United States v. Goines, No. 20-3183 (10th Cir. 2021)

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Appellate Case: 20-3183 Document: 010110586197 Date Filed: 10/05/2021 UNITED STATES COURT OF APPEALS Page: 1 FILED United States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, October 5, 2021 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. EMANUEL E. GOINES, JR., No. 20-3183 (D.C. No. 6:19-CR-10103-JWB-1) (D. Kan.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges. _________________________________ Emanuel Goines presents two issues on appeal: Is 18 U.S.C. 922(g)(1)’s prohibition on a felon’s possession of a firearm unconstitutional? And, does prosecution under 18 U.S.C. § 922(g)(1) require the government to prove that the accused’s possession of the firearm contemporaneously affected commerce? Both questions have been answered in the negative by the Supreme Court’s decision in Scarborough v. United States, 431 U.S. 563 (1977) and precedents of this * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-3183 Document: 010110586197 Date Filed: 10/05/2021 Page: 2 court. See, e.g., United States v. Campbell, 603 F.3d 1218, 1220 n.1 (10th Cir. 2010); United States v. Urbano, 563 F.3d 1150, 1154 (10th Cir. 2009); United States v. Patton, 451 F.3d 615, 634–35 (10th Cir. 2006); United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). Goines’s appeal invites us to reexamine Scarborough and our precedents interpreting it based on the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and Gonzalez v. Raich, 545 U.S. 1 (2005). Among other reasons for a reexamination, Goines points to Justice Thomas’s dissent from the denial of certiorari in Alderman v. United States, 562 U.S. 1163, 131 S. Ct. 700 (2011). In that dissent, Justice Thomas, joined by Justice Scalia, stated that “Scarborough, as the lower courts have read it, cannot be reconciled with Lopez[,]” and that “[i]f the Lopez framework is to have any ongoing vitality, it is up to this Court to prevent it from being undermined by a 1977 precedent that does not squarely address the constitutional issue.” 131 S. Ct. at 702– 03. But several layers of precedent foreclose us from accepting Goines’s invitation. “Absent the Supreme Court overturning its own precedent or our own, we are bound by it.” Contreras ex rel. A.L. v. Doña Ana Cnty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1130 n.3 (10th Cir. 2020). This proposition becomes no less binding on our decisions if the reasoning of a prior Supreme Court decision is undermined by a subsequent decision. And the same holds true if two Justices express their personal views about a case in a dissent from the denial of certiorari. See Schell v. Chief Just. 2 Appellate Case: 20-3183 Document: 010110586197 Date Filed: 10/05/2021 Page: 3 and Justs. of Okla. Sup. Ct., --- F.4th ----, 2021 WL 3877404, at *1 (10th Cir. Aug. 25, 2021). As for our own precedents, absent an en banc decision from our circuit, three-judge panels are bound by previous panel decisions. United States v. Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020). Goines’s en banc petition was denied on March 23, 2021. So, here, our only task is to determine whether the district court’s decision was consistent with on-point Supreme Court and Tenth Circuit precedent. We find that it was and, exercising jurisdiction under 28 U.S.C. § 1291 and reviewing de novo, uphold the decision below. Affirmed. Entered for the Court Gregory A. Phillips Circuit Judge 3

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