                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-5156


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANA ALEXANDER KLINE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:11-cr-00275-AJT-1)


Submitted:   August 16, 2012             Decided:   September 12, 2012


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Robert J. Heberle, Scott B.
Nussbum, Special Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               A jury convicted Dana Alexander Kline on one count of

possession of a firearm by a convicted felon, in violation of 18

U.S.C.    §    922(g)(1)         (2006).           He    was    sentenced            to    twenty-six

months’        imprisonment.                  On        appeal,        Kline          raises           the

constitutional         challenges          he      asserted          unsuccessfully              below,

namely,       that    his    conviction            under       §     922(g)(1)            as    applied

violates the Second Amendment and that § 922(g)(1) violates the

Commerce      Clause     and      Tenth       Amendment.             We    review         de     novo       a

defendant’s       constitutional           challenge            to    a    criminal            statute.

United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012).                                                 We

affirm.

               In Moore, we joined our sister circuits in holding

that “§ 922(g)(1) [is] a constitutionally valid statute.”                                              666

F.3d   at     316-17.        While       we     left      open       the    possibility               of   a

successful      as-applied         challenge,           we     concluded        that       the    Moore

defendant       did   not      fall   within            the    category         of    “law-abiding

responsible” citizens that the Second Amendment protects.                                              Id.

(citing       District      of    Columbia         v.     Heller,         554    U.S.          570,    635

(2008)).       We further held that the potential for being robbed in

a bad neighborhood was “far too vague and unsubstantiated to

remove    his    case    from      the     typical        felon       in    possession           case.”

Moore, 666 F.3d at 320.



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            Under      Moore,         in      order    for        Kline     to     rebut        the

presumption of lawfulness regarding § 922(g)(1) as applied to

him, he “must show that his factual circumstances remove his

challenge from the realm of ordinary challenges.”                                 Id. at 319.

We reaffirmed this standard in our more recent decision, United

States v. Smoot, ___ F.3d ___, 2012 WL 3264387 (4th Cir. Aug.

13, 2012), in which we rejected yet another as-applied challenge

to § 922(g)(1).            Referencing Moore, we found Smoot’s criminal

history     “remarkably       egregious,”             observing        that       Smoot    could

hardly    be     considered         a      “law-abiding        responsible             citizen.”

Smoot, ___ F.3d at ___, 2012 WL 3264387 at *4.

            We      acknowledge         Kline’s       criminal      history        is     not   as

egregious      as    those    of        the    defendants         in    Moore       or    Smoot.

However, Kline’s criminal record includes a 2008 Virginia state

felony    conviction       for   eluding        a     law    enforcement          officer,       in

violation      of    Va.     Code       § 46.2-817,         which      resulted         from    an

incident in which Kline led police on a high-speed car chase

over a distance of several miles before fleeing on foot and

ultimately     being       apprehended         by   officers        using     a    canine       and

taser.    We conclude Kline’s prior conviction for eluding a law

enforcement         officer      is        sufficient        to     find         the      statute

constitutional as applied.

            Kline urges us to consider that there is no reason to

believe he intended to do anything but take home the firearm he

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purchased from an undercover agent (resulting in the instant

offense) and use it for self-protection, thereby removing him

from “the realm of ordinary challenges.”                          We find this assertion

“far too vague and unsubstantiated to remove his case from the

typical felon in possession case.”                           Moore, 666 F.3d at 320.

Thus,        Kline’s         Second       Amendment        as-applied        challenge       to

§ 922(g)(1) fails.

               Kline’s        second       argument       that    his   conviction      under

§ 922(g) is unconstitutional because it violates the Commerce

Clause and the Tenth Amendment is also unavailing.                              Kline relies

on United States v. Lopez, 514 U.S. 549 (1995), in which the

Supreme Court held that Congress exceeded its Commerce Clause

authority by enacting a federal statute prohibiting possession

of   a   firearm        in    a    school     zone.        However,     as     noted   by   the

district        court,       this        court    has     previously       considered       and

rejected a challenge to the constitutionality of § 922(g)(1)

based on Lopez.              In United States v. Wells, 98 F.3d 808, 810–11

(4th     Cir.      1996),         this    court       determined    that     “[u]nlike      the

statute       at    issue     in     Lopez,       § 922(g)       expressly     requires     the

Government to prove the firearm was shipped or transported in

interstate or foreign commerce; was possessed in or affected

commerce;          or   was        received       after    having       been     shipped    or

transported in interstate or foreign commerce.”                              Wells, 98 F.3d

at     811    (internal           quotation       marks    omitted).           Thus,   “[t]he

                                                  4
existence       of        this       jurisdictional         element,        requiring        the

Government to show that a nexus exists between the firearm and

interstate      commerce         to    obtain        a   conviction       under    §    922(g),

distinguishes Lopez and satisfies the minimal nexus required for

the Commerce Clause.”                 Id.; see also United States v. Williams,

445 F.3d 724, 740 (4th Cir. 2006); United States v. McQueen, 445

F.3d 757, 759 (4th Cir. 2006); United States v. Gallimore, 247

F.3d 134, 136 (4th Cir. 2001).

               In    this       regard,     Kline        also     raises     an    as-applied

challenge to his § 922(g)(1) conviction, arguing all matters in

question      took    place       in    Virginia.          This    argument       is    without

merit.     At trial, the Government presented evidence that the gun

Kline purchased from the ATF agent was manufactured in Austria

and   imported       into       the    United    States     by     a   Glock      facility    in

Smyrna, Georgia.

               In a broader argument, Kline also asserts that Heller

alters the analysis related to the scope of the Commerce Clause

by    strengthening            the     individual        interest      in      possessing     a

firearm.       As noted by the Government, whether Congress has power

to    enact    such       a    prohibition       under     the     Commerce       Clause     and

whether       such    a       prohibition       would     run     afoul     of    the   Second

Amendment are separate and distinct questions.                              See also United

States v. Rene E., 583 F.3d 8, 18 (1st Cir. 2009) (stating that

the Supreme Court’s decision in Heller did not have any effect

                                                 5
on the analysis undertaken to evaluate the extent of Congress’

power    under       the    Commerce    Clause).        Last,     we    reject    Kline’s

challenge       to    the    constitutionality       of    §    922(g)(1)       on   Tenth

Amendment grounds.            See United States v. Bostic, 168 F.3d 718

(4th     Cir.        1999)     (determining        that     §     922(g)(8)          is     a

constitutional         exercise      of   Congress’        Commerce      Clause      power

supplementing complementary state legislation).

            Accordingly,           we     affirm        Kline’s        conviction         and

sentence.       We dispense with oral argument because the facts and

legal    contentions         are   adequately      presented      in     the   materials

before    the    court       and   argument     would     not   aid     the    decisional

process.

                                                                                 AFFIRMED




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