                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                     No. 09-2655
                                    ____________


                           UNITED STATES OF AMERICA

                                           v.

                        MARK BRADFORD YARBROUGH, SR.,
                                        Appellant
                                 ___________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 2-06-cr-00203-001)
                     District Judge: Honorable Gary L. Lancaster
                                     ___________

                        Submitted Under Third Circuit LAR 34.1
                                   October 26, 2011

              Before:    FISHER, VANASKIE and ROTH, Circuit Judges

                              (Filed: November 18, 2011)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

VANASKIE, Circuit Judge.

      Mark Bradford Yarbrough appeals the District Court’s decision declining to

dismiss his indictment, which charges violations of 18 U.S.C. § 922(g)(1) and 18 U.S.C.

§ 924(e) based upon Yarbrough’s possession of firearms as a previously convicted felon.
Yarbrough argues that (1) the District Court lacked jurisdiction over his criminal

prosecution because 18 U.S.C. § 922(g)(1) is unconstitutional under the Commerce

Clause, (2) the Government lacked standing to prosecute him because it alleged no injury

in fact, and (3) the Government violated the Speedy Trial Act, 18 U.S.C. § 3161, by

failing to bring him to trial within seventy days. We reject each of Yarbrough’s

arguments and will affirm.

                                             I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case, so we set forth only those facts necessary to our analysis. On June 6,

2006, a federal grand jury indicted Yarbrough for two counts of possessing a firearm in

violation of 18 U.S.C. § 922(g)(1), which precludes convicted felons both from

“ship[ping] or transport[ing] in interstate or foreign commerce, or possess[ing] in or

affecting commerce, any firearm or ammunition,” and from “receiv[ing] any firearm or

ammunition which has been shipped or transported in interstate or foreign commerce.”

The grand jury also indicted Yarbrough under 18 U.S.C. § 924(e), which increases the

penalty for violations of 18 U.S.C. § 922(g)(1) when the offender has three or more

“violent felony” or “serious drug offense” convictions.

       Yarbrough pled not guilty at his arraignment on June 6, 2006. Between June 7,

2006 and May 26, 2009, he filed thirty-one motions and sought and received thirteen

extensions of time. Most importantly for Yarbrough’s Speedy Trial Act claim, he filed

four motions on June 16, 2006. The District Court resolved one of his four motions on

June 30, 2006, but the other three remained pending until May 15, 2009, when the

                                             2
District Court denied them following a hearing. On May 20, 2009, Yarbrough moved to

obtain a transcript of his May 15, 2009 hearing, which the District Court resolved on May

22, 2009.

       Among Yarbrough’s motions, he requested that the District Court dismiss his

indictment because the Government lacked standing to prosecute him and because the

Government violated the Speedy Trial Act. The District Court rejected both of

Yarbrough’s arguments and scheduled his case for trial.

       On May 26, 2009, Yarbrough pled guilty pursuant to a written plea agreement.

The plea agreement states that Yarbrough waived his right to appeal except on five

issues, including “[w]hether the court properly denied those portions of Document No.

107 regarding the court’s jurisdiction over this matter.” (A. 12.) In Document 107,

Yarbrough contends, pro se, that the District Court lacked jurisdiction because the

prosecutor and the judge never proved their identities.

       Yarbrough now appeals, contending that the District Court erred in refusing to

dismiss his indictment. He argues that the District Court lacked jurisdiction over his

criminal prosecution because 18 U.S.C. § 922(g)(1) is unconstitutional under the

Commerce Clause, and that the District Court erred in holding that the Government had

standing to prosecute him and that the Government did not violate the Speedy Trial Act.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review because Yarbrough



                                             3
challenges “the district court’s construction of statutes and case law.” United States v.

Cross, 128 F.3d 145, 147 (3d Cir. 1997).

                                             A.

       Yarbrough contends that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and

that the Government’s “proffered evidence of the interstate commerce nexus in this case

. . . is inadequate under the Constitution to support a conviction.” (Appellant’s Br. 14.)

