           Case: 13-15620   Date Filed: 07/07/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15620
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:13-cr-00011-RS-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JONATHAN EVERETT GIBSON,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                              (July 7, 2015)



Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.
               Case: 13-15620      Date Filed: 07/07/2015    Page: 2 of 4


PER CURIAM:



      Jonathan Gibson appeals his conviction after pleading guilty to one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). For the first time, Gibson -- on appeal -- argues that § 922(g)(1) is facially

unconstitutional; he says it violates the Commerce Clause and the Tenth

Amendment.

      We generally review constitutional challenges de novo, but because Gibson

failed to raise these arguments below, we review only for plain error. See United

States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). Therefore, Gibson must

demonstrate that error occurred, the error was plain, the error affects his substantial

rights, and the error seriously affects the fairness, integrity, or reputation of the

judicial proceedings. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005). An error cannot be “plain” unless it is “obvious” and “clear under

current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). In

addition, “only the Supreme Court or this [C]ourt sitting en banc can judicially

overrule a prior panel decision” of our Court. United States v. Dean, 604 F.3d

1275, 1278 (11th Cir. 2010).

      We have repeatedly upheld the constitutionality of § 922(g)(1) as a valid

exercise of Congress’s Commerce Clause power. See, e.g., United States v.


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Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Dupree, 258 F.3d

1258, 1260 (11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 391 (11th

Cir. 1996). None of the recent Supreme Court decisions relied on by Gibson

abrogated or reversed our prior decisions on the constitutionality of § 922(g)(1).

Furthermore, considering § 922(g)(1) is a valid exercise of Congress’s Commerce

Clause power, the statute does not violate the Tenth Amendment. See Cheffer v.

Reno, 55 F.3d 1517, 1521 (11th Cir. 1995).

      In this case, no plain error occurred. And Gibson’s arguments are squarely

foreclosed by binding precedent.

      Next, Gibson argues, for the first time, that the “minimal nexus” test set out

in Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52

L.Ed.2d 582 (1977), is no longer sufficient for establishing the required connection

to interstate commerce under § 922(g). He points to the Supreme Court’s

decisions in Bond v. United States, 572 U.S. ___, 134 S.Ct 2077, 189 L.Ed.2d 1

(2014), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902

(2000). Gibson maintains that a more significant connection to interstate

commerce is now required for § 922(g) to cover intrastate possession and says that

his conviction cannot stand because no significant connection to interstate

commerce exists. As this claim is also raised for the first time on appeal, we

review only for plain error. See Peters, 403 F.3d at 1270.


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      Neither Bond nor Jones involved § 922(g) or the “minimal nexus” test set

forth in Scarborough. Thus, Scarborough remains binding precedent; and the

“minimal nexus” test is the applicable standard for establishing a connection with

interstate commerce.

      We reject Gibson’s argument. And it is squarely foreclosed by binding

precedent. Thus, the district court did not plainly err when it convicted Gibson of

being a felon in possession of a firearm, in violation of § 922(g)(1), where the

Government established (and Gibson acknowledged) that the pertinent firearm

previously traveled in interstate commerce.

      AFFIRMED.




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