United States of America v. Lester Lemons

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4277
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
L ESTER L EMONS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CR-41—Lynn Adelman, Judge.
____________
A RGUED A PRIL 10, 2002—D ECIDED S EPTEMBER 12, 2002
____________
Before R IPPLE , M ANION , and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. Responding to a two-car traffic
accident in West Allis, Wisconsin (a suburb of Milwaukee)
in the early morning hours of February 24, 2001, police
were told that Lester Lemons, a passenger in one of the
involved automobiles, had flashed a gun in the immedi-
ate aftermath of the accident. Upon questioning, Lemons
denied possessing a gun but consented to a pat-down
of his person. Pursuant to that frisk, police discovered a
sweat sock in his pocket containing twelve bullets. Sepa-
rately, another officer observed a 9 mm bullet on the
rear seat of the vehicle in which Lemons had been a
passenger. A further search of the vehicle produced a Sig
Sauer 9 mm P228 pistol wrapped in a red knit cap and

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2 No. 01-4277
stuffed between the driver and passenger seats of the
vehicle.
A grand jury subsequently indicted Lemons, who had
a prior felony conviction (battery to a law enforcement
officer), for two violations of the felon-in-possession stat-
ute, 18 U.S.C. § 922(g)(1): possession of the gun (Count
One) and the ammunition (Count Two), both of which
had previously traveled in interstate commerce. R. 1. Lem-
ons moved to dismiss the indictment (R. 17, 19), arguing
that application of the felon-in-possession statute to his
intrastate possession of a weapon and ammunition that,
at some previous time, had crossed state lines was be-
yond the limited authority bestowed on Congress by the
Commerce Clause of the Constitution. U.S. Const. art. I,
§ 8, cl. 3. Magistrate Judge Goodstein and Judge Adelman
rejected Lemons’ argument. R. 38, 52. Ultimately, Lem-
ons entered into a Rule 11(a)(2) plea agreement pursuant
to which he conditionally pleaded guilty to Count One
while reserving the right to challenge the validity of
his conviction under the Commerce Clause. R. 77. The dis-
trict court sentenced him to a term of seventy-seven
months in prison. R. 71.
The Sig Sauer pistol discovered in Lemons’ possession
was not manufactured in Wisconsin. Consequently, there
is no dispute that, at some previous point in time, the pis-
tol crossed state lines. However, the record does not re-
veal when that occurred. In a thorough and well-written
set of briefs, Lemons contends that the Sig Sauer’s cross-
ing of state lines at some unknown time prior to his pure-
ly local possession of the gun on the occasion of his arrest
is not enough of a nexus to interstate commerce to bring
it within the Commerce Clause authority of Congress.
As Lemons acknowledges, in United States v. Bass, 404
U.S. 336, 92 S. Ct. 515 (1971), the Supreme Court indicated
that a firearm’s prior movement in interstate commerce

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No. 01-4277 3
would suffice to demonstrate that an individual had
received the gun in or affecting commerce for purposes
of the statutory forerunner to section 922(g)(1). That
statute, 18 U.S.C. § 1202(a)(1), imposed a criminal penalty
on any felon who “receives, possesses, or transports” a
firearm “in commerce or affecting commerce.” The Court,
rejecting the government’s contention that a link to in-
terstate commerce need only be proven with respect to
the transport prong of the statute, construed it to require
proof of a nexus to interstate commerce irrespective of
whether the defendant had received, possessed, or trans-
ported the weapon. Id. at 347-50, 92 S. Ct. at 522-24.
It came to that conclusion, in significant part, so as to
avoid the dramatic intrusion upon state criminal author-
ity that would have been presented if no such nexus re-
quirement were read into the statute. See id. at 349-50, 92
S. Ct. at 523-24. With respect to the receipt prong of the
statute, the Court was satisfied that if the weapon had pre-
viously traveled in interstate commerce, that prior move-
ment would suffice to meet the nexus to interstate com-
merce that the statute required. Id. at 350-51, 92 S. Ct.
at 524. In that respect, the Court believed that the re-
ceipt prong had a “[s]ignificantly broader” reach than
either of the other two prongs of the statute. Id. at 350,
92 S. Ct. at 524. Implicit in that observation was the notion
that the transport and possession prongs of the statute
might require more of a nexus to interstate commerce
than a prior crossing of state lines.
Subsequently, however, in Scarborough v. United States,
431 U.S. 563, 577, 97 S. Ct. 1963, 1970 (1977), the Court
concluded that Congress intended to impose “no more
than a minimal nexus requirement” on the possession
prong of the statute. Thus, in the Court’s view, proof that
the firearm had at some earlier point in time moved
across state lines would suffice to show that the defen-
dant possessed the gun in or affecting commerce, even if

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4 No. 01-4277
the interstate movement was not contemporaneous with
the defendant’s possession. See id. at 577, 97 S. Ct. at 1970
(“Congress sought to reach possessions broadly, with little
concern for when the nexus with commerce occurred.”). In
short, the Court rejected any notion that the statute
might require proof of a more substantial connection with
interstate commerce vis à vis a felon’s possession of a
firearm than it did with respect to his receipt of the
weapon. Id. at 575 & n.11, 97 S. Ct. at 1969 & n.11.
“Congress was not particularly concerned with the im-
pact on commerce except as a means to insure the con-
stitutionality of [the statute],” the Court observed. Id. at
575 n.11, 97 S. Ct. 1969 n.11.
Lemons correctly points out that in both Bass and
Scarborough, the Supreme Court was principally con-
cerned with construing congressional intent vis à vis the
required nexus; the Court did not explicitly consider
whether the nexus it found the statute to require
would suffice to bring the criminalized activity within
the reach of congressional Commerce Clause authority.
Yet, the constitutional question was not far from the
Court’s mind in either case. As is evident from Bass, the
Court plainly wanted to avoid a construction of the stat-
ute that would work a dramatic alteration of the federal-
state balance in the field of criminal law. 404 U.S. at 349-
50, 92 S. Ct. at 523-24; see also Scarborough, 431 U.S.
at 568, 97 S. Ct. at 1966. At the same time, as the opin-
ion in Scarborough reflects, the Court was aware that
Congress itself was concerned about the constitutionality
of its enactment. Id. at 575 & n.11; 97 S. Ct. at 1969 &
n.11. Therefore, although the precise question before the
Court in both Bass and Scarborough was statutory, one
cannot accurately say that constitutional considerations
played no role in the Court’s analysis. That the Court
viewed prior movement of the firearm across state lines
as an adequate link to interstate commerce for statutory

