                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-13412         ELEVENTH CIRCUIT
                            Non-Argument Calendar        FEB 13, 2012
                          ________________________        JOHN LEY
                                                           CLERK
                     D.C. Docket No. 9:11-cr-80027-KAM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JIMMY MORRIS,

                                                             Defendant-Appellant.

                         __________________________

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

                               (February 13, 2012)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Appellant Jimmy Morris appeals from his conviction for being a convicted

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Morris argues that his conviction under § 922(g) is unconstitutional both facially

and as-applied because the possession of a firearm by a convicted felon does not

substantially affect interstate commerce, and because his own possession did not

substantially affect interstate commerce. Specifically, Morris argues that

§ 922(g)’s phrase “in or affecting commerce” does not limit the definition of

commerce to “interstate or foreign commerce,” and that § 922(g) does not require

that the possession of the firearm by a convicted felon “substantially” affect

interstate commerce. The government argues that Morris waived his challenge to

the constitutionality of § 922(g) by pleading guilty, and that his challenge is

otherwise foreclosed by our precedent.

      Although we generally review challenges to the constitutionality of a statute

de novo, we review for plain error where, as here, the challenge is raised for the

first time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

“Plain error occurs if (1) there was error, (2) that was plain, (3) that affected the

defendant’s substantial rights, and (4) that seriously affected the fairness, integrity,

or public reputation of judicial proceedings.” Id. (internal quotation marks

omitted). “A plain error is an error that is obvious and is clear under current law.”

United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (internal quotation

marks omitted).


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      A guilty plea generally waives all non-jurisdictional challenges to a

conviction. United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008). Issues

not raised in an appellant’s initial brief are deemed abandoned. United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

      In Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d

582 (1977), the Supreme Court examined a former statute, 18 U.S.C. § 1202(a), that

prohibited convicted felons from possessing firearms in or affecting commerce, and

held that proof that the possessed firearm previously had traveled in interstate

commerce was sufficient to satisfy the required “minimal nexus” between the

convicted felon’s possession and commerce. Id. at 564, 577-78, 97 S. Ct. at 1964,

1970. In United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626

(1995), the Supreme Court considered whether a federal statute banning the

possession of firearms in school zones exceeded Congress’s authority to regulate

interstate commerce. Id. at 551, 115 S. Ct. at 1626. Noting that Congress’s

commerce power included the power to regulate activities that had a substantial

effect on interstate commerce, and that the statute at issue contained no

jurisdictional element to “ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce,” the Supreme Court held that

the statute exceeded Congress’s Commerce Clause authority. Id. at 558-59, 561,


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567-68, 115 S. Ct. at 1629-31, 1634. The Supreme Court contrasted the statute at

issue in Lopez with the former 18 U.S.C. § 1202(a), noting that, unlike the statute at

issue in Lopez, § 1202(a) had an express jurisdictional element limiting its reach to

firearm possessions that had an explicit nexus with interstate commerce. Id.

at 561-62, 115 S.Ct. at 1631. Finally, in United States v. Morrison, 529 U.S. 598,

120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), the Supreme Court held that Congress

lacked the authority to regulate “noneconomic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617, 120 S.

Ct. at 1754. The Court noted that the statute at issue, like the statute at issue in

Lopez, contained “no jurisdictional element establishing that the federal cause of

action is in pursuance of Congress’ power to regulate interstate commerce.” Id.

at 613, 129 S. Ct. at 1751.

      We previously have rejected an appellant’s claim that, in light of Lopez,

§ 922(g)(1) was unconstitutional because it exceeded Congress’s Commerce

Clause power. United States v. McAllister, 77 F.3d 387, 388 (11th Cir. 1996). We

held that the “jurisdictional element” in § 922(g), requiring that the felon’s

possession of any firearm or ammunition be “in or affecting commerce,”

distinguished § 922(g) from the statute at issue in Lopez and defeated the

appellant’s facial challenge to its constitutionality. Id. at 389-90. We also


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rejected the appellant’s argument that the statute was unconstitutional as applied

to him because Lopez had abrogated the “minimal nexus” requirement that the

Supreme Court had established in Scarborough. Id. at 390. Noting that

“[n]othing in Lopez suggests that the ‘minimal nexus’ test should be changed,” we

held that the statute applied to the appellant because the government had

demonstrated that the firearm he had possessed previously had traveled in

interstate commerce. Id.

      Subsequently, we rejected another appellant’s argument that our reasoning

in McAllister had been abrogated by the Supreme Court’s decision in Morrison.

See United States v. Scott, 263 F.3d 1270 (11th Cir. 2001). We held that, even

after Morrison, the jurisdictional element of § 922(g)(1) continued to immunize

the statute from facial constitutional attack. Scott, 263 F.3d at 1273. Finally, we

have rejected the argument that § 922(g)(1) is constitutionally invalid because the

term “commerce” is not defined as “interstate or foreign commerce.” United

States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997). We held that “the phrase

‘in or affecting commerce’ indicates a Congressional intent to assert its full

Commerce Clause power.” Id.

      We conclude that Morris’s claim is not barred by his guilty plea because it

necessarily implicates the district court’s subject-matter jurisdiction. If, as Morris


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claims, § 922(g)(1) is unconstitutional, either facially or as applied in his case,

then the district court would lack jurisdiction to convict and sentence him for

violating that statute. However, because Morris’s challenges to the

constitutionality of § 922(g)(1) are foreclosed by our precedent, he has not shown

any error, much less plain error, with respect to his conviction.

      Accordingly, we affirm Morris’s conviction.

      AFFIRMED.




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