
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 97-1498                                    UNITED STATES,                                      Appellee,                                          v.                           EDWIN GUNN, a/k/a GREGORY GUNN,                                 a/k/a GREGORY WELLS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               George F.  Gormley, by appointment  of the Court,  with whom               __________________          John D. Colucci  and Gormley  & Colucci, P.C.  were on  brief for          _______________      ________________________          appellant.               Donald  L. Cabell,  Assistant United  States Attorney,  with               _________________          whom Donald  K. Stern, United  States Attorney, was on  brief for               ________________          appellee.                                 ____________________                                  February 10, 1998                                 ____________________                    Per  Curiam.    Defendant-appellant Edwin  J.  Gunn was                    Per  Curiam.                    ___________          indicted for  being a  felon in  possession of  a firearm  and of          ammunition, both in  violation of 18 U.S.C.    922(g)(1), and was          convicted of possessing the firearm.  At sentencing, the district          court found Gunn to be an armed career criminal, as defined in 18          U.S.C.   924(e), and sentenced him to  216 months in prison and a          five-year term of supervised release.   Gunn now appeals both his          conviction and his sentence.  We affirm.                    Gunn first  argues that  his conviction  should be  set          aside   because  the  government  failed  to  establish  that  he          possessed the  firearm "in or  affecting commerce."  18  U.S.C.            922(g).   He  contends that,  under  the test  enunciated by  the          Supreme Court  in United  States v. L pez,  514 U.S.  549 (1995),                            ______________    _____          Congress's exercise of its  Commerce Clause power can only  reach          activities that involve  the use  of the  channels of  interstate          commerce, instrumentalities of interstate commerce, or activities          that substantially affect  interstate commerce.  Noting  that the          only  evidence adduced  at trial as  to the  firearm's connection          with  interstate or  foreign commerce  was that  the firearm  was          manufactured  in Argentina,  Gunn  concludes that  this  evidence          failed  to  establish   that  his  mere  possession  of  the  gun          substantially affected interstate commerce.                    This first  argument fails because the  government does          not  need  to   prove  that  Gunn's   possession  of  a   firearm          substantially affected commerce.   We have repeatedly  held that,          after L pez,  "it remains the  law that where a  federal criminal                _____                                         -2-          statute contains a jurisdictional element requiring proof that an          object  was 'in or affecting' commerce,  the government need only          meet the 'minimal nexus' test enunciated in Scarborough v. United                                                      ___________    ______          States, 431 U.S. 563, 577 (1977)."  United States v. Cardoza, 129          ______                              _____________    _______          F.3d 6, 11  (1st Cir. 1997); see also United States v. Smith, 101                                       ________ _____________    _____          F.3d 202, 215 (1st Cir. 1996), cert. denied, ___ U.S. ___, 117 S.                                         ____________          Ct. 1345 (1997); United  States v. Blais, 98  F.3d 647, 649  (1st                           ______________    _____          Cir. 1996), cert. denied, ___  U.S. ___, 117 S. Ct. 1000  (1997);                      ____________          United States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995).          _____________    _____________          The minimal nexus test is  satisfied by evidence that the firearm          was manufactured  in a state  or country  other than  the one  in          which the  firearm was  possessed; it does  not require  that the          defendant  be the person  to have transported  the firearm across          state lines, or  that the defendant be otherwise  involved in the          "in or affecting commerce" aspect  of the case.  Scarborough, 431                                                           ___________          U.S. at 577.   The evidence provided  by the government at  trial          was sufficient to establish the required minimal nexus.                    Gunn  also  claims  that the  district  court  erred in          sentencing him  as an "armed  career criminal," which  is defined          under 18  U.S.C.    924(e)(1) as "a  person who  violates section          922(g) . . . and has three previous convictions . . . for a . . .          serious drug offense,"  because his three prior  drug convictions          did not  qualify as "serious  drug offense[s]."  Under  18 U.S.C.            924(e)(2)(A)(ii),  a "serious drug  offense" is defined  as "an          offense under State  law, involving . . .  possessing with intent          to .  . . distribute,  a controlled substance, .  . . or  which a                                         -3-          maximum term of  imprisonment of ten years or  more is prescribed          by  law."   Even  though  his three  prior  convictions were  for          violations of Mass.  Gen. Laws ch.  94C,   32A,  which carries  a          maximum penalty  of ten years  in state prison, Gunn  argues that          the convictions were not  for "serious drug offenses" because  he          was prosecuted for  those offenses in  certain lower courts  that          lacked  competence  to  sentence  him  to  the  ten-year  maximum          sentence.                    We  reject this argument and affirm Gunn's sentence for                                                 affirm          the  reasons  expressed  in the  district  court's  memorandum of          decision.  See  United States v. Gunn, 962 F. Supp. 214 (D. Mass.                     ___  _____________    ____          1997).                                         -4-
