                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               MAR 9, 2010
                             No. 09-12117                      JOHN LEY
                         Non-Argument Calendar                   CLERK
                       ________________________

                  D. C. Docket Nos. 09-60432-CV-WPD
                           89-00775 CR-WPD

JOHN BALLESTER,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (March 9, 2010)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
       On March 20, 1992, petitioner having pled guilty to the crime of possession

by a convicted felon of a firearm in an affecting interstate commerce, in violation

of 18 U.S.C. § 922(g)(1), the district court sentenced him to prison for a term of 63

months. On March 31, 1992, he moved the district court to vacate his conviction

and sentence on various grounds. His motion was denied.1

       On March 18, 2009, petitioner, in another attempt to have his conviction and

sentence set aside, petitioned the district court for a writ of error coram nobis. He

claimed that his conviction was invalid because the firearm at issue had not

traveled in interstate commerce; hence, he was “actually innocent” of the § 922(g)

(1) offense. The district court denied relief, refusing to exercise its discretion to

grant the writ because coram nobis is a remedy of last resort—available in

compelling circumstances where necessary to achieve justice. Petitioner now

appeals the ruling, proceeding pro se as he did in the district court.

       Petitioner argues that the firearm at issue was made in Florida and never left

the state. In that the interstate nexus is jurisdictional, he continues, his conviction

is invalid.

       Contrary to petitioner’s view, the interstate nexus is not jurisdictional. The

Supreme Court made this plain in United States v. Lopez.


       1
         Petitioner’s subsequent attempts to obtain relief from his conviction and sentence,
which are not pertinent here, were unsuccessful.

                                                2
      [Section] 922(q) contains no jurisdictional element which would
      ensure, through case-by-case inquiry, that the firearm possession in
      question affects interstate commerce. For example, in United States v.
      Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court
      interpreted former 18 U.S.C. § 1202(a), which made it a crime for a
      felon to “receiv[e], posses[s], or transpor[t] in commerce or affecting
      commerce ... any firearm.” 404 U.S., at 337, 92 S.Ct., at 517. The
      Court interpreted the possession component of § 1202(a) to require an
      additional nexus to interstate commerce both because the statute was
      ambiguous and because “unless Congress conveys its purpose clearly,
      it will not be deemed to have significantly changed the federal-state
      balance.” Id., at 349, 92 S.Ct., at 523. The Bass Court set aside the
      conviction because, although the Government had demonstrated that
      Bass had possessed a firearm, it had failed “to show the requisite
      nexus with interstate commerce.” Id., at 347, 92 S.Ct., at 522. The
      Court thus interpreted the statute to reserve the constitutional question
      whether Congress could regulate, without more, the “mere
      possession” of firearms. See id., at 339, n. 4, 92 S.Ct., at 518, n. 4; see
      also United States v. Five Gambling Devices, 346 U.S. 441, 448, 74
      S.Ct. 190, 194, 98 L.Ed. 179 (1953) (plurality opinion) (“The
      principle is old and deeply imbedded in our jurisprudence that this
      Court will construe a statute in a manner that requires decision of
      serious constitutional questions only if the statutory language leaves
      no reasonable alternative”). Unlike the statute in Bass, § 922(q) has no
      express jurisdictional element which might limit its reach to a discrete
      set of firearm possessions that additionally have an explicit
      connection with or effect on interstate commerce.


514 U.S. 549, 561-62, 115 S.Ct. 1624, 1631, 131 L.Ed. 2d 626 (1995).

      Because the interstate nexus is not jurisdictional, petitioner’s argument is

reduced to the proposition that he should be given coram nobis relief because the

Government failed to prove at his plea hearing that the firearm actually traveled in

interstate commerce. Petitioner’s problem is that, in pleading guilty, he waived

                                           3
the right to challenge the Government’s proof. The district court’s refusal to grant

the writ is, accordingly,

      AFFIRMED.




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