Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Plaintiff-appellee, v. Robert W. Edwards, Defendant-appellant, 124 F.3d 205 (7th Cir. 1997)

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U.S. Court of Appeals for the Seventh Circuit - 124 F.3d 205 (7th Cir. 1997) Submitted Sept. 2, 1997. *Decided Sept. 4, 1997

Appeal from the United States District Court for the Eastern District of Wisconsin, No. 95 CR 82; Rudolph T. Randa, Judge.

Before FLAUM, EASTERBROOK and WOOD, Circuit Judges.


ORDER

We reversed Robert Edwards' conviction last year, concluding that Edwards should have been permitted to withdraw his guilty plea. United States v. Edwards, 90 F.3d 199 (7th Cir. 1996). On remand, Edwards entered into a new plea agreement, was sentenced and again appealed.

Edwards claims that under United States v. Lopez, 115 S. Ct. 1624 (1995), 18 U.S.C. § 922(g) (1) is unconstitutional in that it exceeds congressional power under the Commerce Clause. The argument is precluded by our opinion in United States v. Bell, 70 F.3d 495 (7th Cir. 1995) ( § 922(g) (1) immune from constitutional attack under Lopez decision).

Edwards also requested the district court to exercise its discretion and depart downward from the Guidelines based on his poor health under U.S.S.G. § 5H1.4. We lack the jurisdiction, however, to review the district court's conclusion that Edwards' physical condition falls short of the "extraordinary physical impairment" that would justify a departure. United States v. Green, 114 F.3d 613, 620 (7th Cir. 1997) (court lacks jurisdiction to review a district court's discretionary decision not to depart from the Guidelines as long as it is clear that the district court knows it has such discretion).

AFFIRMED as to the claim under 18 U.S.C. § 922(g) (1); DISMISSED as to the claim under U.S.S.G. § 5H1.4.

 *

This successive appeal was assigned to the panel that heard the previous appeal, see Operating Procedure 6(b), which is unanimously of the opinion that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f)