                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-2-2001

USA v. Singletary
Precedential or Non-Precedential:

Docket 00-3850




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Filed October 2, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3850

UNITED STATES OF AMERICA

v.

JAMAAL ADEEM ATIF SINGLETARY,
a/k/a
JAMAL SINGLETARY
a/k/a
CURTIS SINGLETARY

       Jamaal Singletary,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 00-cr-00199)
District Court Judge: The Honorable Charles R. Weiner

Submitted Under Third Circuit L.A.R. 34.1(a)
July 27, 2001

Before: ROTH, BARRY, and FUENTES, Circuit Judges

(Opinion Filed: October 2, 2001)
       Maureen Kearney Rowley
        Chief Federal Defender
       David L. McColgin
        Assistant Federal Defender
       Federal Court Division
       Defender Association of Philadelphia
       Suite 540 West - The Curtis Center
       Independence Square West
       Philadelphia, PA 19106-2414

        ATTORNEYS FOR APPELLANT

       Michael L. Levy
        United States Attorney
       Robert A. Zauzmer
        Assistant United States Attorney
        Chief of Appeals
       Lesley S. Bonney
        Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

        ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge:

Following a jury trial, defendant, Jamaal Singletary, was
convicted on one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. S 922(g)(1). On
appeal, Singletary contends that the felon-in-possession
statute is unconstitutional because the conduct it
proscribes -- the intrastate possession of a firearm -- does
not have a substantial effect upon interstate commerce,
and thus does not constitute a valid exercise of Congress'
authority under the Commerce Clause. Specifically,
Singletary contends that, although in United States v.
Gateward, 84 F.3d 670 (3d Cir. 1996), we upheld the
constitutionality of S 922(g)(1) as a proper exercise of
Congress' regulatory power under the Commerce Clause,
that holding must be reconsidered in the wake of the
Supreme Court's decisions in United States v. Morrison, 529

                                  2
U.S. 598 (2000), and Jones v. United States, 529 U.S. 848
(2000). Because we conclude that those decisions do not
undermine our prior construction of the felon-in-possession
statute, we will reaffirm our holding in Gateward and affirm
the judgment of the District Court.

I.

The relevant facts are not in dispute. During the evening
of December 8, 1999, Police Officer Thomas Liciardello was
watching a suspected stolen car in the area of Cobbs Creek
Parkway and Larchwood Avenue in Philadelphia,
Pennsylvania. At about 7:30 p.m., while watching the car,
Liciardello saw a blue pick-up truck drive across the
sidewalk and into the park located there. He saw
Singletary, the driver, get out of the truck, fire two shots
into the air with a silver handgun, and then jump back into
the truck and drive on through the park. Liciardello radioed
information about the truck, and Officers John Spence and
Maurice Haughton began chasing the truck as it left the
park. During the chase, Spence saw a gun tossed out the
passenger side window. The officers stopped the truck a
short distance later, and Officer Liciardello located the gun
on the street.

On April 18, 2000, a grand jury in the Eastern District of
Pennsylvania indicted Singletary on one count of unlawful
possession of a firearm by a convicted felon in violation of
18 U.S.C. S 922(g)(1). Specifically, he was charged with
having "knowingly possessed in and affecting foreign and
interstate commerce, a .38 caliber Taurus International
revolver . . . loaded with four live rounds and two spent
rounds of ammunition." On July 5, 2000, the District Court
denied a defense motion to dismiss the indictment,
rejecting Singletary's argument that the statute is
constitutionally infirm both facially and as applied because
it does not require that the act of gun possession have a
substantial effect on interstate commerce.

At trial, the Government established through the
undisputed expert testimony of Special Agent James J.
Uvena of the Bureau of Alcohol, Tobacco & Firearms that
the gun in question was manufactured in Brazil, imported

                               3
into the United States through Atlanta, Georgia, and
eventually sent to a firearms dealer in Texas in 1973. No
further documentation on the gun was available, and thus,
the Government presented no evidence regarding when the
gun had come into Pennsylvania. Additionally, the
Government presented no evidence concerning any effect
the gun had on interstate commerce. As for the other
elements of the crime, Singletary stipulated that he had a
prior felony conviction, and the issue of possession, while
hotly contested at trial, is not germane to the issues before
us on appeal.

