933–34. In Bahhur, the 

defendant argued that the court lacked subject matter jurisdiction because the monetary value of 

his offenses was below the dollar amount listed in the statute. 200 F.3d at 922. There, too, we 

reframed the jurisdictional argument as “an attack against the sufficiency of the evidence 

necessary to sustain a conviction.” Id. We will adopt this approach and reframe Bacon’s subject 

matter jurisdiction arguments as sufficiency of the evidence arguments. (This sufficiency 

challenge is in addition to his arguments that the applicable federal criminal statutes are 

unconstitutional.) The Government contends, however, that Bacon waived all of his challenges 

to his conviction by entering an unconditional plea. 

B. Waiver 

At his final pretrial conference, Bacon entered an oral guilty plea to Counts 1 and 5. 

Bacon did not reserve on the record any issues for review, nor was his plea agreement reduced to 

writing. His plea therefore includes neither any explicit waivers, nor any explicit reservation of 

issues for appeal. The Government argues that this constituted an “unconditional plea” by which 

Bacon waived all of his non-jurisdictional arguments. As discussed above, Bacon raises no true 
No. 17-1166 United States v. Bacon Page 5

jurisdictional claims. Our task is to determine whether Bacon waived or otherwise forfeited his 

arguments by not raising them below or expressly preserving them. 

This court has held that arguments going to the sufficiency of the evidence are waived if 

not presented to the district court or preserved under Federal Rule of Criminal Procedure 11. 

See, e.g., Martin, 526 F.3d at 931–33 (holding that the defendant waived his right to appeal the 

sufficiency of the evidence that the firearm traveled in or affected interstate commerce by 

entering a plea without presenting that argument or reserving it for appeal); United States v. 

Pickett, 941 F.2d 411, 416 (6th Cir. 1991) (holding that there exists an “affirmative duty on the 

defendant to preserve all potential collateral challenges through the preservation mechanism of 

Rule 11(a)(2)”). Bacon admitted the factual predicate set forth in his indictment. In addition, his 

counsel stipulated to all of the facts proffered by the government and assured the district court 

that he was satisfied with the factual record. We thus conclude that Bacon has waived his 

sufficiency of the evidence arguments.

Bacon’s constitutional arguments present a different question. The Supreme Court 

recently issued a decision in Class v. United States, No. 16-424, 2018 WL 987347 (Feb. 21, 

2018), a case addressing “whether a guilty plea by itself bars a federal criminal defendant from 

challenging the constitutionality of the statute of conviction on direct appeal.” Id. at *4. In 

Class, the defendant raised constitutional challenges to the statute of conviction at a preliminary 

hearing, but ultimately entered a guilty plea pursuant to a written agreement. Id. at *2. Under 

the terms of his plea agreement, Class waived a number of appellate rights and preserved several 

others. Id. at *3. The agreement was silent on the issue of constitutional challenges. Id. The 

Supreme Court held that such silence did not constitute waiver, determining that a defendant 

does not “relinquish his right to appeal the District Court’s constitutional determinations simply 

by pleading guilty.” Id. at *4. 

Like Class, the constitutional arguments Bacon mounts “challenge the Government’s 

power to criminalize [Bacon]’s (admitted) conduct,” and thus could not “have been cured 

through a new indictment.” Id. at *6 (citation and internal quotation marks omitted). 

Accordingly, Bacon’s guilty plea “does not bar a direct appeal in these circumstances.” Id. This 

conclusion is not affected by Bacon’s failure to raise his constitutional arguments before the 
No. 17-1166 United States v. Bacon Page 6

district court. Class did so, but the Supreme Court’s decision does not turn on that fact and 

nothing in the opinion suggests that its holding is limited to cases where the defendant has raised 

the constitutional challenge before entering a plea. To the contrary, the relevant portion of the 

Court’s analysis relies on a number of cases where that was not true. Id. at *4–*6 (discussing, 

e.g., United States v. Broce, 488 U.S. 563 (1989); Blackledge v. Perry, 417 U.S. 21 (1974); and 

Tollett v. Henderson, 411 U.S. 25 (1973)). Accordingly, pursuant to Class’s instructions, we 

hold that Bacon did not waive his constitutional arguments. 

C. Constitutional Challenges 

Bacon raises constitutional challenges to both of the statutory provisions under which he 

was convicted, 18 U.S.C. § 922(d)(1) and (k). Even though Bacon has not waived these 

arguments, the standard of review is constrained by his failure to raise these arguments before 

the district court. “While constitutional challenges are typically reviewed de novo, when the 

argument was not raised at the district court ‘Sixth Circuit precedent requires application of the 

plain error standard.’” United States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008) (quoting 

United States v. Barton, 455 F.3d 649, 652 (6th Cir. 2006)). Plain error review entails first 

determining whether there was an error in the district court. United States v. Martin, 438 F.3d 

621, 628 (6th Cir. 2006) (quoting United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993)). 

If there was no error, then the issue has been resolved. Id. If there was an error, the reviewing 

court must next determine whether the error was plain. Id. To show plain error, an appellant 

must establish that “(1) an error occurred; (2) the error was obvious or clear; (3) the error 

affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public 

reputation of the judicial proceedings.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004) 

(citing United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)). We apply this standard 

to each of Bacon’s constitutional challenges. 

