     Case: 09-10124     Document: 00511021979          Page: 1    Date Filed: 02/05/2010




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

                                                  FILED
                                                                          February 5, 2010
                                     No. 09-10124
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

BILLY PETERS,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 7:08-CR-13-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        A jury convicted Billy Peters of being a felon in possession of a firearm.
The district court sentenced him to a term of sixty-three months. On appeal, he
argues that his conviction should be vacated because the Government failed to
prove that he had actual knowledge that the gun and ammunition he possessed
had crossed state lines. We AFFIRM.
        Peters acknowledged that this court has rejected his argument.                    See
United States v. Dancy, 861 F.2d 77 (5th Cir. 1988). He seeks our second look

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10124

at the issue, though, contending that a recent Supreme Court decision changed
the law and effectively overruled Dancy. See Flores-Figueroa v. United States,
129 S. Ct. 1886 (2009). This court has already taken another look, as we will
discuss.
      The felon-in-possession statute forbids a person “who has been convicted
in any court, of a crime punishable by imprisonment for a term exceeding one
year,” as relevant here, “to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C.
§ 922(g). This statute makes no reference to knowledge. Id. However, the
penalty provision provides that a certain sentence shall be imposed if the
offender “knowingly violates,” as relevant here, Section 922(g). Id. § 924(a)(2).
      Peters argues that the word “knowingly” in this statute is analogous to its
use in 18 U.S.C. § 1028A(a)(1), an identity-theft statute. The Supreme Court
held that “knowingly” in that statute applied to each element of the offense that
follows it, giving the Government the burden to prove that a defendant had
knowledge of each element of the offense. Flores-Figueroa, 129 S. Ct. at 1890-91.
      Peters argues that similarly, the Government must prove that he had
knowledge relating to each element of his offense, including that the firearm
affected interstate commerce.
      The Government moved for summary affirmance, arguing that Flores-
Figueroa did not overrule Dancy and thus that the rule in Dancy remains good
law and forecloses Peters’s argument.
      We denied the Government’s motion, and the briefing continued. Since
then, though, we have rejected the argument that Flores-Figueroa overruled
Dancy. See United States v. Rose, 587 F.3d 695, 703 n.6, 705-06 (5th Cir. 2009).
In his reply brief, Peters argues that Rose is not controlling because the relevant
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                                 No. 09-10124

language is dictum. That is not true. The determination that the “knowingly”
requirement in Section 924(a)(2) did not extend to Section 922(g)(1) was an
alternate holding, not dictum, and thus is binding precedent. See United States
v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009).
      Peters also argues that by proving only that the gun he possessed had
crossed state lines, the Government did not meet its burden to prove that the
gun was in or affected interstate commerce. He contends that the Government
must prove a more substantial effect on interstate commerce than mere
movement from one state to another at an undeterminable time in the past,
relying on United States v. Lopez, 514 U.S. 549 (1995). He also argues that this
court’s decisions to the contrary have been undermined by Supreme Court
authority. See United States v. Morrison, 529 U.S. 598 (2000); Jones v. United
States, 529 U.S. 848 (2000). Here too, as Peters concedes, his argument is
foreclosed by this court’s precedent. See United States v. Daugherty, 264 F.3d
513, 518 (5th Cir. 2001).
      Accordingly, the district court’s judgment is AFFIRMED.
