On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: SLOVITER, Chief Judge, SAROKIN and ROSENN, Circuit Judges
Submitted Pursuant to Third Circuit LAR 34.1(a) May 20, 1996
Appellant Kenneth Gateward was convicted after a jury trial for possession of a firearm by a convicted felon under 18 U.S.C. 922(g)(1). Gateward challenges the constitutionality of that statute as beyond Congress' regulatory power under the Commerce Clause.
Gateward was indicted by a federal grand jury on a single count of possession of a firearm by a convicted felon. Such possession is prohibited under 18 U.S.C. Section(s) 922(g), which, in relevant part, makes it "unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition." At trial, the government presented testimony from Officer Joseph A. Caruthers of the Philadelphia Police Firearms Identification Unit. Officer Caruthers testified that the firearm confiscated from Gateward, an Astro .380 semi-automatic handgun, had been manufactured in Spain and imported by a Virginia distributor. See App. at 31a. In addition, Gateward stipulated that available testimony from an agent of the Bureau of Alcohol, Tobacco and Firearms would establish that the firearm had been shipped or transported in interstate commerce. See App. at 39a-40a. Gateward also stipulated that he had before been convicted of a felony. See App. at 40a.
A jury found Gateward guilty, and the district court sentenced him to 235 months imprisonment, 5 years supervised release, and a $50 special assessment. Gateward now appeals from his judgment of conviction, arguing that the felon firearm statute on which it is based is unconstitutional.
Gateward's constitutional argument consists wholly of reference to the Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995). There the Court held invalid the Gun-Free School Zones Act, 18 U.S.C. Section(s) 922(q), which prohibited firearm possession on school grounds or within 1000 feet thereof, as beyond Congress' commerce power, declaring that "[t]he Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." 115 S. Ct. at 1626. Gateward would have us view Section(s) 922(g) as the Lopez Court did Section(s) 922(q) -- as essentially noncommercial, without the requisite nexus with interstate commerce, and accordingly unconstitutional.
We note initially that Gateward's constitutional challenge is raised for the first time on appeal, and would therefore ordinarily be reviewable only for plain error. See United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1165 n. 12 (3d Cir. 1995). However, the Lopez decision on which Gateward's claim depends was issued only after he was found guilty (though before judgment was entered). Under these circumstances, we move directly to the substantive question presented.
The Supreme Court has twice addressed the interstate commerce aspect of 18 U.S.C. App. Section(s) 1202(a), predecessor statute to Section(s) 922(g)(1), which made any felon "who receives, possesses, or transports in commerce or affecting commerce . . . any firearm" guilty of ...