                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           SEPTEMBER 20, 2007
                                 No. 07-10144               THOMAS K. KAHN
                             Non-Argument Calendar              CLERK
                           ________________________

                D. C. Docket No. 06-00064-CR-ORL-22-DAB

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

ROBERT TIM MARTIN,
a.k.a. Robert Martin,
a.k.a. Robert T. Martin,

                                                       Defendant-Appellant.


                           ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (September 20, 2007)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
       Robert Martin appeals his conviction and 235-month sentence for two

counts of possession of a firearm in or affecting interstate commerce by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1). He

argues that § 922(g)(1) is facially unconstitutional under the Commerce Clause, or

alternately, unconstitutional as applied to him. Further, he argues that the district

court acted unconstitutionally in increasing his sentence based on prior convictions

that were not proven to a jury. As these issues were not raised before the district

court, we review them for plain error. See United States v. Peters, 403 F.3d 1263,

1270 (11th Cir. 2005).

       We have previously examined the constitutionality of § 922(g)(1).1 United

States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996). Under the Commerce

Clause, Congress’ power to regulate is limited to “Commerce with foreign Nations,

and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8,

cls. 1 & 3. However, In McAllister, we held that § 922(g)(1) falls within this

regulatory power because it contains a jurisdictional element that links its

application to activities that affect interstate commerce. McAllister, 77 F.3d at 390.



       1
         18 U.S.C. § 922(g)(1) states: “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 of foreign commerce, or possess in or affecting commerce, any
firarm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.”

                                                2
Similarly, we have upheld § 922(g)(1) against as-applied constitutional challenges

when, as in this case, the government demonstrated at trial that the firearm

possessed by the defendant was manufactured out-of-state and thus traveled across

state lines in the past. See United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir.

2001) (finding that such evidence is sufficient to establish a minimal nexus with

interstate commerce). We thus find no error in the judgment below.

      Martin next argues that the district court violated his Sixth Amendment right

to trial by an impartial jury when it relied on his prior convictions to enhance his

sentence. As Martin concedes, his argument is precluded by the Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219,

140 L. Ed. 2d 350 (1998). Under this binding precedent, “the Sixth Amendment

does not require the government to allege in its indictment or to prove beyond a

reasonable doubt that a defendant’s prior convictions qualify him for enhanced

sentencing.” United States v. Dowd, 451 F. 3d 1244, 1253 (11th Cir.) (citing

Almendarez-Torres, 523 S.S at 226, 118 S. Ct. at 1222), cert. denied 127 S. Ct. 335

(2006). Accordingly, we find that Martin’s Sixth Amendment is foreclosed and we

affirm the decision below.

      AFFIRMED.




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