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No. 01-4277 5
purposes at the least suggests that the Court viewed that
minimal nexus as sufficient to avoid an obvious consti-
tutional problem. See United States v. Lewis, 100 F.3d 49,
52 (7 th Cir. 1996). The Court, after all, has long made it
a practice to avoid construing statutes in such a way as
to make them constitutionally suspect. E.g., United States
ex rel. Attorney General v. Delaware & Hudson Co., 213
U.S. 366, 407-08, 29 S. Ct. 527, 535-36 (1909); see United
States v. Lopez, 514 U.S. 549, 562, 115 S. Ct. 1624, 1631
(1995).
Still, Lemons argues that the Court’s more recent opinion
in Lopez, which struck down the Gun-Free School Zones
Act, 18 U.S.C. § 922(q), requires proof that one’s posses-
sion of a gun is commercial activity which has a substan-
tial impact on interstate commerce before Congress may
criminalize it pursuant to the Commerce Clause. This point
is driven home further, he suggests, by the Court’s opin-
ions in United States v. Morrison, 529 U.S. 598, 120 S. Ct.
1740 (2000), which found that the Violence Against Women
Act, 42 U.S.C. § 13981, exceeded Congress’s Commerce
Clause authority, and Jones v. United States, 529 U.S. 848,
120 S. Ct. 1904 (2000), which construed the federal arson
statute, 18 U.S.C. § 844(i), not to reach owner-occupied
homes that are not used for any commercial purpose.
Yet, in the course of finding the Gun-Free School Zones
Act unconstitutional, Lopez noted, inter alia, that the
statute lacked a jurisdictional element “which would en-
sure, though case-by-case inquiry, that the firearm posses-
sion in question affects interstate commerce.” 514 U.S.
at 561, 115 S. Ct. at 1631. By way of contrast, the Court
cited the forerunner to section 922(g), which Bass had
construed to require proof of just that kind of nexus to
interstate commerce. Id. at 561-62, 115 S. Ct. at 1631.
Because 922(g) itself contains a jurisdictional element, and
because the Supreme Court in Bass and Scarborough
suggested that prior movement of the firearm in interstate

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6 No. 01-4277
commerce would suffice to meet that element, we have, in
the wake of Lopez, repeatedly rejected Commerce Clause
challenges to application of the felon-in-possession statute.
See, e.g., United States v. Mitchell, 299 F.3d 632 (7 th Cir.
2002); United States v. Wesela, 223 F.3d 656, 659-60 (7 th
Cir. 2000), cert. denied, 531 U.S. 1174, 121 S. Ct. 1145
(2001); Lewis, 100 F.3d at 50-53; United States v. Bell, 70
F.3d 495, 497-98 (7 th Cir. 1995).
Lemons argues that Lopez effected far more of a sea
change in the Supreme Court’s Commerce Clause juris-
prudence than we have been willing to acknowledge. With-
in the Lopez framework, he reasons, Congress might be
able to reach intrastate firearms possession when that
possession has a commercial character and also has an
explicit connection with or effect on interstate commerce.
But section 922(g)(1), to the extent it merely requires a
showing that the firearm moved across state lines at one
point in time, is insufficient in Lemons’ view to ensure such
a meaningful nexus to interstate commerce. And the un-
disputed facts in this case, he points out, establish only that
the Sig Sauer pistol he possessed crossed into Wisconsin
after its manufacture at some indeterminate moment in
time—possibly years before it was discovered in his posses-
sion. That showing is insufficient, in Lemons’ view, to
establish a genuine connection with or effect upon inter-
state commerce. See United States v. Kuban, 94 F.3d 971,
977-79 (5 th Cir. 1996) (DeMoss, J., dissenting in part), cert.
denied, 519 U.S. 1070, 117 S. Ct. 716 (1997); United States
v. Chesney, 86 F.3d 564, 574-82 (6 th Cir. 1996) (Batchelder,
J., concurring), cert. denied, 520 U.S. 1282, 117 S. Ct. 2470
(1997); United States v. Coward, 151 F. Supp. 2d 544, 548-
55 (E.D. Pa. 2001), remanded on other grounds, 296
F.3d 176 (3 rd Cir. 2002); see also United States v. Bishop,
66 F.3d 569, 590-603 (3 rd Cir. 1995) (Becker, J., dissenting
in part) (federal carjacking statute), cert. denied, 516 U.S.
1032, 116 S. Ct. 681 (1995), and cert. denied, 516 U.S. 1066,
116 S. Ct. 750 (1996).

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No. 01-4277 7
This court, and for that matter its sister circuits, have
already rejected Lemons’ construction of Lopez and its
progeny vis à vis the felon-in-possession statute. We are
bound by the ample Seventh Circuit precedent on this
point. If, indeed, Lopez’s rationale calls into doubt our
construction and application of section 922(g)(1), it is for
the Supreme Court to so hold.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-12-02

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