1. Section 922(d)(1) 

Bacon first argues that § 922(d)(1) is unconstitutional because it exceeds Congress’s 

power to legislate under the Commerce Clause, U.S. Const. art. 1, § 8, cl. 3. He premises this 

argument on the lack of a “jurisdictional element connecting the wholly intrastate sale of a 
No. 17-1166 United States v. Bacon Page 7

firearm to a substantial effect on interstate commerce.” We addressed the same argument in 

United States v. Rose, 522 F.3d 710, 716–19 (6th Cir. 2008), which Bacon contends conflicts 

with the Supreme Court’s Commerce Clause jurisprudence. In fact, the Rose decision is based 

on and consistent with the very authority on which Bacon relies. See 522 F.3d at 717 (discussing 

United States v. Lopez, 514 U.S. 549, 558 (1995)). Rose explored the Supreme Court’s 

Commerce Clause jurisprudence and determined that firearm sales under § 922(d)(1) constitute 

“activities having a substantial relation to interstate commerce,” and that “guns are a fungible 

commodity for which there was an established interstate market.” Id. at 717–18 (quoting Lopez, 

514 U.S. at 558–59). Rose also concluded that the legislative history of § 922 “support[ed] the 

logical connection between the intrastate sale and disposition of firearms and the interstate 

market in firearms.” Id. at 718. Accordingly, Rose held, “§ 922(d)(1) is a proper use of 

Congress’ Commerce Clause power.” Id. at 719. Our decision in Rose controls—and 

forecloses—Bacon’s arguments regarding the lack of an interstate commerce element in 

§ 922(d)(1). Even if we could reconsider the issue, we find no fault in the analysis in that case. 

Bacon also contends that his § 922(d)(1) conviction infringes on his Second Amendment 

right to bear arms––again for the first time on appeal––warranting review for plain error only. 

Bacon’s § 922(d)(1) conviction pertains to the sale of a firearm to a felon. Bacon has not 

provided and we are unable to find any historical indication that the Second Amendment 

encompasses such sales. All of the relevant caselaw supports the opposite conclusion. See, e.g., 

D.C. v. Heller, 554 U.S. 570, 626–27 (2008) (“[N]othing in our opinion should be taken to cast 

doubt on longstanding prohibitions on the possession of firearms by felons . . . or laws 

imposing conditions and qualifications on the commercial sale of arms.”); United States v. 

Carey, 602 F.3d 738, 741 (6th Cir. 2010) (“After Heller, this Court affirmed that prohibitions on 

felon possession of firearms do not violate the Second Amendment.”). We therefore find that the 

district court did not plainly err by accepting Bacon’s plea in Count 1 for a violation of 

§ 922(d)(1).3

 3

Although the briefing is somewhat confusing, Bacon’s specific Second Amendment arguments appear 

only in the section of his brief pertaining to § 922(d)(1). Even if he had raised Second Amendment arguments 

regarding § 922(k), we are persuaded by the Third Circuit’s analysis in United States v. Marzzarella, 614 F.3d 85, 
No. 17-1166 United States v. Bacon Page 8

2. Section 922(k) 

Similar to his interstate commerce challenges to § 922(d)(1), Bacon asserts that § 922(k) 

is invalid because “the mere fact that a firearm has, at some point, crossed state lines should not 

suffice to give Congress the power to criminalize the possession of a firearm with serial numbers 

that have been removed.” Travel in interstate commerce is an express element of § 922(k) 

(covering firearms that have “at any time, been shipped or transported in interstate or foreign 

commerce”). This court has held with respect to a related subsection, § 922(g), that “[r]equiring 

the government in each case to prove that a felon has possessed a firearm ‘in or affecting 

commerce’ ensures that the firearm possession in question affects interstate commerce and saves 

[the provision].” United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996); see also United 

States v. Chesney, 86 F.3d 564, 568 (6th Cir. 1996) (noting that the First, Second, Third, Fourth, 

Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have reached the same conclusion on 

§ 922(g)); United States v. McBee, 295 F. App’x 796, 798 (6th Cir. 2008) (reaffirming Chesney’s 

Commerce Clause holding). The same principle applies to § 922(k): the interstate commerce 

element, which Bacon admitted when entering his plea, ensures that the firearm in question 

affects interstate commerce and saves the statute from any jurisdictional defects. The district 

court did not err by accepting Bacon’s plea in Count 5 for a violation of § 922(k), and we 

therefore need not address the other requirements of plain error review. 

In sum, none of Bacon’s constitutional arguments supports a finding that the district court 

erred. These arguments therefore do not undermine his convictions. 

III. CONCLUSION 

Under Sixth Circuit precedent, Bacon’s subject matter jurisdiction arguments fail, even 

when construed as challenges to the sufficiency of the evidence. Bacon waived these arguments 

by failing to present them below or to preserve them for appeal, and his constitutional arguments 

are unavailing. We accordingly AFFIRM Bacon’s convictions. 

 100 (3d Cir. 2010) (rejecting a defendant’s Second Amendment challenge and finding that “§ 922(k) would pass 

muster under either intermediate scrutiny or strict scrutiny”).