United States of America v. Deandre Mitchell

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4122
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
D EANDRE M ITCHELL ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 00 CR 56—William C. Lee, Chief Judge.
____________
No. 02-1190
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J ERRY L. P EETE ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 15—Rudolph T. Randa, Judge.
____________
A RGUED M AY 20, 2002—D ECIDED A UGUST 5, 2002
____________

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2 Nos. 01-4122 & 02-1190
1 On appeal, Mitchell framed his argument partly in terms of
whether the district court had subject matter jurisdiction to pro-
ceed with a section 922(g) charge when the statute is unconstitu-
tional. We have held that the “jurisdictional nexus” we describe
in Commerce Clause cases is really an element of the crime and
not jurisdictional in the sense that it affects a court’s subject
matter jurisdiction. United States v. Martin, 147 F.3d 529, 532
(7th Cir. 1997). Mitchell did raise an adequate objection to the
statute on constitutional grounds at the close of the government’s
case, and so we proceed to the merits.
Before EASTERBROOK , ROVNER and E VANS , Circuit Judges.
R OVNER , Circuit Judge. We have consolidated these
two cases solely for the purpose of issuing our opinion.
Deandre Mitchell and Jerry Peete both challenge the con-
stitutionality of 18 U.S.C. § 922(g), commonly known as
the “felon in possession” statute. Mitchell and Peete con-
tend that Congress exceeded its powers under the Com-
merce Clause when it criminalized possession by felons of
firearms that traveled in interstate commerce. We affirm
their respective convictions.
I.
Both Peete and Mitchell were charged under 18 U.S.C.
§ 922(g)(1) with the crime of being a felon in possession of
a firearm. Mitchell was arrested in Indiana in possession of
a firearm manufactured in California. Mitchell went to tri-
al and, at the close of the government’s case, he moved
for a judgment of acquittal on the grounds that the govern-
ment failed to prove the jurisdictional nexus of interstate
commerce. 1 The district court denied the motion and the
jury returned a verdict of guilty. Mitchell was sentenced
to 180 months of imprisonment and five years of supervised
release.
Peete was arrested in Wisconsin in possession of a gun
that had been manufactured in another state. The gun

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Nos. 01-4122 & 02-1190 3
thus had traveled in interstate commerce at some point
in time. Peete faced additional charges that are not part
of his appeal, and he moved to dismiss the felon-in-posses-
sion count on the ground that Congress exceeded its pow-
er under the Commerce Clause in passing this legisla-
tion. Because this Court had already rejected identical
claims in a number of cases, a magistrate judge recom-
mended denying his motion. Peete ultimately pled guilty
to all charges and was sentenced to 188 months of incar-
ceration and five years of supervised release on the gun
count.
II.
Mitchell and Peete concede that they had been convicted
of crimes punishable by imprisonment for a term exceeding
one year at the time of their arrests. Section 922(g)(1)
provides:
It shall be unlawful for any person who has been con-
victed in any court of a crime punishable by imprison-
ment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or pos-
sess in or affecting commerce, any firearm or ammuni-
tion; or to receive any firearm or ammunition which
has been shipped or transported in interstate or for-
eign commerce.
18 U.S.C. § 922(g)(1). Both defendants contend that Con-
gress exceeded its authority under the Commerce Clause
by criminalizing the possession of a gun that happened
to travel in interstate commerce at some time in the past.
Each relies primarily on United States v. Lopez, 514
U.S. 549 (1995). In Lopez, the Supreme Court struck down
the Gun-Free School Zones Act of 1990, which made it
a federal offense “for any individual knowingly to pos-
sess a firearm at a place that the individual knows, or has

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4 Nos. 01-4122 & 02-1190
reasonable cause to believe, is a school zone.” 18 U.S.C.
§ 922(q)(1)(A); Lopez, 514 U.S. at 551. The Court held
that the Act exceeds the authority of Congress “[t]o reg-
ulate Commerce . . . among the several States. . . .” U.S.
Const., Art. I, § 8, cl. 3. In part, the Court noted that sec-
tion 922(q) contained no “jurisdictional element which
would ensure, through case-by-case inquiry, that the fire-
arm possession in question affects interstate commerce.”
Lopez, 514 U.S. at 561. Mitchell and Peete are not the first
defendants to argue that section 922(g)(1) suffers from
the same infirmities as section 922(q)(1). We have rejected
this argument numerous times since Lopez, noting that
section 922(g) requires a showing that the possession be
“in or affecting interstate commerce,” a link that was lack-
ing in section 922(q). See United States v. Lewis, 100 F.3d
49, 51 (7th Cir. 1996) (noting that section 922(g) is distin-
guishable from section 922(q) because it contains an ex-
plicit requirement that a nexus to interstate commerce
be established); United States v. Williams, 128 F.3d 1128,
1133 (7th Cir. 1997) (same); United States v. Lee, 72 F.3d
55, 58 (7th Cir. 1995); United States v. Bell, 70 F.3d 495,
498 (7th Cir. 1995) (same).
Undeterred, Mitchell and Peete note that the Supreme
Court subsequently applied Lopez to narrow a criminal
statute and invalidate another law on Commerce Clause
grounds. See Jones v. United States, 529 U.S. 848 (2000);
United States v. Morrison, 529 U.S. 598 (2000). In Jones,
the Court considered 18 U.S.C. § 844(i), which makes it
a federal crime to damage or destroy “by means of fire or
an explosive, any . . . property used in interstate or for-
eign commerce or in any activity affecting interstate or
foreign commerce.” Jones, 529 U.S. at 850. Jones was
convicted of violating section 844(i) by setting fire to a
house in Indiana. The government argued that the Indi-
ana house was secured by a mortgage from an Oklahoma
lender, insured by a Wisconsin insurer, and received gas