Yarbrough’s arguments rest on his assertion that “evidence that a firearm moved across

state lines at some point in time during its existence” is inadequate to satisfy the

Commerce Clause. Id. at 18. The Government asserts that Yarbrough waived his

argument concerning § 922(g)(1)’s constitutionality because the only jurisdictional

challenge he preserved in his plea agreement was his argument in Document 107.

       Yarbrough did not waive his facial challenge to § 922(g)(1)’s constitutionality

because a defendant does not waive a jurisdictional challenge by pleading guilty. See

United States v. Spinner, 180 F.3d 514, 516 (3d Cir. 1999). A challenge is jurisdictional

“[w]here the State is precluded by the United States Constitution from haling a defendant

into court on a charge.” Menna v. New York, 423 U.S. 61, 62 (1975); see also United

States v. Broce, 488 U.S. 563, 569 (1989) (a guilty plea does not waive an argument

when “on the face of the record the court had no power to enter the conviction”).

Yarbrough’s challenge is jurisdictional because, if § 922(g)(1) is facially

unconstitutional, the District Court lacked power to charge and to convict him.

       Yarbrough’s challenge, however, is meritless. The Commerce Clause permits the

Government to regulate “the channels of interstate commerce,” “the instrumentalities of

                                              4
interstate commerce,” and “those activities having a substantial relation to interstate

commerce.” United States v. Morrison, 529 U.S. 598, 609 (2000) (internal citations

omitted). We previously held that “proof . . . that [a] gun had traveled in interstate

commerce, at some time in the past, [is] sufficient to satisfy the interstate commerce

element,” so § 922(g)(1) is constitutional. United States v. Singletary, 268 F.3d 196, 205

(3d Cir. 2001). Because we already squarely decided that § 922(g)(1) is constitutional,

Yarbrough’s facial challenge fails.

       Yarbrough waived his “as applied” argument that the Government failed to

demonstrate a sufficient interstate commerce nexus when he pled guilty. When a

defendant enters a knowing and voluntary guilty plea, the defendant “admit[s] guilt of a

substantive crime” and waives all non-jurisdictional defenses, except for those that the

plea agreement expressly preserves. Broce, 488 U.S. at 570; United States v. Jackson,

523 F.3d 234, 244 (3d Cir. 2008). Yarbrough did not preserve his argument that the

Government failed to demonstrate an interstate commerce nexus in the plea colloquy, and

his challenge is not jurisdictional because an “as applied” challenge does not affect the

facial validity of the indictment. See Menna, 423 U.S. at 62 (an argument is

jurisdictional when it precludes the Government from bringing the charge); United States

v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992) (an argument is jurisdictional only when it

shows “the government lacked the power to bring the indictment at the time of accepting

the guilty plea from the face of the indictment or from the record”) (emphasis and citation

omitted). In any event, Yarbrough admitted that he possessed a firearm “in or affecting

interstate commerce” by pleading guilty. (A. 17.) Accordingly, Yarbrough waived his

                                              5
right to contend that the Government provided inadequate evidence of an interstate

commerce nexus to satisfy the Commerce Clause.

                                              B.

       Yarbrough contends that the Government lacked standing because it failed to

allege an injury in fact under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

To demonstrate standing, a party must show “(1) an injury in fact . . . (2) causation[,] . . .

and redressability.” Freeman v. Corzine, 629 F.3d 146, 153 (3d Cir. 2010) (citations

omitted). The Government doubtlessly suffers an “injury in fact” when a defendant

violates its criminal laws. See Vt. Agency of Natural Res. v. United States ex rel. Stevens,

529 U.S. 765, 771 (2000) (the Government suffers injury from the “violation of its

laws”); United States v. City of Pittsburgh, 757 F.2d 43, 45 (3d Cir. 1985) (“the United

States may bring suit to protect its sovereign interests notwithstanding the lack of any

immediate pecuniary interest”) (quoting United States v. Lewisburg Area Sch. Dist., 539

F.2d 301, 305 (3d Cir. 1976)). Because the Government has standing to enforce its own

laws, Yarbrough’s argument that the Government has failed to allege an injury in fact is

frivolous.

                                              C.

