                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS July 13, 2012
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-2011
 v.
                                              (D.C. No. 1:11-CR-00282-JAP-1)
                                                          (D.N.M.)
 ROMAN KIRBY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Defendant-Appellant Roman Kirby pleaded guilty in the United States

District Court for the District of New Mexico to being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He entered his

guilty plea under a conditional plea agreement, which allows him to appeal the



      *
             This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.

            After examining the appellate record, this three-judge panel
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.
district court’s order denying his motion to dismiss. Mr. Kirby averred in his

motion to dismiss and avers again in this appeal that the felon-in-possession

statute under which he was convicted, 18 U.S.C. § 922(g)(1), is unconstitutional. 1

For the reasons that follow, we affirm the district court’s judgment.

                                         I

      On February 10, 2011, a federal grand jury returned a one-count indictment

against Mr. Kirby. The indictment charged Mr. Kirby with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On

July 18, 2011, Mr. Kirby filed a motion to dismiss the indictment alleging that 18

U.S.C. § 922(g)(1) is unconstitutional. He argued that Congress had exceeded its

power under the Commerce Clause in enacting the statute. In its response, the

government argued that binding precedent from both the Supreme Court and this

Court mandated that the district court deny Mr. Kirby’s motion.

      On August 30, 2011, the district court held a hearing on Mr. Kirby’s

motion to dismiss. The district court orally denied Mr. Kirby’s motion based on



      1
            18 U.S.C. § 922(g)(1) provides that:

            It shall be unlawful for any person . . . 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.

                                        -2-
Scarborough v. United States, 431 U.S. 563 (1977), and on this Court’s decision

in United States v. Patton, 451 F.3d 615 (10th Cir. 2006).

      After the court’s ruling, Mr. Kirby pleaded guilty to the indictment under a

conditional plea agreement. 2 The agreement provided that Mr. Kirby could appeal

the district court’s denial of his motion to dismiss and that, if he prevailed on

appeal, he would be allowed to withdraw his guilty plea.

      The court held a sentencing hearing on January 12, 2012, and sentenced

Mr. Kirby to 188 months of imprisonment, followed by five years of supervised

release. The court entered the judgment reflecting this sentence on January 13,

2012. Mr. Kirby filed a timely notice of appeal on January 26, 2012. On appeal

Mr. Kirby avers again that it is unconstitutional for him to “stand[] convicted . . .

of having possessed entirely within the bounds of a single State a firearm that

happened to have traveled in interstate commerce at some unknown prior time,

before Mr. Kirby’s possession of it.” Aplt. Opening Br. at 13.

                                          II

      We review a challenge to the constitutionality of a statute de novo. United

States v. Haney, 264 F.3d 1161, 1163–64 (10th Cir. 2001); see also United


      2
             Mr. Kirby admitted that “both the firearm and ammunition were
manufactured outside of . . . New Mexico and that they had to have previously
been shipped or transported in interstate commerce to be physically present and in
[his] possession on December 14, 2010 in . . . New Mexico.” R., Vol. I, at 24
(Conditional Plea Agreement, filed Aug. 30, 2011); see also Aplt. Opening Br. at
13.

                                         -3-
States v. Hampshire, 95 F.3d 999, 1001 (10th Cir. 1996).

      In Scarborough v. United States, the Supreme Court held that, in addition

to the other elements of the crime of being a felon in possession, the government

need only prove that the firearm possessed by the defendant had been, “at some

time, in interstate commerce.” 431 U.S. at 575. The government need not prove

anything more than this “minimal nexus.” Id.

      “Scarborough decided only a question of statutory interpretation about a

previous version of the felon-in-possession statute, but the decision assumed that

Congress could constitutionally regulate the possession of firearms solely because

they had previously moved across state lines.” Patton, 451 F.3d at 634 (holding

that because the defendant’s bulletproof vest had “moved across state lines at

some point in its existence, Congress may regulate it under Scarborough, even

though it does not fall within any of the three categories the Court now recognizes

for Commerce Clause authority”).

      “The constitutional understanding implicit in Scarborough—that Congress

may regulate any firearm that has ever traversed state lines—has been repeatedly

adopted for felon-in-possession statutes by this Court.” Id. (emphasis added).

Even Mr. Kirby concedes the impact of Scarborough. See Aplt. Opening Br. at

11–12. Furthermore, “[a]ny doctrinal inconsistency between Scarborough and the

Supreme Court’s more recent decisions is not for this Court to remedy.” Patton,

451 F.3d at 636. Mr. Kirby’s arguments regarding the reach of congressional

                                        -4-
authority under the Commerce Clause do not allow us to reject controlling

authority. See United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999).

                                        III

      Because we, like the district court, are bound by Supreme Court and Tenth

Circuit precedent upholding the constitutionality of 18 U.S.C. § 922(g)(1), we

AFFIRM the district court’s judgment.



                                      ENTERED FOR THE COURT


                                      Jerome A. Holmes
                                      Circuit Judge




                                       -5-