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Nos. 01-4122 & 02-1190 5
from a supplier outside of Indiana. The Court reasoned that
a private residence is not “used” in the activities of receiv-
ing natural gas, a mortgage, or an insurance policy in the
common understanding of the word “use.” Nor was the
home used in any trade or business; rather it was used
for the everyday living of the occupants. To accept the
government’s argument would mean that almost any
home in the country was covered by the law, and the word
“used” would be rendered meaningless. 529 U.S. at 856. The
Court noted that Lopez reinforced this conclusion because
arson was traditionally viewed as local criminal conduct.
529 U.S. at 851, 858. The Court therefore held that “an
owner-occupied residence not used for any commercial pur-
pose does not qualify as property ‘used in’ commerce or
commerce-affecting activity; arson of such a dwelling, there-
fore, is not subject to federal prosecution under § 844(i).”
529 U.S. at 850-51.
In Morrison, the Court considered whether the Commerce
Clause provided Congress with the authority to enact the
Violence Against Women Act (“VAWA”). The VAWA pro-
vided, in part, a federal civil remedy for the victims
of gender-motivated violence. Morrison, 529 U.S. at 601-
02. Citing Lopez, the Court struck down this provision
because gender-motivated violence was not an activity
that substantially affects interstate commerce. 529 U.S.
at 613 (“Gender-motivated crimes of violence are not, in
any sense of the phrase, economic activity.”). The Court
noted that, like the statute at issue in Lopez, the VAWA
contained no “jurisdictional element establishing that
the federal cause of action is in pursuance of Congress’
power to regulate interstate commerce.” 529 U.S. at 613.
Moreover, by its terms the law had nothing to do with
interstate commerce, and neither the statute nor its
legislative history adequately supported findings regard-
ing the effects on interstate commerce caused by violence
against women. 529 U.S. at 610-12. Therefore, Congress ex-

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6 Nos. 01-4122 & 02-1190
ceeded its powers under the Commerce Clause in enacting
the civil remedy provision of the VAWA.
Mitchell and Peete contend that, under the reasoning
of Jones and Morrison, section 922(g) cannot stand. Once
again, Mitchell and Peete are not the first defendants to
raise this argument, and we have rejected it before. See
United States v. Wesela, 223 F.3d 656 (7th Cir. 2000), cert.
denied, 531 U.S. 1174 (2001) (holding that nothing in
Jones or Morrison casts doubt on the validity of sec-
tion 922(g), which specifically requires a link to inter-
state commerce). As we have previously stated, we believe
the Supreme Court resolved the issue of the constitutional-
ity of the felon-in-possession statute in United States v.
Bass, 404 U.S. 336 (1971). See Lewis, 100 F.3d at 52. Un-
til the Supreme Court overrules Bass, we will continue
to adhere to our view that section 922(g) was a valid ex-
ercise of Congressional power under the Commerce Clause.
We therefore affirm the judgments against Mitchell and
Peete for their violations of section 922(g).
Finally, Peete raises a challenge to his sentence. Under
18 U.S.C. § 924(a)(2), a felon convicted of possession of
a firearm under section 922(g)(1) is subject to a maxi-
mum prison term of ten years with a maximum of three
years of supervised release. However, a felon charged un-
der section 922(g)(1) who has three prior convictions for
violent felonies or serious drug crimes is subject to not less
than fifteen years’ imprisonment and up to five years of
supervised release under 18 U.S.C. § 924(e)(1). Peete’s
indictment charged him with a violation of section 922(g)(1)
but did not allege that he had been convicted of three pri-
or violent felonies or serious drug crimes except to cite
section 924(e)(1) in a pro forma manner. Peete argues that
under Jones v. United States, 526 U.S. 227, 243 n.6 (1999)
and Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), the
indictment was insufficient to authorize imposition of a
sentence greater than ten years because it did not allege

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Nos. 01-4122 & 02-1190 7
facts that increased the maximum penalty for the crime.
Peete concedes that this Court has held there is no require-
ment to plead prior convictions in an indictment even
when those convictions increase the defendant’s sentence.
See Dahler v. United States, 259 F.3d 763, 765-66 (7th Cir.
2001); United States v. Skidmore, 254 F.3d 635, 642 (7th
Cir. 2001). Accordingly, we reject Peete’s claim.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-5-02

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