                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 11-4265
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                               MICHAEL WAYNE COOK,
                                             Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 10-cr-00334-001)
                   District Judge: Honorable Sylvia H. Rambo
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 11, 2012
                                    ____________

                Before: RENDELL, GARTH and BARRY, Circuit Judges

                              (Opinion Filed: July 17, 2012)
                                     ____________

                                        OPINION
                                      ____________

BARRY, Circuit Judge

       Appellant Michael Cook (“Cook”) appeals his judgment of conviction following a

jury trial for possession of body armor by a violent felon in violation of 18 U.S.C. §

931(a). We will affirm.
                                               I.

       On March 18, 2007, a confidential informant, together with federal agents,

observed Cook purchasing a ballistic vest at a gun show in Harrisburg, Pennsylvania.

The evidence at trial established that, prior to the purchase, the ballistic vest had travelled

in interstate commerce, because the vendor who sold the vest to Cook had obtained it just

one week before at a gun show in Maryland. After the purchase, Cook kept the ballistic

vest at his home for a short period of time before reselling it.

       On November 17, 2010, Cook was charged in a one-count indictment with

possession of body armor by a violent felon in violation of 18 U.S.C. § 931. Cook moved

to dismiss the indictment, arguing that § 931 is unconstitutional because it exceeds

Congress‟s power under the Commerce Clause. The District Court denied the motion and

the case proceeded to trial. Following trial, the jury found Cook guilty and the District

Court sentenced him to a term of imprisonment of six months. Cook timely appealed,

arguing only that the District Court erred in finding § 931 constitutional and denying his

motion to dismiss the indictment.

                                              II.

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

We have appellate jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over a

constitutional challenge to a criminal statute. United States v. Pendleton, 658 F.3d 299,

305 (3d Cir. 2011).


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                                              III.

          Cook “concede[s] that his Commerce Clause argument is foreclosed in this Court,”

and he raises the argument solely for the purpose of preserving the issue for further

review. (Appellant‟s Br. at 6-7.) We agree with Cook that his constitutional argument is

foreclosed by binding precedent of both this Court and the Supreme Court of the United

States.

                                              A.

          Section 931 makes it unlawful for any person previously convicted of a felony

crime of violence “to purchase, own, or possess body armor.” 18 U.S.C. § 931(a). “Body

armor” is defined to mean “any product sold or offered for sale, in interstate or foreign

commerce, as personal protective body covering intended to protect against gunfire.” 18

U.S.C. § 921(a)(35) (emphasis supplied). The question in this case is whether the

requirement that the body armor be sold in interstate commerce is sufficient to bring the

statute within the scope of the federal commerce power. Neither this Court nor the

Supreme Court has directly addressed this question as it pertains to the body armor

statute. Courts have, however, considered the question in the closely analogous context

of the statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g).

          Section 922(g) makes it a crime for a felon “to possess in or affecting commerce,

any firearm or ammunition; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.” In Scarborough v. United


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States, the Supreme Court interpreted the predecessor statute to § 922(g), and held that

proof that a “possessed firearm previously traveled in interstate commerce is sufficient to

satisfy the statutorily required nexus between the possession of a firearm by a convicted

felon and commerce.” 431 U.S. 563, 564 (1977).

       Relying in part on Scarborough, we have consistently held that § 922(g)‟s

jurisdictional hook is sufficient to bring § 922(g) within the ambit of Congress‟s

commerce powers. We have thus rejected constitutional challenges to § 922(g)

essentially identical to the challenge raised here against § 931. See United States v.

Singletary, 268 F.3d 196, 205 (3d Cir. 2001) (rejecting a Commerce Clause challenge to §

922(g) and concluding that “the proof in this case that the gun had traveled in interstate

commerce, at some time in the past, was sufficient to satisfy the interstate commerce

element”); United States v. Gateward, 84 F.3d 670, 671 (3d Cir. 1996) (“[T]he

jurisdictional element „in or affecting commerce‟ keeps the felon firearm law well inside

the constitutional fringes of the Commerce Clause.”); United States v. Leuschen, 395 F.3d

155, 161 (3d Cir. 2005) (stating that we have held that the jurisdictional element of §

922(g) “places it within the ambit of Congress‟ Commerce Clause powers” and noting

that “[t]his Court has previously declined the opportunity for en banc review of facial

challenges to the constitutionality of § 922(g)(1)”).

                                             B.

       Cook agrees that “[b]ecause no principled argument can distinguish the


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jurisdictional element in 18 U.S.C. § 931 from the jurisdictional element in 18 U.S.C. §

922(g)(1), Singletary controls here.” (Appellant‟s Br. at 7). Indeed, our two sister

circuits that have considered a Commerce Clause challenge to the body armor statute

have both rejected such a challenge, concluding that § 931 is constitutionally

indistinguishable from § 922(g). United States v. Patton, 451 F.3d 615, 635 (10th Cir.

2006) (“The prohibition on possessing body armor cannot be distinguished from the

prohibitions on possessing firearms that we have upheld.”); United States v. Alderman,

565 F.3d 641, 648 (9th Cir. 2009) (upholding § 931 because “a nearly identical

jurisdictional hook has been blessed by the Supreme Court.”).

       Because Singletary is controlling, the requirement that the body armor be sold in

interstate commerce keeps the statute within the bounds of the Commerce Clause.

Likewise, in Cook‟s case, the evidence that the ballistic vest travelled in interstate

commerce before he purchased it is sufficient to support his conviction. The District

Court, therefore, did not err in refusing to dismiss the indictment.

                                             IV.

       For the foregoing reasons, we will affirm Cook‟s judgment of conviction.




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