The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40464
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-320-1
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
David Lee Brown appeals from his guilty-plea conviction for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Relying on our decision in United States v.
Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907
(2002), that the Second Amendment affords individuals a protected
right to bear arms, Brown argues that 18 U.S.C. § 922(g)(1) is
not narrowly tailored in light of the interplay of the Second
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-40464
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Amendment and the regulation of interstate commerce under the
Commerce Clause, is overly broad in its reach given the
legislative history of its intent, and unevenly burdens a
fundamental right in violation of equal protection by relying on
inconsistent state law definitions.
Because Brown did not make the above arguments in the
district court either at rearraignment or at sentencing, our
review is for plain error. See United States v. Munoz, 150 F.3d
401, 419 (5th Cir. 1998); United States v. Krout, 66 F.3d 1420,
1434 (5th Cir. 1995). We specifically recognized in Emerson that
“it is clear that felons, infants, and those of unsound mind may
be prohibited from possessing firearms.” Emerson, 270 F.3d at
261 (emphasis added). In light of this recognition, we conclude
that Brown has failed to demonstrate plain error. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc).
Relying on the Supreme Court’s decisions in Jones v. United
States, 529 U.S. 848 (2000), United States v. Morrison, 529 U.S.
598 (2000), and United States v. Lopez, 514 U.S. 549 (1995),
Brown also argues that 18 U.S.C. § 922(g)(1) is an
unconstitutional exercise of Congress’s Commerce Clause power
because the regulated activity does not substantially affect
interstate commerce. Alternatively, he argues that the factual
basis for his plea was insufficient because the evidence
established only that the firearm had traveled across state lines
No. 03-40464
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at some unspecified point in the past. Brown raises these
arguments solely to preserve them for possible Supreme Court
review. As he acknowledges, they are foreclosed by existing
Fifth Circuit precedent. See United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001).
AFFIRMED.