At the close of the Government's case, defense counsel
submitted a proposed jury instruction that would have
required the Government to prove "[t]hat the possession of
the firearm substantially [a]ffected interstate commerce." An
additional proposed instruction would have given the jury
the following definition of the phrase "in or affecting
commerce":

       This means that the government must prove beyond a
       reasonable doubt that, the possession of the firearm in
       question, had a substantial effect on interstate
       commerce. In order to find that the possession of this
       weapon had the requisite impact on interstate
       commerce, you must find that the possession of the
       gun in question had a substantial relation to interstate
       commerce in and of itself.

The court denied the requested instructions and also
barred defense counsel from arguing to the jury that the
Government had failed to prove that the possession of the
firearm had a substantial relation to interstate commerce.
For its charge, the court instructed the jury that:

       [t]o prove that the firearm was possessed in or affecting
       interstate or foreign commerce, the Government must
       prove that at some time prior to defendant's possession
       of the firearm, the firearm had traveled in interstate or
       foreign commerce . . . that at any time prior to the date
       charged in the Indictment, the firearm crossed a state
       line.

The jury returned a guilty verdict. Defense counsel once
again moved for a judgment of acquittal, which the court

                                4
denied on November 6, 2000. The court subsequently
sentenced Singletary to 27 months' imprisonment, three
years' supervised release, a special assessment of $100,
and a fine of $200.

II.

On appeal, Singletary contends that the Supreme
Court's recent Commerce Clause jurisprudence renders
18 U.S.C. S 922(g)(1), the felon-in-possession statute,
unconstitutional, and therefore, his conviction invalid. In
the alternative, he argues for a reversal because of
insufficient evidence on the interstate commerce element,
or for a new trial because of the District Court's erroneous
jury instructions on that same element.1

The District Court exercised jurisdiction over this case
under 18 U.S.C. S 3231, and we have appellate jurisdiction
under 28 U.S.C. S 1291. Because Singletary challenges the
constitutionality of S 922(g)(1), we will exercise plenary
review over the District Court's assertion of federal
jurisdiction. See United States v. Rodia, 194 F.3d 465, 469
(3d Cir. 1999) ("Our review of the statute's constitutionality
is plenary, though we must respect Congress's ample
discretion to determine the appropriate exercise of its
Commerce Clause authority."), cert. denied , 529 U.S. 1131
(2000); accord United States v. One Toshiba Color Television,
213 F.3d 147, 151 (3d Cir. 2000) (en banc) ("Our review
over constitutional issues is plenary."). Moreover, "[b]ecause
each of [Singletary's] challenges is based on the district
court's construction of statutes and case law, we will
exercise plenary review." United States v. Cross, 128 F.3d
145, 147 (3d Cir. 1997).

A.

Under the Commerce Clause of the United States
Constitution, Congress is empowered "[t]o regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S. Const., art. I, S 8,
_________________________________________________________________

1. Singletary moved for an initial en banc   consideration of his appeal by
this Court, but we denied that request.

                               5
cl. 3. Pursuant to this authority, Congress enacted the
felon-in-possession statute, which provides, in relevant
part:

       (g) It shall be unlawful for any person --

       (1) who has been convicted in any court of, a crime
       punishable by imprisonment for a term exceeding one
       year . . . to ship or transport in interstate or foreign
       commerce, or 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.

18 U.S.C. S 922(g)(1). The statute can be read to create
three crimes for convicted felons: (1) "to ship or transport in
interstate or foreign commerce . . . any firearm or
ammunition"; (2) "to . . . possess in or affecting commerce,
any firearm or ammunition"; and (3) "to receive any firearm
or ammunition which has been shipped or transported in
interstate or foreign commerce." Plainly, (1) shipping or
transporting and (3) receiving any firearm or ammunition
"in interstate or foreign commerce" are both distinct crimes.
Notably, however, Congress did not use the phrase"in
interstate or foreign commerce" when it criminalized
possession. Instead, Congress merely employed the phrase
"in or affecting commerce."

