                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 2, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 07-3225
 v.                                            (D.C. No. 07-CR-10003-MLB)
                                                         (D. Kan.)
 GENE A. GORDON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Defendant-appellant Gene A. Gordon entered a conditional guilty plea to

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

His plea agreement preserved his right to appeal one issue: Whether § 922(g)(1)

is unconstitutional because it is not supported by the Commerce Clause. We have

jurisdiction under 28 U.S.C. § 1291, and affirm.



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The 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. 32.1.
      Title 18, section 922(g)(1) of the United States Code criminalizes the

possession of a firearm “which has been shipped or transported in interstate or

foreign commerce” by anyone convicted of a crime punishable by more than one

year’s imprisonment. Gordon admitted to being a felon and possessing a Beretta

handgun. In addition, because Beretta does not manufacture weapons in Kansas,

Gordon acknowledged that the government could easily prove that the weapon

had been transported in interstate commerce.

      On appeal, Gordon argues that the felon-in-possession statute violates the

Commerce Clause. 1 He contends that the mere fact that the handgun was

transported across state lines provides an insufficient nexus to interstate

commerce when his own possession occurred entirely within the State of Kansas.

He relies primarily on United States v. Lopez, 514 U.S. 549 (1995), and United

States v. Morrison, 529 U.S. 598 (2000). See Lopez, 514 U.S. at 651 (holding

that a federal statute criminalizing firearm possession in school zones was not

supported by the Commerce Clause because it lacked an intrastate commerce

element); Morrison, 529 U.S. at 617-18 (rejecting an argument that “Congress

may regulate noneconomic, violent criminal conduct based solely on that

conduct’s aggregate effect on interstate commerce”).




      1
       Gordon states that he challenges the constitutionality of § 922(g) to
preserve the issue for further review.

                                         -2-
      Long before these cases, in Scarborough v. United States, 431 U.S. 563

(1977), the Supreme Court upheld a felon-in-possession statute that required no

“more than the minimal nexus that the firearm have been, at some time, in

interstate commerce.” Id. at 575. Even after Lopez and Morrison, “[t]he

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.” United States v. Patton, 451 F.3d

615, 634 (10th Cir. 2006); see also United States v. Dorris, 236 F.3d 582, 584-86

(10th Cir. 2000); United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir.

2000); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995). We are bound

by these prior decisions.

      Gordon argues that even if we are less than persuaded that § 922(g) violates

the Commerce Clause, we should apply the “constitutional doubt” doctrine of

Jones v. United States, 529 U.S. 848 (2000). Jones held that when a statute is

susceptible to two constructions—one clearly constitutional and another raising

grave constitutional questions—courts should adopt the clearly constitutional

reading. Id. at 857. We disagree that the natural construction of § 922(g), which

criminalizes possession of a firearm that has at any time in the past crossed state

lines, creates any constitutional doubt. See United States v. McNeill, 239 F.

App’x 449, 450-51 (10th Cir. Aug. 20, 2007) (unpublished) (citing United States

v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc)) (“[N]o doubts regarding

                                         -3-
the construction of a statute exist when prior precedent directly upholds that

construction.”).

      AFFIRMED.




                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                        -4-