       Finally, we reject Yarbrough’s argument that the Government violated the Speedy

Trial Act. The Speedy Trial Act requires the Government to bring a defendant to trial

within seventy days from the defendant’s information, indictment, or arraignment,

whichever date occurs last. See 18 U.S.C. § 3161(c)(1). The Speedy Trial Act excludes

“delay resulting from any interlocutory appeal;” “delay resulting from any pretrial

                                              6
motion, from the filing of the motion through the conclusion of the hearing on, or other

prompt disposition, of such motion;” and “delay reasonably attributable to any period, not

to exceed thirty days, during which any proceeding concerning the defendant is actually

under advisement by the court.” 18 U.S.C. § 3161(h)(1)(C), (D), (H). The Speedy Trial

Act also excludes “[a]ny period of delay resulting from a continuance granted by any

judge on his own motion or at the request of the defendant or his counsel . . . if the judge

granted such continuance on the basis of his findings that the ends of justice served by

taking such action outweigh the best interest of the public.” 18 U.S.C. § 3161(h)(7).

       Yarbrough argues that the Government violated the Speedy Trial Act because

nearly three years lapsed between his indictment and his guilty plea. However, as the

Government contends, fewer than seventy of the days between Yarbrough’s indictment

and his guilty plea were non-excludable.

       Yarbrough’s indictment and arraignment occurred on June 6, 2006. As the

Government concedes, the following nine days were non-excludable. On June 16, 2006,

Yarbrough stopped the Speedy Trial Act clock by filing four motions. See 18 U.S.C. §

3161(h)(1)(D) (excluding “delay resulting from any pretrial motion”). Three of

Yarbrough’s motions remained pending until May 15, 2009, so the period between June

16, 2006 and May 15, 2009 was excludable under 18 U.S.C. § 3161(h)(1)(D). The

following five days were non-excludable. Then on May 20, 2009, Yarbrough filed a

motion seeking a transcript of his May 15, 2009 hearing, so the Speedy Trial Act clock

stopped until the District Court resolved Yarbrough’s motion on May 22, 2009. See 18

U.S.C. § 3161(h)(1)(D). On May 26, 2009, Yarbrough pled guilty, which stopped the

                                              7
Speedy Trial Act clock altogether. Accordingly, just seventeen non-excludable days

passed between Yarbrough’s indictment and his guilty plea. 1

       Further, even disregarding the motions that Yarbrough filed on June 16, 2006,

Yarbrough filed numerous other motions and continuance requests that stopped the

Speedy Trial Act clock during the period between his indictment and his plea hearing.

On July 20, 2006, Yarbrough filed a motion requesting the District Court to reconsider

the magistrate judge’s denial of bond, which remained pending until March 16, 2007,

during which time two attorneys representing Yarbrough withdrew from the case.

Additionally, before and after March 16, 2007, Yarbrough sought and received thirteen

extensions of time to file pretrial motions, which resulted in excludable time under 18

U.S.C. § 3161(h)(7)(A). 2 These extensions lasted until May 30, 2008. Moreover, more

than a dozen motions that Yarbrough had filed before and after May 30, 2008, remained

pending until May 15, 2009. Thus, even ignoring Yarbrough’s June 16, 2006 motions,

fewer than seventy non-excludable days passed between Yarbrough’s indictment and his

guilty plea hearing, so his Speedy Trial Act claim fails.

       1
         Yarbrough contends that the District Court failed to rule on the motions that he
filed on June 16, 2006. However, the record demonstrates that the District Court ruled on
one of his motions on June 30, 2006, and decided the remaining three motions on May
15, 2009.
       2
          Asserting that the District Court failed to state why each continuance served the
ends of justice, Yarbrough contends that his requests for continuances were not
excludable under 18 U.S.C. § 3161(h)(7)(A). Yarbrough’s argument lacks merit because
the District Court did state that each requested continuance served the ends of justice for
the reasons that Yarbrough set forth in his own motions, and no further elaboration was
necessary. See United States v. Lattany, 982 F.2d 866, 879 (3d Cir. 1992) (a district court
need not “articulate facts which . . . are set forth in the motion for the continuance
itself”).
                                             8
                                    III.

For the foregoing reasons, we will affirm the District Court’s judgment.




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