                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 23, 2005
                             No. 05-12340                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 04-00338-CR-JOF-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANTONIO DESHAWN GIPSON,
a.k.a. Antonio Lewis,
a.k.a. Daryl Gipson,
a.k.a. Antonio DShawn Gipson,
a.k.a. Grequencio Jolly,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________
                           (December 23, 2005)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Antonio Dasheen Gipson was charged by superseding

indictment with being a convicted felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g).1 He moved to dismiss the

indictment on the grounds that § 922(g) was unconstitutional on its face and as

applied. According to Gipson, his offense was non-economic and had no

substantial effect on commerce, and the fact that the firearm merely traveled in

interstate commerce before its possession was not sufficient to confer jurisdiction.

The court denied the motion.

       At trial,2 Atlanta Police Department Officers Ramone Rivers and David

Stribling testified that they were on patrol at the Jonesboro South Apartments when

they encountered Gipson in an alleyway. After Gipson saw the officers, he took a

black object from his waistband and threw it onto the roof. The officers heard the

clink as the object - later identified as a Glock 9mm gun - hit the roof and slid to

the edge. The officers could see the handle of the gun hanging off the roof.

       ATF agent Ralf Bicknese testified that he examined the gun and observed a

marking on the side of the gun which indicated “made in Austria, Glock, Inc.,

Smyrna, Georgia.” According to Bicknese, the gun had been manufactured in


       1
         At trial, the government did not place the ammunition into evidence. Therefore, only the
firearm charge was before the jury.
       2
           Gipson stipulated that he had a prior felony conviction.

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Austria and assembled in Georgia. Bicknese did not testify as an expert because

the information he provided was readily available to the general community and

did not require any special knowledge or skill.3

      The government rested its case-in-chief, and Gipson moved for judgment of

acquittal on the ground that there was insufficient evidence to show the gun

traveled in or affected interstate commerce. The court denied the motion,

explaining that there was evidence from which the jury could find the firearm had

been manufactured outside the state. Defense counsel presented several witnesses,

but Gipson did not testify. After Gipson rested and the government presented its

rebuttal, Gipson renewed his motion for judgment of acquittal, which the court

again denied. Defense counsel requested that the jury be instructed that it could

find Gipson guilty if the government proved beyond a reasonable doubt that the

defendant knowingly possessed the firearm in or substantially affecting interstate

commerce. The court denied the instruction, instead informing the jury that it

could find Gipson guilty if he knowingly possessed a firearm in or affecting

commerce. The court further defined ‘firearm’ to include the frame or receiver of a

firearm. The jury convicted Gipson, and the court sentenced him to 20 years




      3
          In charging the jury, however, the court referred to Bicknese as an expert witness.

                                                 3
imprisonment.4

      On appeal, Gipson raises two issues: (1) § 922(g) is unconstitutional on its

face and as applied to him because the statute lacks a sufficient jurisdictional

nexus, and (2) there was insufficient evidence to show that the firearm traveled in

interstate commerce.

      I. Constitutionality of § 922

      Gipson argues that the indictment failed to allege a sufficient jurisdictional

nexus because Congress exceeded its Commerce Clause power by regulating a

wholly intrastate action. Gipson acknowledges that intrastate activity can be

regulated, but only if the activity substantially affects interstate commerce, such as

where the possession is economic in nature. Gipson contends, however, there was

no substantial effect in the instant case because his possession was non-economic

and any link between his possession and interstate commerce was attenuated.

      We review constitutional issues de novo. United States v. Wright, 392 F.3d

1269, 1280 (11th Cir. 2004), cert. denied, 125 S.Ct. 1751 (2005).

      There is no merit to Gipson’s argument that § 922(g) is unconstitutional on

its face; this court repeatedly has upheld the constitutionality of § 922(g). Wright,

392 F.3d at 1280; United States v. Dunn, 345 F.3d 1285, 1297 (11th Cir. 2003);


      4
          Under § 924(e), Gipson faced a mandatory minimum sentence of 15 years imprisonment.


                                              4
United States v. Scott, 263 F.3d 1270 (11th Cir. 2001); United States v. Dupree,

258 F.3d 1258 (11th Cir. 2001).5 Therefore, we uphold the constitutionality of the

statute.

       Moreover, there is no merit to Gipson’s claim that the statute is

unconstitutional as applied to him. As this court has explained, all the statute

requires is that the government prove some “minimal nexus” to interstate

commerce. Scott, 263 F.3d at 1274; Dupree, 258 F.3d at 1260. For the reasons

discussed below, we conclude that the government established the required

minimal nexus.

       II. Sufficiency of the Evidence

       Gipson argues that there was insufficient evidence to establish that the gun

traveled in interstate commerce. He contends that the markings on the gun and the

testimony were misleading because the gun was manufactured in Austria but

assembled in Georgia.

       We review sufficiency of the evidence de novo, viewing the evidence in the

light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor. Wright, 392 F.3d at 1273.

This court will not overturn a conviction on the grounds of insufficient evidence


       5
           See also United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).


                                                 5
“unless no rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. In evaluating the argument on appeal, this

court must accept a jury’s inferences. Id.

       Under 18 U.S.C. § 922(g)(1), the government must prove (1) that Gipson

was a convicted felon; (2) that Gipson knew he was in possession of a firearm; and

(3) that the firearm affected or was in interstate commerce. Wright, 392 F.3d at

1280; United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). Here,

Gipson challenges only the third element - whether the gun affected or was in

interstate commerce.

       Generally, testimony that a firearm was manufactured outside the state and

found in the state is sufficient to establish that the firearm was in interstate

commerce. Scott, 263 F.3d at 1274. Here, an ATF agent testified that the

markings on the gun indicated that parts of the gun were manufactured in Austria

and assembled in Georgia. Under federal law, the definition of a firearm includes

the frame or receiver.6 18 U.S.C. § 921(a)(3)(C). Thus, testimony that the frame

was manufactured in Austria and then transported to Georgia where it was

assembled was sufficient to establish that the firearm traveled in interstate

commerce. United States v. Clay, 355 F.3d 1281, 1287 (11th Cir.), cert. denied,


       6
        Gipson concedes that the definition of a firearm includes the frame, which in the instant
case was manufactured outside Georgia. See 18 U.S.C. § 921(a)(3)(C).

                                               6
125 S.Ct. 626 (2004).

      Notably, although the markings on the firearm were somewhat confusing

because they indicated that the gun was “made in Austria, Glock, Inc., Smyrna,

Georgia,” the testimony clarified that parts of the firearm were made in Austria and

then shipped to Georgia. Therefore, there was sufficient evidence for the jury to

find that the firearm was in or affected interstate commerce.

      Because there is no merit to Gipson’s claims that § 922(g) is

unconstitutional on its face or as applied, and the evidence presented was sufficient

to support his conviction, we AFFIRM.




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