UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES WILEY NICHOLS, DEFENDANT-APPELLANT

11th Cir. | 1997-10-15
No. 96-3450
Before HATCHETT, Chief Judge, EDMONDSON, Circuit Judge, and CLARK, Senior Circuit Judge.
124 F.3d 1265 Court of Appeals for the Eleventh Circuit (1997) Positive Treatment
Cited by 9 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: This is an appeal from defendant-appellant James Wiley Nichols’ conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

On appeal, Nichols raises four issues: whether the district court erred in accepting his guilty plea, whether this sentence was improperly enhanced, whether the district court erred in sentencing him to consecutive terms of imprisonment, and whether § 922(g)(1) is unconstitutional.

We reject these claims and affirm. Although the issue of whether a district court must advise a defendant during a guilty plea of his right to testify is one of first impression in this circuit, it appears that Nichols’ rights were protected.

The district court complied with the dictates of Fed. R.Crim.P. 11(e)(3).

It advised Nichols that he had the right “to a trial by jury ... to compel the attendance of witnesses, and to have those witnesses present to testify in your behalf at any trial” and that, by pleading guilty, he waived “any defense whatsoever” that he might have. These questions logically advised Nichols that, by pleading guilty, he could not testify in his own defense. Because Nichols possessed the firearm during escape status, and admitted that he possessed it to facilitate living in the wild during his escape, the district court’s determination that he possessed a firearm in connection with his escape was not clearly erroneous. It also appears that the district court did not plainly err in determining that Nichols merited consecutive sentences for his crimes as the record reflects that the court considered the appropriate factors enumerated in 18 U.S.C. § 3553(a).

Finally, Title 18 § 922(g)(1) makes it illegal for a felon to “possess in or affecting commerce, any firearm or ammunition.” Although the issue of whether the statute is unconstitutional because the term “commerce” is not defined as “interstate or foreign commerce” is one of first impression in this circuit, the Supreme Court has held that the phrase “in or affecting commerce” indicates a Congressional intent to assert its full Commerce Clause power. Further, this court has held that “ § 922(g)(1) is not an unconstitutional exercise of Congress’s power under the Commerce Clause----” Nichols’ conviction and sentence are, therefore, AFFIRMED. . Scarborough v. United States, 431 U.S. 563, 571, 97 S.Ct. 1963, 1967, 52 L.Ed.2d 582 (1977). . United States v. McAllister, 77 F. 3d 387, 389 (11th Cir.1996); United States v. Chisholm, 105 F. 3d 1357, 1358 (11th Cir.1997) (holding that McAllister remains binding precedent).

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Cited By

  • United States v. Wright, 392 F.3d 1269 (11th Cir. 2004)
    …peal to this Court, and it is within our discretion whether to address the issue. United States v. Dupree, 258 F. 3d 1258, 1259 (11th Cir.2001). In United States v. Nichols, we rejected the same argument and upheld the constitutionality of § 922(g). 124 F. 3d 1265 (11th Cir.1997). Moreover, we have consistently upheld the validity of this statute. See e.g., United States v. Dunn, 345 F. 3d 1285, 1297 (11th Cir.2003); United States v. Scott, 263 F. 3d 1270 (11th Cir.2001), cert. denied, 534 U.S. 1166, 122 S.C…
  • United States v. Cunningham, 161 F.3d 1343 (11th Cir. 1998)
    …felon to ‘possess in or affecting commerce[ ] any firearm or ammunition.’ This jurisdictional element defeats McAllis-ter’s facial challenge to the constitutionality of § 922(g)(1).”) (internal citation omitted). See also United States v. Nichols, 124 F. 3d 1265, 1266 & n. 2 (11th Cir.1997) (applying McAllister and noting that the decision remains good law) (per curiam), cert. denied, — U.S. -, 118 S.Ct. 1096, 140 L.Ed.2d 151 (1998). We follow McAllister and conclude that the jurisdictional element in sect…
  • United States v. Wright, 607 F.3d 708 (11th Cir. 2010)
    …of judicial proceedings.” Id. The government responds that Wright fails to demonstrate plain error because this court has already held that 18 U.S.C. § 922(g)(1) is not constitutionally invalid under the Commerce Clause. United States v. Nichols, 124 F. 3d 1265, 1266 (11th Cir.1997). We agree. Nichols rejected an identical constitutional challenge to § 922(g)(1) that the term “commerce” is not defined as “interstate or foreign commerce.” 124 F. 3d at 1266. In making that determination, we reviewed the S…

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