United States v. Florence

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20073
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL FLORENCE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-557-ALL
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Darrell Florence (“Florence”) appeals from his guilty-
plea conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Relying on our decision in
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert.
denied, 536 U.S. 907 (2002), that the Second Amendment affords
individuals a protected right to bear arms, Florence argues that 18

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U.S.C. § 922(g)(1) is not narrowly tailored in light of the
interplay of the Second Amendment and the regulation of interstate
commerce under the Commerce Clause, is overly broad in its reach
given the legislative history of its intent, and unevenly burdens
a fundamental right in violation of equal protection by relying on
inconsistent state law definitions.
Because Florence did not make the above arguments in the
district court either at rearraignment or at sentencing, our review
is for plain error. See United States v. Munoz, 150 F.3d 401, 419
(5th Cir. 1998); United States v. Krout, 66 F.3d 1420, 1434 (5th
Cir. 1995). We specifically recognized in Emerson that “it is
clear that felons, infants, and those of unsound mind may be
prohibited from possessing firearms.” Emerson, 270 F.3d at 261
(emphasis added). In light of this recognition, we conclude that
Florence has failed to demonstrate plain error. See United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).
Relying on the Supreme Court’s decisions in Jones v.
United States, 529 U.S. 848 (2000), United States v. Morrison, 529
U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995),
Florence also argues that 18 U.S.C. § 922(g)(1) is an
unconstitutional exercise of Congress’s Commerce Clause power
because the regulated activity does not substantially affect
interstate commerce. Alternatively, he argues that the factual
basis for his plea was insufficient because the evidence

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established only that the firearm had traveled across state lines
at some unspecified point in the past.
Florence raises his arguments solely to preserve them for
possible Supreme Court review. As he acknowledges, his arguments
are foreclosed by existing Fifth Circuit precedent. See United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.
denied, 534 U.S. 1150 (2002).
AFFIRMED.

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