United States of America v. Derek Jerome Moore

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEREK JEROME MOORE,
Defendant - Appellant.
No. 20-1407
(D.C. No. 1:19-CR-00218-PAB-1)
(D. Colo.)
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ORDER AND JUDGMENT*
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Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
On appeal, Derek Moore contests the validity of his guilty plea to violating
18 U.S.C. § 922(g)(1). Because his arguments directly conflict with established
precedent, we affirm.
BACKGROUND
While Moore was detained at Denver Detention Center in March 2019 for
driving under the influence, he hid a firearm in his pants and later stashed that
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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firearm in the toilet of his holding cell. The firearm, recovered by cleaning personnel
after Moore was released on bond, was a Beretta 9mm semiautomatic pistol loaded
with seven rounds of ammunition—including one round in the chamber.
Based on Moore’s criminal history, he was charged with knowingly possessing
a firearm as a previously convicted felon in violation of § 922(g)(1). With a total
offense level of 12 and a criminal history category of V, the recommended
Guidelines range for his sentence was between 27 and 33 months in prison. The
sentencing judge imposed a 27-month sentence. Moore appealed.
Moore now challenges his guilty plea. Recognizing that current precedent
forecloses his arguments, he asserts his claims for preservation purposes only, in the
event that pending litigation elsewhere changes the law. Reviewing under 28 U.S.C.
§ 1291, we affirm.
DISCUSSION
On appeal, Moore contests the validity of his guilty plea on two grounds:
(1) that Congress exceeded its Commerce Clause authority by banning felons from
possessing firearms under § 922(g)(1); and (2) that by its terms, § 922(g)(1) applies
only when the defendant’s own possession of the firearm affected commerce at the
time that the defendant possessed it. Because Moore failed to raise these claims
below, we review for plain error. United States v. Dazey, 403 F.3d 1147, 1174 (10th
Cir. 2005) (citations omitted).
To his first point, Moore contends that § 922(g)(1) creates a “minimal nexus
with interstate commerce” because it is construed to require “proof that the firearm in
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question moved across state lines—even if it did so before the person became a felon
or possessed the firearm.” Appellant’s Br. at 4 (citations omitted). That is, he argues,
the nexus is “too attenuated” to justify Congress’s use of the Commerce Clause
power in enacting § 922(g)(1). Id. (citation omitted).
But as Moore concedes, this claim is foreclosed by United States v. Bolton,
68 F.3d 396, 400 (10th Cir. 1995). In Bolton, we recognized that though the Supreme
Court has previously struck down other subsections of § 922, which contain “no
jurisdictional element [to] ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce,” § 922(g) presents a different
scenario. Id. (quoting United States v. Lopez, 541 U.S. 549, 561 (1995)).
Section 922(g) prohibits a convicted felon from “possess[ing] in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.” Thus
§ 922(g)’s “requirement that the firearm have been, at some time, in interstate
commerce is sufficient to establish its constitutionality under the Commerce Clause.”
Bolton, 68 F.3d at 400 (citations omitted); see also United States v. Griffith, 928 F.3d
855, 865 (10th Cir. 2019) (citing § 922(g)(1) as having “specifically passed
constitutional scrutiny under the Commerce Clause” (citations omitted)). Bolton and
its Tenth Circuit progeny remain binding, so we cannot overturn Moore’s guilty plea
on this basis. See United States v. Lira-Ramirez, 951 F.3d 1258, 1260–61 (10th Cir.
2020) (“We must generally follow our precedents absent en banc consideration.”
(citation omitted)).
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To Moore’s second point, he argues that “[t]he mere fact that a firearm was
previously shipped or transported in interstate or foreign commerce is not enough to
establish that the defendant’s possession was ‘in or affecting commerce,’ as required
by § 922(g)(1).” Appellant’s Opening Br. at 5. Relying on the statutory language, he
contends that “the offense of possessing a firearm in violation of § 922(g)(1) requires
proof that the defendant’s own possession of the firearm affected commerce at the
time that he possessed it.” Id. at 6.
But Moore recognizes that this claim is also barred under current precedent.
“The Supreme Court has affirmed . . . that: ‘[T]he interstate commerce nexus
requirement of the possession offense [is] satisfied by proof that the firearm
[defendant had] possessed had previously traveled in interstate commerce.’” United
States v. Hoyle, 697 F.3d 1158, 1165 (10th Cir. 2012) (second alteration in original)
(quoting Scarborough v. United States, 431 U.S. 563, 566 (1977)). Again, precedent
binds us on this issue so we refuse to overturn Moore’s conviction on this basis.
CONCLUSION
For the foregoing reasons, we affirm.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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