United States v. Turk

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21099
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY DEAN TURK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-309-ALL
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Larry Dean Turk appeals his guilty-plea conviction under
18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted
felon. He argues that the factual basis for his guilty plea,
which showed his intrastate possession of a firearm manufactured
outside the state, was insufficient to establish the nexus with
interstate commerce required by 18 U.S.C. § 922(g)(1). He
contends, in light of the Supreme Court’s recent decisions in

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Jones v. United States, 529 U.S. 848 (2000) and United States v.
Morrison, 529 U.S. 598 (2000), that 18 U.S.C. § 922(g)(1) can no
longer “constitutionally be construed to cover the intrastate
possession of a handgun merely because it traveled across state
lines at some point in the past.” He acknowledges that his claim
is foreclosed by existing Fifth Circuit precedent and states that
he raises the claim solely to preserve it for possible Supreme
Court review.
We reject the Government’s argument that Turk has waived his
ability to challenge the sufficiency of the factual basis of his
guilty plea by pleading guilty unconditionally. This court’s
precedents make it clear that, nothwithstanding an unconditional
plea of guilty, this court has the power to review, and will
reverse on direct appeal, if the factual basis for the plea fails
to establish an element of the offense of conviction. United
States v. White, 258 F.3d 374, 380, 384 (5th Cir. 2001)(factual
basis did not establish the existence of the predicate offense
required for conviction under 18 U.S.C. § 922(g)(9)); United
States v. Johnson, 194 F.3d 657, 659, 662 (5th Cir. 1999),
vacated and remanded, 530 U.S. 1201 (2000), opinion reinstated
with modification, 246 F.3d 749 (5th Cir. 2001)(factual basis did
not establish that arson of church established the interstate
commerce nexus required under 18 U.S.C. § 844(i)). Because Turk
raised this issue at his rearraignment in the district court with
the specific intention of preserving it for review, the harmless-

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error standard of review in FED. R. CRIM. P. 11(h) applies to his
challenge to the sufficiency of the factual basis.
Turk’s claim is foreclosed by circuit precedent. See United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.
denied, 122 S. Ct. 1113 (2002). Accordingly, the district
court’s judgment is AFFIRMED.

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