                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        August 20, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 07-3068
          v.                                              (D. Kansas)
 THOM AS L. M cNEILL, A/K/A                     (D.C. No. 06-CR-10205-JTM )
 THOM AS L. M cNEIL,

               Defendant - Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Thomas M cNeill conditionally pleaded guilty to being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals his

conviction, arguing that Congress exceeded its Commerce Clause authority in

enacting § 922(g)(1). W e exercise jurisdiction pursuant to 28 U.S.C. § 1291, and




      *
         This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
affirm.

                                         I.

      On September 19, 2006, M r. M cNeill was charged in a two-count

indictment with being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), and possession of a firearm with an obliterated serial number, in

violation of 18 U.S.C. § 922(k). He filed a pre-trial motion to dismiss the

indictment on the grounds that these sections of Title 18 violate the Commerce

Clause. The district court denied his motion.

      On November 29, 2006, M r. M cNeill entered a conditional guilty plea to

being a felon in possession of a firearm in violation of § 922(g)(1). In the

agreement, he stipulated that he was previously convicted of felony aggravated

battery and that he possessed, on M arch 24, 2006, a handgun that traveled in

interstate commerce from Florida, its place of manufacture, to K ansas. In

exchange for M r. M cNeill’s guilty plea, the government dropped the § 922(k)

charge. As part of the plea agreement, M r. M cNeill reserved the right to

challenge the constitutionality of § 922(g)(1).

      O n February 22, 2007, the district court sentenced M r. M cNeill at the low -

end of the advisory Guidelines range to 84 months’ imprisonment to be followed

by 3 years’ supervised release. This timely appeal followed.

                                         II.

      On appeal, M r. M cNeill renews his Commerce Clause challenge to §

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922(g)(1). Specifically, he contends that Congress lacks the authority to

criminalize the possession of a firearm when the firearm’s only connection with

interstate commerce was that it crossed state lines at some point in the past.

      W e have repeatedly rejected similar challenges to § 922(g)(1) under “[t]he

constitutional understanding implicit in Scarborough [v. United States, 431 U.S.

563 (1977)] – that Congress may regulate any firearm that has ever traversed state

lines.” United States v. Patton, 451 F.3d 615, 634 (10th Cir. 2006) (emphasis

added). See, e.g., United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000);

United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996); United States

v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995). M r. M cNeill recognizes as much

but vigorously maintains that Scarborough (and consequently our precedent)

cannot be harmonized with the Supreme Court’s more recent decisions in United

States v. Lopez, 514 U.S. 549 (1995); United States v. M orrison, 529 U.S. 598

(2000); and Gonzales v. Raich, 545 U.S. 1 (2005).

      W e must disagree. As we recently made clear, Scarborough survived these

recent Supreme Court decisions and “we are bound by [it].” Patton, 451 F.3d at

636. M oreover, “[e]ven if we were not persuaded that Scarborough remains the

case which directly controls, we would still be compelled to follow its reasoning

by prior decisions of this Court, which have continued to adhere to

Scarborough despite Lopez and subsequent cases.” Id. (internal quotation marks

and citations omitted). Thus, at this juncture, if § 922(g)(1) exceeds Congress’s

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Commerce Clause powers, it is for the Supreme Court to so hold.

      In the alternative, M r. M cNeill invites us to apply the “constitutional

doubt” doctrine of Jones v. United States, 529 U.S. 848 (2000), whereby a statute

susceptible to two constructions should be interpreted to avoid “grave and

doubtful constitutional questions,” to § 922(g)(1). 529 U.S. at 239 (internal

quotation marks omitted). He suggests that we could apply this doctrine “to

require a greater ‘nexus’ to, or ‘effect’ on, interstate commerce than the mere fact

that the firearm was manufactured outside of the state of possession in order to

sustain a conviction under . . . § 922(g).” Aplt’s Br. at 21.

      This argument is meritless as M r. M cNeill, at bottom, misapprehends the

doctrine of constitutional doubt: no doubts regarding the construction of a statute

exist when prior precedent directly upholds that construction. See United States

v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc) (“The doctrine of

constitutional doubt does not trump the principle of stare decisis. If a precedent

of the Supreme Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to the Court the prerogative of

overruling its own decisions.” (alterations and internal quotation marks omitted)).




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                                III.

For the foregoing reasons, M r. M cNeill’s conviction is AFFIRM ED.


                                            Entered for the Court,


                                            Robert H. Henry
                                            Circuit Judge




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