                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                APR 9 2002
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 00-3392
                                                    (D. C. No. 00-CR-20017-JWL)
 RICHARD SWIFT,                                              (D. Kansas)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, EBEL and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

      This appeal is from an order of the district court finding the defendant had

previously been convicted of the felony offense of possession of marijuana in Wyandotte

County District Court, and that he knowingly possessed a firearm that had affected


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
interstate commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district

court specifically found that the fact that the weapon had been manufactured in Maryland

and shipped and transported in interstate commerce satisfied the interstate commerce

element of the offense. The district court found the defendant guilty of the offenses

charged. After a sentencing hearing, the defendant was sentenced to 37 months

imprisonment, 3 years of supervised release, a fine of $250, and a special assessment of

$100. The sole issue in this appeal is whether the district court’s determination that the

parties’ stipulation that the firearm in question was manufactured in Maryland and

subsequently crossed a state line in order to arrive in the possession of the defendant was

sufficient to establish the interstate nexus requirement of 18 U.S.C. § 922(g).

       Defendant waived his right to a jury trial and submitted this case to the court on

the following stipulated facts:

               On November 30, 1999 at approximately 1:30 p.m. Officer Hylton of
       the Kansas City Kansas Police Department stopped a blue Chevrolet Impala
       at 1209 N. 10th Street, Kansas, City, Kansas. The car was stopped for
       improper passing on the right and speeding. The driver, Jasper
       Cunningham did not have a driver’s license on him, so he was asked to
       leave the vehicle. The defendant, Richard A. Switft jr. [sic] was sitting in
       the front passenger seat and had a bottle of Bud Light beer between his legs.
       The defendant was asked to get out of the car by Officer Ellington, who has
       [sic] arrived to assist Officer Hylton. The defendant did not respond to the
       officers [sic] request to get out of the car. Officer Hylton entered the
       driver’s side of the vehicle and attempted to take the bottle of beer from
       between the defendant’s legs. As this happened, the defendant put his
       hands into his jacket and onto the butt of a gun. The defendant then put his
       elbow against the gun to attempt to prevent officer Hylton from recovering
       the firearm. The officer was ultimately able to recover the firearm from the
       defendant and he was arrested. The defendant had previously been

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       convicted of a felony. On August 26, 1999 the defendant was convicted of
       possession of marijuana in the District Court of Wyandotte County Kansas,
       and was sentenced to 24 months probation. The firearm recovered from the
       defendant was a 40 caliber Baretta, Model 96, with serial number BER
       116212. This firearm was manufactured by Baretta USA in Maryland.
       Therefore, the firearm necessarily traveled in interstate commerce in order
       for the defendant to be found in possession of it in Kansas City, Kansas.

       On appeal here defendant challenges the constitutionality of 18 U.S.C. § 922(g) as

it was applied in this case. We review this issue de novo. The arguments that defendant

makes are foreclosed by circuit precedent. United States v. Dorris, 236 F.3d 582 (10th

Cir. 2000). Defendant suggests that the Dorris case conflicts with the holdings of the

United States Supreme Court in United States v. Morrison, 529 U.S. 598 (2000) and

Jones v. United States, 529 U.S. 848 (2000). That allegation is incorrect. The court in

Dorris held that the government has no duty to prove that the gun possession had any

actual or substantial effect on interstate commerce. In the Dorris case this court

thoroughly reviewed the Supreme Court’s decision in Morrison and Jones and properly

concluded that there was no conflict between the Dorris determination and the holdings

of the United States Supreme Court. We affirm the holding of the district court that the

parties’ stipulation was sufficient to satisfy the interstate commerce requirement of 18

U.S.C. § 922(g). AFFIRMED.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge

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