                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2006

USA v. Constant
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4518




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"USA v. Constant" (2006). 2006 Decisions. Paper 433.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     NO. 05-4518
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                                 IVAN CONSTANT,

                                                            Appellant
                                     __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 02-cr-00434)
                      District Judge: Honorable Anita B. Brody
                                     __________

                      Submitted under Third Circuit LAR 34.1(a)
                                 September 12, 2006

            BEFORE: FUENTES, FISHER, AND BRIGHT*, Circuit Judges

                              (Filed: September 20, 2006)
                                      __________

                                      OPINION
                                     __________

BRIGHT, Circuit Judge.

      This case comes before us a third time. A jury convicted Ivan Constant of being a



*
Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
felon in possession of a firearm, 18 U.S.C. § 922(g)(1), we affirmed, and the Supreme

Court remanded the case to us for consideration in light of United States v. Booker, 543

U.S. 220 (2005). See United States v. Constant, 117 Fed. Appx. 225 (3d Cir. 2004)

(unpublished), vacated by 544 U.S. 971 (2005) (mem.). We remanded the case to the

District Court. See United States v. Constant, No. 04-1025 (3d Cir. Aug. 16, 2005)

(unpublished). The District Court resentenced Constant to seventy-two months’

imprisonment, three years’ supervised release, and imposed a fine of $400 and a special

assessment of $100. Constant now appeals the judgment of conviction in order to

challenge only the constitutionality of the felon in possession statute.

       Constant challenged the constitutionality of the felon in possession statute in his

first appeal before us, alleging it violated the Commerce Clause of the United States

Constitution, see United States v. Lopez, 514 U.S. 549 (1995). We rejected his challenge

because it is foreclosed by our opinion in United States v. Singletary, 268 F.3d 196, 205

(3d Cir. 2001). See Constant, 117 Fed. Appx. at 226. Both the Supreme Court’s remand

to us and our remand to the District Court directed reconsideration only of Constant’s

sentence in light of Booker. See United States v. Constant, 544 U.S. 971 (2005); No. 04-

1025 (3d Cir. Aug. 16, 2005). The challenge Constant presents here to his conviction,

rather than his sentence, is thus beyond the scope of remand and we will not revisit the

issue. See, e.g., In re City of Philadelphia Litigation, 158 F.3d 711, 717-18 (3d Cir.

1998) (under law of the case doctrine appellate panel will generally not reconsider

question already resolved by previous panel in same case); United States v. Copple, 24

                                              2
F.3d 535, 549 n.22 (3d Cir. 1994) (applying law of the case doctrine in criminal context);

United States v. Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (same).

      Constant recognizes that he can obtain no relief in this Court, but raises the issue

“to [attempt to] preserve the claim for review by the Supreme Court of the United States

and/or for any subsequent collateral proceeding.”

      Accordingly, we will affirm the conviction and sentence.

                                       __________




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