     Case: 12-11233      Document: 00512574656         Page: 1    Date Filed: 03/26/2014




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

                                    No. 12-11233                               FILED
                                  Summary Calendar                        March 26, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID EUGENE THURSBY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:12-CR-7-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       David Eugene Thursby appeals his conviction for being a felon in
possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(e). Relying on National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)
(National Federation), Thursby contends that § 922(g)(1) exceeds Congress’s
power under the Commerce Clause.                   He argues that § 922(g)(1) is
unconstitutional as applied because his factual resume did not state that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-11233     Document: 00512574656     Page: 2   Date Filed: 03/26/2014


                                  No. 12-11233

possession of the firearm was an economic activity and failed to reflect that he
was engaged in the relevant market at the time of the regulated conduct.
Further, he contends that § 922(g)(1) is facially unconstitutional because
National Federation interpreted the Commerce Clause to mandate that
“Congress may regulate only ongoing economic activity,” and his possession of
a firearm purchased many years ago does not qualify.
      In United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), and
decisions following, this court held that § 922(g)(1) was a valid exercise of
Congress’s authority under the Commerce Clause.            See United States v.
Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). National Federation did not
overrule this court’s precedent upholding § 922(g)(1). Alcantar, 733 F.3d at
146. Whether this court’s review is de novo or for plain error, Thursby’s
challenge to the constitutionality of § 922(g)(1) is foreclosed. See Alcantar, 733
F.3d at 146 & n.4.
      AFFIRMED.




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