Beruflich Dokumente
Kultur Dokumente
3d 434
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Defendant, proceeding pro se, appeals the district court's denial of his motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255. We affirm.
Under the circumstances of this case, where defendant raised a legal issue
decided by the district court to be meritless, we consider defendant's Commerce
Cause argument on its merits rather than remand for further proceedings.
Defendant continues to argue on appeal that the district court lacked subject
matter jurisdiction over his criminal case because his activities were beyond the
power of Congress to regulate since the activities had no substantial effect on
interstate commerce as required by the Commerce Clause of the Constitution.
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II
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The judgment of the United States District Court for the District of Utah is
AFFIRMED.4 In accordance with Fed. R.App. P. 35(b), defendant's suggestion
for en banc consideration of this appeal was circulated to all judges of the court
in regular active service. No member of the panel or the court has requested a
poll. Therefore, defendant's suggestion for en banc consideration is DENIED.
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
Judge Seth died March 27, 1996. However, he had fully considered the matter
and voted prior to his death
*** Honorable Clarence A. Brimmer, District Judge, United States District Court
for the District of Wyoming, sitting by designation
3
Defendant also alleged a violation of the Double Jeopardy Clause. He does not
continue to assert this allegation on appeal
Defendant has not challenged the facts underlying his 924(c)(1) conviction.
Thus, we do not now address the applicability of the Supreme Court's recent
decision in Bailey v. United States, 116 S.Ct. 501 (1995)(defining use of a
firearm). The disposition of this appeal, however, is without prejudice to a
future 2255 motion based on the alleged applicability of Bailey