52 F.4th 988
5th Cir.2022Background
- Joshua Seekins, a previously convicted felon and homeless man, was convicted under the federal felon‑in‑possession statute for possessing two shotgun shells found in a dumpster.
- There was no record evidence that Seekins’s possession affected interstate commerce or that the specific shells had recently crossed state lines; only that the manufacturer of matching shells was located out of state.
- The panel decision affirmed the conviction under existing Fifth Circuit precedent (principally United States v. Rawls), which treats out‑of‑state manufacture/transport at any time as sufficient to invoke federal jurisdiction.
- Seekins petitioned for rehearing en banc, arguing Rawls and related precedents are constitutionally erroneous under the Commerce Clause.
- The court denied rehearing en banc (no majority to rehear); the denial produced a three‑judge dissent (Judge Ho, joined by Judges Smith and Engelhardt) urging reconsideration of circuit precedent as inconsistent with Lopez and federalism limits.
Issues
| Issue | United States' Argument | Seekins' Argument | Held |
|---|---|---|---|
| Whether possession of shells manufactured out‑of‑state satisfies Commerce Clause nexus for felon‑in‑possession | Out‑of‑state manufacture/transport places the shells in interstate commerce, satisfying jurisdiction | Possession is purely local; no substantial effect on interstate commerce and no proof these shells crossed state lines in relation to the offense | Circuit precedent (Rawls/Scarborough) sustains federal jurisdiction; conviction upheld and en banc rehearing denied |
| Whether Scarborough controls post‑Lopez challenges to felon‑in‑possession statutes | Scarborough permits relying on prior interstate transport to satisfy the statute | Scarborough was a statutory holding and is inconsistent with Lopez’s constitutional limits on the Commerce Clause | Fifth Circuit applied Scarborough via Rawls; dissent argued Scarborough should not control constitutional analysis |
| Whether Rawls’s rule (any prior interstate movement suffices) is consistent with Commerce Clause limits | Rawls correctly follows Supreme Court precedent and binds the circuit | Rawls effectively federalizes possession of virtually every tangible item and overextends commerce power | En banc majority declined to revisit Rawls; dissent urged rehearing to restore federalism limits |
| Whether the panel’s decision warranted en banc reconsideration of circuit precedent | Existing precedent is controlling; no en banc relief required | Precedent is premised on serious error and merits en banc correction to preserve enumerated‑powers federalism | Rehearing en banc denied (seven votes for rehearing; nine against); dissenters urged review |
Key Cases Cited
- United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) (upheld felon‑in‑possession conviction based on prior interstate movement/manufacture)
- Scarborough v. United States, 431 U.S. 563 (1977) (treated prior interstate transport as sufficient for felon‑in‑possession statute)
- United States v. Lopez, 514 U.S. 549 (1995) (recognized limits on Congress’s Commerce Clause power)
- Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (Commerce Clause must be read to avoid creating a general federal police power)
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (constitutional limits on legislative power and judicial duty to enforce them)
- United States v. Kuban, 94 F.3d 971 (5th Cir. 1996) (judicial criticism of applying Scarborough after Lopez)
- Alderman v. United States, 565 F.3d 641 (9th Cir. 2009) (dissent arguing Scarborough’s extension conflicts with Lopez)