United States v. Rawls

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UNITED STATES of America, Plaintiff-Appellee, v. Kevin Glenn RAWLS, Defendant-Appellant.

No. 95-50861

United States Court of Appeals, Fifth Circuit.

June 17, 1996.

91 F.3d 240

Summary Calendar.

internal order and discipline and to maintain institutional security. “Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters”

441 U.S. at 547-48, 99 S.Ct. at 1878-79 (citations omitted); see also

Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 3231-32, 82 L.Ed.2d 438 (1983) (reaffirming the deferential standard of Wolfish).

When applying the Wolfish test, we must take, as a given, that the city‘s policy is based on a penological purpose and must ask whether the policy at issue is reasonably related to that end.

Hare, 74 F.3d at 646. In this case, the question is whether the city‘s policies are reasonably related to the goal of providing a safe detention center for female detainees. In other words, do the alleged deficiencies with the city‘s policies prove that those policies were arbitrary and capricious?

The custom at issue is broader than that which the majority describes. The majority is correct that it is a custom to have four guards—two of whom are women—and to split their duties into four shifts over a twenty-four-hour period. The policy also includes provisions to protect female detainees from some types of sexual molestation. Additionally, the city requires substantial background checks of its applicants.

The plaintiff has failed to show the existence of facts demonstrating that the city‘s custom was arbitrary and capricious. The city took precautions to protect the safety of female inmates and made a decision to staff its jails based on limited financial resources. There is no evidence demonstrating that, objectively, such a policy generally would fail to protect pretrial detainees. In fact, the evidence demonstrated that for ten years, the city had not received any complaints of sexual assaults. The city‘s choice may not have been perfect, but it was not unconstitutional. See

Wolfish, 441 U.S. at 542 n. 25, 99 S.Ct. at 1876 n. 25 (“Governmental action does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional.“).

“Courts must be mindful that these injuries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court‘s idea of how best to operate a detention facility.”

Id. at 539, 99 S.Ct. at 1874. I respectfully dissent.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

ORDER

July 17, 1996

BY THE COURT:

A majority of the judges in active service having determined, on the court‘s own motion, to rehear this case en banc,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

Kevin Glenn Rawls, Lewisburg, PA, pro se.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Joan E.T. Stearns, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Kenneth Glenn Rawls is a federal prisoner serving a sentence imposed following conviction by a jury for possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (count one), and acquisition of a firearm by knowingly making a false written statement, in violation of § 922(a)(6) (count two). Seeking relief through 28 U.S.C. § 2255, Rawls filed a motion to vacate, set aside, or correct his sentence, which motion was denied by the district court. For the reasons set forth below, we affirm.

I

FACTS AND PROCEEDINGS

When Rawls was convicted on counts one and two, the government sought an enhanced sentence under 18 U.S.C. § 924(e)(1), on the basis of Rawls’ two burglary convictions grounded in different occurrences on the same date, and a conviction for robbery committed three years thereafter. As a result, Rawls was sentenced to an enhanced sentence totaling 188 months of imprisonment, a total period of supervised release of five years, a $1500 fine, and a $100 special assessment. In his unsuccessful direct appeal to this court, Rawls argued that (1) the district court abused its discretion in admitting purported hearsay testimony during the trial; (2) the evidence was insufficient to prove that he knowingly made a false statement in connection with his acquisition of the firearm; (3) his constitutional rights were violated by the court‘s use of the preponderance-of-the-evidence standard for the government‘s burden of proof for enhancement of his sentence under § 924(e)(1); and (4) the enhancement under that section was improper because the two burglaries, committed on the same date, could not be deemed “separate occurrences.”

In his § 2255 motion, Rawls insists that § 922(g)(1) is unconstitutional for exceeding the authority of Congress under the Commerce Clause, and is unconstitutional as applied to him under the facts of this case. He also urges that he had ineffective assistance of counsel and that he should receive a three level downward adjustment for acceptance of responsibility. For good measure, Rawls urges that his two prior burglary offenses should have been counted as only one offense under the authority of U.S.S.G. § 4A1.2, that pre-indictment delay violated his due process rights, and that his Fourth Amendment rights were violated. The district court denied the § 2255 motion and this appeal ensued.

II

ANALYSIS

Relying in large part on

United States v. Lopez, — U.S. —, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Rawls argues that Congress exceeded its authority to regulate commerce when it enacted § 922(g)(1). That section, however, has been held to be constitutional under the Commerce Clause.

United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989), cert. denied,

497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In

Lopez, the Supreme Court affirmed our holding that 18 U.S.C. § 922(q), which purported to criminalize possession of a firearm within a specified proximity to a school, exceeded the power of Congress to legislate under the Commerce Clause because “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”

Lopez, — U.S. at —, —, 115 S.Ct. at 1626, 1634. Central to the Court‘s holding in

Lopez was the fact that § 922(q) contained “no jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce.”

