                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     SEP 13 2001
                            FOR THE TENTH CIRCUIT
                                                                 PATRICK FISHER
                                                                          Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-6089
                                                    (D.C. No. 00-CR-109-C)
    MICHAEL WILLIAM GARDNER,                              (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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. 36.3.
       Defendant Michael William Gardner appeals the district court’s denial of

his motion to dismiss the second count of the indictment because it was premised

on an unconstitutional statute. We affirm.

       Defendant, a convicted felon, rented a motel room in which police found

a handgun, displayed openly and within defendant’s control. Defendant was

charged with, inter alia, possession of a firearm by a felon in violation of

18 U.S.C. § 922(g)(1). Defendant moved to dismiss this count of the indictment,

arguing that the possession statute was beyond Congress’ power to enact under

the Commerce Clause because mere possession of a firearm does not have

a “substantial effect” on interstate commerce, citing   United States v. Lopez ,

514 U.S. 549 (1995), United States v. Morrison , 529 U.S. 598 (2000), and

Jones v. United States , 529 U.S. 848 (2000).

       The district court denied defendant’s motion, holding that the statute is

constitutional because its jurisdictional element requires that the firearm be

possessed in and affecting commerce, and that      Lopez does not require more than

a de minimis effect on interstate commerce in individual cases. Defendant then

pled guilty to constructively possessing the weapon “in and affecting interstate

commerce” because the firearm had crossed state lines to reach Oklahoma.           See

Aplt. App. at 102, 119; Aplee. Supp. App. at 163. As part of the plea agreement,

defendant agreed to “waive[] his right to appeal or collaterally challenge [his]


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guilty plea and any other aspect of his conviction, except the court’s pretrial

disposition of . . . Defendant’s Motion to Dismiss Count 2.” Aplee. Supp. App.

at 166.

       In this appeal, defendant raises two constitutional challenges to 18 U.S.C.

§ 922(g)(1): a facial challenge regarding Congress’ power to enact the statute

under the Commerce Clause, and an “as applied” challenge based on its

application to his constructive possession of the firearm. Defendant concedes that

his facial challenge is foreclosed by our decision in   United States v. Dorris ,

236 F.3d 582 (10th Cir. 2000),    cert. denied , 121 S. Ct. 1635 (2001), which,

indeed, resolved the exact challenge raised by defendant.     See id. at 585-86

(holding that Lopez , Morrison , and Jones did not implicate prior cases upholding

§ 922(g)(1) as a valid exercise of congressional power under the Commerce

Clause, and explaining that the statute is valid because it regulates the possession

of goods moved through interstate commerce and because its jurisdictional

element limits the statute to firearms that are the subject of interstate trade).

       Defendant’s challenge to the statute “as applied” is waived by his plea

agreement. In United States v. Dwyer , 245 F.3d 1168 (10th Cir. 2001), we held

on almost identical facts that the defendant’s admission that he constructively

possessed a firearm “in and affecting interstate commerce” waived any

constitutional challenge as to whether his possession was sufficiently connected


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to interstate commerce.    See id. at 1170. Because here defendant made the same

admission and raises the same challenge,    Dwyer forecloses his argument.

       Defendant attempts to distinguish   Dwyer by arguing that in this case the

plea agreement preserved for review the district court’s resolution of his

constitutional challenge to the statute. However, defendant’s motion to dismiss

only made a facial challenge to the statute, and did not argue that the statute was

unconstitutional as applied.   See Aplt. App. at 16-32. Because the “as applied”

challenge was not raised in his motion to the district court, it is now precluded

by his waiver of the right to appeal all other issues in the plea agreement.

See United States v. Elliott , No. 00-5010, 2001 WL 991955, at *1-*2 (10th Cir.

Aug. 30, 2001) (holding the court will enforce a defendant’s knowing and

voluntary waiver of the right to appeal his conviction in a plea agreement).

       The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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