At the time the Supreme Court established what remains
the governing jurisprudence on federalization of gun
possession, the felon-in-possession statute, then codified at
18 U.S.C. S 1202(a), was phrased differently. Specifically,
the "predecessor statute to S 922(g)(1)[ ] made any felon
`who receives, possesses, or transports in commerce or
affecting commerce . . . any firearm' guilty of a federal
offense." United States v. Gateward, 84 F.3d 670, 671 (3d
Cir. 1996) (quoting 18 U.S.C. S 1202(a) (repealed 1986)). In
two key decisions, the Supreme Court addressed the
interstate commerce aspect of this predecessor statute to
S 922(g)(1).

First, in United States v. Bass, the Court construed 18
U.S.C. S 1202(a) against the Government's contention that
the statute "banned all possessions and receipts of firearms
by convicted felons, and that no connection with interstate

                               6
commerce had to be demonstrated in individual cases." 404
U.S. 336, 338 (1971). In rejecting the Government's
expansive reading, the Court held that "the commerce
requirement in S 1202(a) must be read as part of the
`possesses' and `receives' offenses." Id. at 350. That is, the
use of commas in the language of the statute implied an
enumeration of related ideas, all modified by the phrase "in
commerce or affecting commerce." The Court further opined
that, "[a]bsent a clearer statement of intention from
Congress than is present here, we do not interpretS 1202(a)
to reach the `mere possession' of firearms" because
otherwise, without "proof of some interstate commerce
nexus in each case, S 1202(a) dramatically intrudes upon
traditional state criminal jurisdiction." Id.

Nearly six years later, the Court in Scarborough v. United
States had the opportunity to address squarely"whether
proof that the 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).
The Court accepted the Government's contention that it
only need prove that "the firearm possessed by the
convicted felon traveled at some time in interstate
commerce." Id. at 568. Thus, the Scarborough Court
established the proposition that the transport of a weapon
in interstate commerce, however remote in the distant past,
gives its present intrastate possession a sufficient nexus to
interstate commerce to fall within the ambit of the statute.
Because S 1202(a) is the predecessor to the current felon-
in-possession statute, this statutory construction applies
equally to S 922(g)(1).

B.

Distilled to its core, we construe the precise question
raised by Singletary in this appeal to be whether the
proposition established in Scarborough survives as a viable
statutory construct in the wake of United States v. Lopez,
514 U.S. 549 (1995), United States v. Morrison , 529 U.S.
598 (2000), and Jones v. United States, 529 U.S. 848
(2000). Specifically, Singletary contends that the felon-in-
possession statute is facially unconstitutional because the

                               7
conduct it proscribes -- the intrastate possession of a
firearm -- does not have a substantial affect upon
interstate commerce, and thus, does not constitute a valid
exercise of Congress' authority under the Commerce
Clause. Alternatively, as applied to his circumstances,
Singletary maintains that the statute is unconstitutional
because there was no evidence that his possession of the
gun substantially affected interstate commerce, or indeed,
that it had any effect whatsoever on commerce, interstate
or intrastate. Consequently, Singletary argues that the
District Court erred in failing to give the requested jury
instructions regarding the Government's burden of proving
that the possession of the gun substantially affected
interstate commerce, and in barring defense counsel from
arguing this point to the jury.

In Lopez, the Supreme Court addressed the
constitutionality of the Gun-Free School Zones Act of 1990,
18 U.S.C. S 922(q)(1)(A), which made it a federal offense "for
any individual knowingly to possess a firearm at a place
that the individual knows, or has reasonable cause to
believe, is a school zone." The Court concluded that
Congress had exceeded its authority under the Commerce
Clause in enacting this statute because the statute neither
regulated a commercial activity (possession of a gun near a
school) nor contained a requirement that the possession of
a firearm in a school zone be connected in any way to
interstate commerce. See 514 U.S. at 551, 567-68.

