                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________  ELEVENTH CIRCUIT
                                                           September 29, 2005
                                                             THOMAS K. KAHN
                              No. 05-11893                        CLERK
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 04-00199-CR-CG-002

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

     versus

STEVEN GLENN MILLER,

                                                       Defendant-Appellant.

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Alabama
                        _________________________
                            (September 29, 2005)



Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
       Steven Glenn Miller appeals his conviction for being a convicted felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on

appeal is whether § 922(g)(1) is constitutional as applied to Miller, under the

Commerce Clause, where the only evidence connecting the firearm to interstate

commerce was its manufacture out of state. Miller admits that, under our caselaw,

the fact that the firearm previously had traveled in interstate commerce is

sufficient to satisfy the interstate commerce element of § 922(g)(1). However,

Miller relies upon United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995),

United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), and Jones v.

United States, 529 U.S. 848, 120 S. Ct. 1904 (2000), to support his proposition

that, because the Constitution does not provide Congress with a general police

power, there must be more than a minimal connection between criminal activity

and interstate commerce.

       Because Miller did not raise this constitutional challenge in the district

court, our review is only for plain error. On appeal, Miller must show that there is

(1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” United

States v. Olano, 507 U.S. 725, 732–34, 113 S. Ct. 1770 (1993). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or

                                            2
public reputation of judicial proceedings.’” Johnson v. United States, 520 U.S.

461, 467, 117 S. Ct. 1544 (1997) (quoting Olano, 507 U.S. at 732, 113 S. Ct. at

1770) (other internal quotation marks omitted).

      Here Miller acknowledges that there is no error under Eleventh Circuit law.

See Appellant’s Brief at 6–7 (citing United States v. Dupree, 258 F.3d 1258, 1260

(11th Cir. 2001); United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996)).

Miller brings this appeal in order to preserve the issue. Because there is no error

Miller’s claim fails at the first prong of the plain error test.

      AFFIRMED.




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