     Case: 13-10743      Document: 00512728737         Page: 1    Date Filed: 08/11/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit


                                      No. 13-10743                                   FILED
                                                                               August 11, 2014
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                 Plaintiff - Appellee
v.

JACKIE DON BURKE,

                                                 Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-281-1


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jackie Don Burke (“Burke”) appeals the district court’s entry of final
judgment of sentence and conviction. We AFFIRM.
       Burke was charged in a one-count indictment with engaging in the
business of firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A)
& 924(a)(1)(D). A jury found Burke guilty at trial, and the district court
sentenced Burke and entered final judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 13-10743
       Burke appeals his conviction on several grounds. First, he asserts that
his conviction should be vacated because the district court lacked subject
matter jurisdiction. We review this issue de novo and conclude that the district
court had jurisdiction pursuant to 18 U.S.C. § 3231. See United States v. Isgar,
739 F.3d 829, 838 (5th Cir. 2014). 1
       Second, Burke maintains that his conviction should be vacated because
§ 922(a)(1)(A) exceeds Congress’s authority under the Commerce Clause
because the first section of the statute lacks an interstate commerce nexus.
Under the rule of orderliness, we are bound by our prior holding in United
States v. King, 532 F.2d 505, 510 (5th Cir. 1976), in which we rejected this
precise argument with respect to this precise statute. 2 See United States v.
Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013) (holding that “only an
intervening change in the law (such as by a Supreme Court case) permits a
subsequent panel to decline to follow a prior Fifth Circuit precedent,” and that
“[s]uch an intervening change in the law must be unequivocal, not a mere ‘hint’
of how the Court might rule in the future.”), cert. denied, 134 S. Ct. 1570 (2014).
Burke argues that a series of recent cases from the Supreme Court 3 overrules
our holding in King. However, none of these cases unequivocally overrule King


       1 Although Burke argues that § 922(a)(1) exceeds Congress’s authority under the
Commerce Clause, such a constitutional challenge does not “affect[ the district] court’s
subject matter jurisdiction.” United States v. Sealed Appellant, 526 F.3d 241, 243 & n.4 (5th
Cir. 2008) (citation omitted); see also Isgar, 739 F.3d at 838.

       2 Other circuits have come to the same conclusion on this question. See United States
v. Ibarra, 472 F. App’x 819, 819 (9th Cir. 2012) (unpublished); United States v. Hornbeck, 489
F.2d 1325, 1326 (7th Cir. 1973); Mandina v. United States, 472 F.2d 1110, 1113–14 (8th Cir.
1973). The Supreme Court, in analyzing a separate subsection of § 922, also rejected the
argument that an interstate commerce nexus was required. See Huddleston v. United States,
415 U.S. 814, 833 (1974).

       3Specifically, Burke cites the following cases: National Federation of Independent
Business v. Sebelius, 132 S. Ct. 2566 (2012); United States v. Lopez, 514 U.S. 549 (1995); and
United States v. Morrison, 529 U.S. 598 (2000).
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                                      No. 13-10743
or even address § 922(a)(1)(A). 4         Accordingly, we are bound by King and
conclude that this issue is foreclosed. 5
       Third, Burke contends that his conviction should be vacated because the
Government did not introduce sufficient evidence to establish a nexus between
Burke’s activity and interstate commerce under § 922(a)(1)(A). However, such
a nexus is not a required element of § 922(a)(1)(A) under King. See 532 F.2d
at 510. 6
       Finally, Burke asserts that his conviction should be vacated because
§ 922(a)(1)(A) is unconstitutionally vague. We review this issue de novo. See
United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999). Section 922(a)(1)(A)
prohibits, among other things, any person, except a licensed dealer, from
engaging in the business of dealing in firearms.                  Burke contends that
§ 922(a)(1)(A) is unconstitutionally vague because it does not provide clear
notice of what conduct constitutes “engaging in the business of dealing in
firearms.” At trial, the Government provided substantial evidence that Burke
was engaged in the business of dealing in firearms, as those terms are defined




       4 National Federation involved a challenge to the Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). 132 S. Ct. at 2577. Lopez involved a
challenge to the validity of the Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, 104
Stat. 4844 (1990). 514 U.S. at 551. Morrison involved a challenge to the constitutionality of
the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994). 529
U.S. at 605.

       5 We note that while Burke seeks de novo review on this issue, the Government
maintains that plain error review should apply because Burke did not preserve this issue for
our review. Even under the least deferential standard of review, we affirm because Burke’s
argument is foreclosed by our prior precedent.

       6 The parties again dispute whether this issue should be reviewed de novo or for plain
error, given Burke’s failure to articulate before the district court the Commerce Clause
argument that he now advocates on appeal. Here again, the outcome does not turn on the
standard of review, so we need not decide which standard applies.

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                                      No. 13-10743
under the statute. 7      See 18 U.S.C. §§ 921(a), 922(a)(1)(A).            Burke cannot
challenge the constitutionality of § 922(a)(1)(A) for vagueness, because his
conduct was unquestionably prohibited by the statute. See Parker v. Levy, 417
U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.”); Broadrick v. Oklahoma, 413 U.S.
601, 608 (1973) (same); see also United States v. Strunk, 551 F. App’x 245, 246
(5th Cir.) (unpublished) 8 (concluding that a defendant who, “without being
licensed, sold firearms entrusted to him by others for the purpose of sale,” could
not attack § 922(a)(1)(A) on the basis that it is vague, because “[s]uch conduct
is unquestionably prohibited by the legislation’s text”), cert. denied, 134 S. Ct.
1912 (2014); United States v. Shipley, 546 F. App’x 450, 456 (5th Cir. 2013)
(unpublished) (rejecting a vagueness challenge to § 922(a)(1)(A) by a defendant
who made, “over a number of years, numerous repetitive sales in quick
succession, sometimes to repeat customers,” because “such conduct is
unquestionably prohibited by the statutes’ text”), cert. denied, 134 S. Ct. 2842
(2014).
       AFFIRMED.




       7   Specifically, the Government introduced evidence establishing that Burke: (a)
advertised that he dealt in firearms; (b) acquired and sold approximately 135 firearms in the
span of a year; (c) posted multiple sales listings on GunsAmerica.com for firearms valued at
more than $25,000; (d) frequently purchased several firearms of the same model and caliber;
(e) sold firearms for other individuals on a consignment basis; (f) sold a number of firearms
with a total value of approximately $45,000 at a gun show; (g) affixed price tags to most of
the firearms in his “Arms Room,” indicating their availability for sale; and (h) sold many of
the firearms that he purchased within a few months of purchase.

       “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
       8

but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
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