The Lopez Court initially reviewed the history of its
Commerce Clause jurisprudence, stressing that Article I,
S 8 of the Constitution gave Congress enumerated (and
therefore limited) powers, particularly as against the
antecedent powers of the states, and that an expansive
construction of the Commerce Clause would effectively read
out those limitations. See id. at 552-58. Consistent with
this jurisprudence, the Court identified three broad areas
that Congress may regulate under the Commerce Clause:
(1) "the use of the channels of interstate commerce"; (2) "the
instrumentalities of interstate commerce, or persons and
things in interstate commerce, even though the threat may
only come from intrastate activities"; and (3)"those
activities having a substantial relation to interstate

                               8
commerce." Id. at 558-59. In Lopez , the Court determined
that the plain language of the regulation at issue placed it
in the third category. See id. at 559. But the Court also
noted that S 922(q) was "a criminal statute that by its terms
has nothing to do with `commerce' or any sort of economic
enterprise, however broadly one might define those terms."
Id. at 561.

Next, the Court observed that "S 922(q) contains no
jurisdictional element which would ensure, through case-
by-case inquiry, that the firearm possession in question
affects interstate commerce." Id. On this point, it
distinguished its prior holding in Bass, noting that there it
had found the requisite nexus to interstate commerce when
the criminal statute contained a clause limiting its reach to
the receipt, possession, or transfer of firearms in commerce.
See id. at 561-62. As we explained above, Bass involved a
challenge to the former 18 U.S.C. S 1202(a), the predecessor
to today's S 922(g)(1). Thus, while the Supreme Court has
never addressed S 922(g)(1) in its current form, it presumed
that the former S 1202(a) would survive constitutional
scrutiny if the Government provided evidence to show that
the firearm was possessed or transported in commerce. See
Bass, 404 U.S. at 351. The Court, of course, established in
Scarborough the proposition that proof of a firearm's prior
travel in interstate commerce demonstrated a sufficient
nexus to commerce to justify federal prohibition. Thus, the
Court in Lopez concluded that, "[u]nlike the statute in
Bass, S 922(q) has no express jurisdictional element which
might limit its reach to a discrete set of firearm possessions
that additionally have an explicit connection with or effect
on interstate commerce." 514 U.S. at 562.

Finally, the Court examined the legislative history of the
regulation, observing that the Government itself had
conceded in its brief that " `[n]either the statute nor its
legislative history contain[s] express congressional findings
regarding the effects upon interstate commerce of gun
possession in a school zone.' " Id. at 562 (quoting Gov't Br.
at 5-6). In the end, the Court rejected the Government's
contention "that possession of a firearm in a school zone
may result in violent crime and that violent crime can be
expected to affect the functioning of the national economy"

                               9
because to accept it would require "pil[ing] inference upon
inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a
general police power of the sort retained by the States." Id.
at 563, 567.

A year after Lopez, we had the occasion to consider its
implications for the felon-in-possession statute,S 922(g)(1).
In United States v. Gateward, we stated that we did "not
understand Lopez to undercut the Bass/Scarborough
proposition that the jurisdictional element `in or affecting
commerce' keeps the felon firearm law well inside the
constitutional fringes of the Commerce Clause." 84 F.3d
670, 671 (3d Cir. 1996). Rather, we explained as follows:

       The Lopez Court invalidated S 922(q) because "by its
       terms [it] has nothing to do with `commerce' or any sort
       of economic enterprise, however broadly one might
       define those terms," and because "S 922(q) contains no
       jurisdictional element which would ensure, through
       case-by-case inquiry, that the firearm possession in
       question affects interstate commerce."