Id. at —, 115 S.Ct. at 1631.

We have not, since

Lopez, considered its effect on the constitutionality of § 922(g)(1).¹ Other circuits addressing the issue since

Lopez have concluded that the Court‘s reasons for holding § 922(q) unconstitutional are inapplicable to § 922(g)(1). See

United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995);

United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995);

United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995), cert. denied,

— U.S. —, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996);

United States v. Hanna, 55 F.3d 1456, 1462 & n. 2 (9th Cir.1995);

United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied,

— U.S. —, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995);

United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied,

— U.S. —, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Today we join all other circuits that have considered the issue post-

Lopez and hold that neither the holding in

Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).

Rawls also argues that § 922(g)(1) is unconstitutional as applied to him. More specifically, he points out that when he was arrested no interstate activity was occurring. He contends that, as such, he was not involved in an enterprise engaged in interstate or foreign commerce, so his possession of the firearm “had no connection to channels or instrumentalities of interstate commerce.” This argument too is unavailing.

Section 922(g)(1) makes it unlawful for a person who has been convicted of a felony “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The “in or affecting commerce” element can be satisfied if the firearm possessed by a convicted felon had previously traveled in interstate commerce.

United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.1993), cert. denied,

— U.S. —, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993) (“[A] convicted felon‘s possession of a firearm having a past connection to interstate commerce violates § 922(g).“);

Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977) (concluding that Congress did not intend to require any more than the minimal nexus that, at some time, the firearm had been in interstate commerce). As we noted on direct appeal, an ATF weapons expert testified at Rawls’ trial that the revolver he possessed was manufactured in Massachusetts, so that the revolver‘s presence in Texas had to result from transport in interstate commerce. This evidence is sufficient to establish a past connection between the firearm and interstate commerce. See

Fitzhugh, 984 F.2d at 146. We hold that § 922(g)(1) is not unconstitutional as applied to Rawls.

As for the other issues urged by Rawls in this appeal, it suffices that we have reviewed the record and considered the legal arguments raised by the parties in their briefs to this court, and are satisfied that no reversible error has been committed, and that Rawls is entitled to no relief, in connection with his claims regarding the counting of prior crimes and ineffective assistance of counsel. The remaining claims asserted by Rawls in his § 2255 motion have not been raised on appeal and are thus deemed abandoned.

Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied,

474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985). For the foregoing reasons, the rulings of the district court culminating in the denial of Rawls’ § 2255 motion are, in all respects,

AFFIRMED.

GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA, Circuit Judges, join, specially concurring:

I concur, with these added observations.¹ If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before the charged possessor was even born, fortuitously traveled in interstate commerce. It is also difficult to understand how a statute construed never to require any but such a per se nexus could “ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”

United States v. Lopez, — U.S. —, —, 115 S.Ct. 1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in

Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g), requires us to affirm denial of relief here. While

Scarborough addresses only questions of statutory construction, and does not expressly purport to resolve any constitutional issue, the language of the opinion and the affirmance of the conviction there carry a strong enough implication of constitutionality to now bind us, as an inferior court, on that issue in this essentially indistinguishable case, whether or not the Supreme Court will ultimately regard it as a controlling holding in that particular respect.² Nothing in

Lopez expressly purports to question

Scarborough, and indeed it is not even cited in

Lopez. Moreover, section 922(g) at issue here, unlike section 922(q) at issue in

Lopez, does expressly require some nexus to interstate commerce, thus importantly reflecting that Congress was exercising that delegated power and not merely functioning as if it were the legislative authority of a unitary state.

Lopez refused to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States” and, though recognizing that “[t]he broad language” in some of its prior opinions “has suggested the possibility of additional expansion,” nevertheless “decline[d] here to proceed any further.”

Id. at —, 115 S.Ct. at 1634. It is not for us to say that following what seems to be implicit in

Scarborough is to proceed “further” down the road closed by

Lopez. In any event, this panel is bound by our post-

Lopez decision in

United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), holding section 922(g)(1) constitutional.

Notes

1

In

United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), we held, without discussion, that the defendant‘s assertion that § 922(g)(1) was unconstitutional did not constitute reversible error. As neither party has requested oral argument, this special concurrence is consistent with summary calendar disposition.

2

See, for example, the following from

Scarborough where the Court observed: “... we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.”

Id. at 575, 97 S.Ct. at 1969 (footnote omitted).

Case Details

Case Name: United States v. Rawls

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 17, 1996

Citation: 85 F.3d 240

Docket Number: 95-50861

Court Abbreviation: 5th Cir.