United States of America v. Ivan Constant

*Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 05-4518
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UNITED STATES OF AMERICA
v.
IVAN CONSTANT,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cr-00434)
District Judge: Honorable Anita B. Brody
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Submitted under Third Circuit LAR 34.1(a)
September 12, 2006
BEFORE: FUENTES, FISHER, AND BRIGHT*, Circuit Judges
(Filed: September 20, 2006)
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OPINION
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BRIGHT, Circuit Judge.
This case comes before us a third time. A jury convicted Ivan Constant of being a

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felon in possession of a firearm, 18 U.S.C. § 922(g)(1), we affirmed, and the Supreme
Court remanded the case to us for consideration in light of United States v. Booker, 543
U.S. 220 (2005). See United States v. Constant, 117 Fed. Appx. 225 (3d Cir. 2004)
(unpublished), vacated by 544 U.S. 971 (2005) (mem.). We remanded the case to the
District Court. See United States v. Constant, No. 04-1025 (3d Cir. Aug. 16, 2005)
(unpublished). The District Court resentenced Constant to seventy-two months’
imprisonment, three years’ supervised release, and imposed a fine of $400 and a special
assessment of $100. Constant now appeals the judgment of conviction in order to
challenge only the constitutionality of the felon in possession statute.
Constant challenged the constitutionality of the felon in possession statute in his
first appeal before us, alleging it violated the Commerce Clause of the United States
Constitution, see United States v. Lopez, 514 U.S. 549 (1995). We rejected his challenge
because it is foreclosed by our opinion in United States v. Singletary, 268 F.3d 196, 205
(3d Cir. 2001). See Constant, 117 Fed. Appx. at 226. Both the Supreme Court’s remand
to us and our remand to the District Court directed reconsideration only of Constant’s
sentence in light of Booker. See United States v. Constant, 544 U.S. 971 (2005); No. 04-
1025 (3d Cir. Aug. 16, 2005). The challenge Constant presents here to his conviction,
rather than his sentence, is thus beyond the scope of remand and we will not revisit the
issue. See, e.g., In re City of Philadelphia Litigation, 158 F.3d 711, 717-18 (3d Cir.
1998) (under law of the case doctrine appellate panel will generally not reconsider
question already resolved by previous panel in same case); United States v. Copple, 24

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F.3d 535, 549 n.22 (3d Cir. 1994) (applying law of the case doctrine in criminal context);
United States v. Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (same).
Constant recognizes that he can obtain no relief in this Court, but raises the issue
“to [attempt to] preserve the claim for review by the Supreme Court of the United States
and/or for any subsequent collateral proceeding.”
Accordingly, we will affirm the conviction and sentence.
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