Id. at 671-72 (quoting Lopez, 514 U.S. at 561). Thus, the
Gateward Court, noting that the gun in question"had
moved in interstate commerce," straightforwardly applied
Scarborough and affirmed the conviction. Id. at 672. As
Singletary correctly points out, however, our respect for the
uniformity of decisions within this Court yields when a
prior panel's holding conflicts with a holding of the
Supreme Court. Mennen Co. v. Atl. Mut. Ins. Co. , 147 F.3d
287, 294 n.9 (3d Cir. 1998). Thus, the Supreme Court's
Commerce Clause jurisprudence in criminal cases since
Lopez necessitates a re-examination of our analysis in
Gateward.

C.

In United States v. Morrison, the Supreme Court
invalidated 42 U.S.C. S 13981, a statute that federalized "a
crime of violence committed because of gender or on the
basis of gender, and due, at least in part, to an animus
based on the victim's gender." See 529 U.S. at 607-27.
Although the Court acknowledged its statement in Lopez

                               10
that " `we have upheld a wide variety of congressional Acts
regulating intrastate economic activity where we have
concluded that the activity substantially affected interstate
commerce,' " it stressed that "a fair reading of Lopez shows
that the noneconomic, criminal nature of the conduct at
issue was central to our decision in that case." Id. at 610
(quoting Lopez, 514 U.S. at 559). The Court further
explained that "Lopez's review of Commerce Clause case
law demonstrates that in those cases where we have
sustained federal regulation of intrastate activity based
upon the activity's substantial effects on interstate
commerce, the activity in question has been some sort of
economic endeavor." Id. at 611; see also id. at 613
(observing that "thus far in our Nation's history our cases
have upheld Commerce Clause regulation of intrastate
activity only where that activity is economic in nature").

Analogizing to the statute at issue in Lopez, the Court
recognized that "S 13981 contains no jurisdictional element
establishing that the federal cause of action is in pursuance
of Congress' power to regulate interstate commerce." Id.
Indeed, the Court noted that "such a jurisdictional element
would lend support to the argument that S 13981 is
sufficiently tied to interstate commerce . . . ." Id.
Consequently, the Court read out the "costs of crime" and
"economic effects" that Congress had canvassed in the
extensive legislative history of the statute:

       Given these findings and petitioners' arguments, the
       concern that we expressed in Lopez that Congress
       might use the Commerce Clause to completely
       obliterate the Constitution's distinction between
       national and local authority seems well founded. The
       reasoning that petitioners advance seeks to follow the
       but-for causal chain from the initial occurrence of
       violent crime (the suppression of which has always
       been the prime object of the States' police power) to
       every attenuated effect upon interstate commerce. If
       accepted, petitioners' reasoning would allow Congress
       to regulate any crime as long as the nationwide,
       aggregated impact of that crime has substantial effects
       on employment, production, transit, or consumption.

Id. at 615 (citation omitted).

                                 11
Hence, after Morrison, the "economic effects" rationale
and congressional findings regarding such effects alone will
not serve to save a criminal statute under the Commerce
Clause if no commercial activity is, in fact, involved.
Notably, the Morrison Court (while not expressly addressing
it) implicitly left intact the proposition set forth in
Scarborough. Namely, to satisfy the statutorily required
nexus between the possession of a firearm by a convicted
felon and interstate commerce, the Government need only
prove that the possessed firearm previously traveled in
interstate commerce. See id. at 658 (Breyer, J., dissenting)
(noting that the Court reaffirmed Congress' power"to enact
laws that satisfy a commerce-related jurisdictional
prerequisite -- for example, that some item relevant to the
federally regulated activity has at some time crossed a state
line" and citing, among other decisions, Bass and
Scarborough).

Seven days after the Supreme Court announced Morrison,
it rendered its decision in Jones v. United States,
construing a criminal statute drafted with an explicit
interstate commerce jurisdictional element. Specifically,
that statute, 18 U.S.C. S 844(i), makes it a federal crime to
damage or destroy, "by means of fire or an explosive, any
. . . property used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce." Jones
had "tossed a Molotov cocktail through a window into a
home in Fort Wayne, Indiana, owned and occupied by his
cousin." 529 U.S. at 851. He was thereafter indicted and
convicted of this federal arson charge, and the Seventh
Circuit affirmed his conviction.

The Supreme Court granted certiorari, framing the
question presented as:

       Whether, in light of United States v. Lopez, and the
       interpretive rule that constitutionally doubtful
       constructions should be avoided, 18 U.S.C. S 844(i)
       applies to the arson of a private residence; and if so,
       whether its application to the private residence in the
       present case is constitutional.

Id. at 852 (internal citations omitted). In the Supreme
Court, the Government argued that the Fort Wayne

                               12
residence was indeed "used" in at least three activities
"affecting commerce" because: (1) the house was "collateral
to obtain and secure a mortgage from an Oklahoma lender";
(2) the homeowner insured the residence with "a casualty
insurance policy from a Wisconsin insurer"; and (3) the
dwelling received "natural gas from sources outside
Indiana." Id. at 855. However, the Court (in an opinion
authored by Justice Ginsburg) rejected these arguments,
reasoning that, "[w]ere we to adopt the Government's
expansive interpretation of S 844(i), hardly a building in the
land would fall outside the federal statute's domain." Id. at
857.

Importantly for our analysis (and particularly striking
because Justice Ginsburg was a Lopez dissenter), the Court
wrote: "Given the concerns brought to the fore in Lopez, it
is appropriate to avoid the constitutional question that
would arise were we to read S 844(i) to render the
`traditionally local criminal conduct' in which petitioner
Jones engaged `a matter for federal enforcement.' " Id. at
858 (quoting Bass, 404 U.S. at 350). The language Justice
Ginsburg quoted came from Bass, and two sentences later,
she again quoted Bass when she wrote: "We have
cautioned, as well, that `unless Congress conveys its
purpose clearly, it will not be deemed to have significantly
changed the federal-state balance' in the prosecution of
crimes." Id. (quoting Bass, 404 U.S. at 349). Thus, to avoid
Lopez concerns, as well as to maintain "the federal-state
balance" as a matter of statutory construction, the Court
held that the statute "covers only property currently used
in commerce or in an activity affecting commerce." Id. at
858, 859. Notably, in so holding (although without explicitly
stating), the Supreme Court chose not to extend the
proposition established in Scarborough to home ownership,
as the Government had invited it to do. That is, the Court
did not expand Scarborough to mean that a piece of
property, used in interstate commerce at some time in the
past, gave its current intrastate use a sufficient nexus to
interstate commerce to fall within the ambit of the arson
statute.

Despite the continued vitality of Scarborough , Singletary
would have us construe S 922(g)(1) without its benefit. That

                               13
is, he urges that we read the Supreme Court's use in Jones
of the phrase "currently used in commerce or in an activity
affecting commerce" as suggesting that the interstate
quality of a firearm, at some time in the past, has no
bearing on its present day status for purposes of fulfilling
the interstate commerce element. According to Singletary,
such a construction would also avoid Lopez and Morrison
implications by restricting the scope of the statute to apply
only to guns and ammunition that are currently in or
affecting commerce. In short, abandoning Scarborough
would permit us to conclude that Singletary's possession of
the gun was neither "used in commerce" nor had any
present or imminent interstate aspect. Moreover, we would
be constrained to conclude that the possession of the gun
did not occur in any commercial or transactional context.
His conviction therefore could not stand because he
essentially would have committed no federal crime under
S 922(g)(1).

Missing from Singletary's analysis, however, is the
recognition that, while Lopez and Morrison were questions
concerning the power of Congress to regulate activities
substantially affecting interstate commerce, S 922(g)(1)
regulates the possession of goods moved in interstate
commerce. The jurisdictional element in S 922(g)(1)
distinguishes it from the statutes considered in Lopez and
Morrison. Section 922(g)(1), by its very terms, only regulates
those weapons affecting interstate commerce by being the
subject of interstate trade. It addresses items sent in
interstate commerce and the channels of commerce
themselves, delineating that the latter be kept clear of
firearms. Thus, an analysis of the kind utilized in Lopez or
Morrison is neither appropriate nor needed.

Jones provides no further insight for us. While the law
challenged in Jones did have a jurisdictional element, the
challenge there involved the alleged use of a residence in
activities affecting interstate commerce. The rationale used
by the Jones Court to hold that the federal arson statute
only encompassed "property currently used in commerce or
in an activity affecting commerce" has little impact on the
assessment of whether firearms moved through interstate
commerce are subject to congressional regulation. The

                               14
analogy urged by Singletary is made even more
incongruous because the Jones Court neither expressly
overruled Scarborough nor rejected its directly applicable
proposition relevant to interpreting the gun possession
statutes.

Accordingly, our prior decision in Gateward remains the
law of this circuit, and we are bound to respect it, absent
an en banc consideration. See 3d Cir. I.O.P. 9.1; Am. Civil
Liberties Union of N.J. ex rel. Lander v. Schundler , 168 F.3d
92, 98 n.6 (3d Cir. 1999). In that vein, as we noted earlier
in the margin, we denied Singletary's request for an initial
en banc consideration by this Court. Moreover, even if there
were merit to Singletary's argument that the Supreme
Court's trinity of Commerce Clause decisions have
somehow weakened the precedential value of Scarborough,
we may not precipitate its decline. The Supreme Court itself
has admonished lower courts to follow its directly
applicable precedent, even if that precedent appears
weakened by pronouncements in its subsequent decisions,
and to leave to the Court itself " `the prerogative of
overruling its own decisions.' " Agostini v. Felton, 521 U.S.
203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484
(1989)). We have always sought to adhere strictly to that
counsel. See United States v. Abuhouran, 161 F.3d 206,
215 n.9 (3d Cir. 1998), cert. denied, 526 U.S. 1077 (1999);
Maldonado v. Houstoun, 157 F.3d 179, 190 (3d Cir. 1998),
cert. denied, 526 U.S. 1130 (1999); United States v. Bishop,
66 F.3d 569, 588 n.28 (3d Cir. 1995); Swin Resource Sys.,
Inc. v. Lycoming County, 883 F.2d 245, 255 (3d Cir. 1989).

We considered S 922(g)(1)'s post-Lopez constitutionality in
Gateward and decided in favor of the Government. Morrison
and Jones give no reason beyond what was already present
in Lopez to conclude that S 922(g)(1) lies beyond Congress'
Commerce Clause power. Indeed, our conclusion in
Gateward was uniformly shared by eight other circuits at
the time of that decision. See 84 F.3d at 672 (citing cases
from the Second, Fourth, Sixth, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits). Our present reaffirmation of
that holding joins those same eight circuits, all of which
have readdressed this issue in the wake of Morrison and

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Jones. See United States v. Dupree, 258 F.3d 1258, 2001
WL 835847, at *1 & n.1 (11th Cir. July 25, 2001); United
States v. Stuckey, 255 F.3d 528, 529-30 (8th Cir. 2001);
United States v. Gallimore, 247 F.3d 134, 137-38 (4th Cir.
2001); United States v. Davis, 242 F.3d 1162, 1162-63 (9th
Cir. 2001) (per curiam), petition for cert. filed, No. 00-10772
(U.S. June 18, 2001); United States v. Santiago , 238 F.3d
213, 216-17 (2d Cir. 2001) (per curiam), cert. denied, 121 S.
Ct. 2016 (2001); United States v. Dorris, 236 F.3d 582, 584-
86 (10th Cir. 2000), cert. denied, 121 S. Ct. 1635 (2001);
United States v. Napier, 233 F.3d 394, 399-402 (6th Cir.
2000); United States v. Wesela, 223 F.3d 656, 659-60 (7th
Cir. 2000), cert. denied, 121 S. Ct. 1145 (2001). We are
aware of no appellate court that has decided differently.

III.

Accordingly, we conclude 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, and therefore, we will affirm the
judgment of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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