United States v. Smith

MEMORANDUM *

Smith appeals from his second trial for possession of a machine gun in 1997. Be *135 cause the parties are familiar with the facts, we only repeat them as necessary to explain our reasoning. We reverse Smith’s conviction and remand for retrial.

1. Smith repeats to us an argument he made in his prior appeal: that 18 U.S.C. § 922 (o)(1) exceeds Congress’ power under the commerce clause and is therefore unconstitutional. We rejected Smith’s argument in that appeal, citing our holding in a prior case, United States v. Rambo, 74 F.3d 948, 952 (9th Cir.1996), that “ ‘section 922(o) is a proper exercise of the authority granted to Congress under the Commerce Clause.’ ” United States v. Smith, 217 F.3d 746, 750 (9th Cir.2000) (“Smith I ”). Smith now asks us to reconsider Rambo in light of United States v. Morrison, 529 U.S. 598 , 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000), which held that parts of the Violence Against Women Act exceeded Congress’ power under the commerce clause. But Morrison was decided before Smith I. Smith I’s holding is both the law of the Ninth Circuit and the law of this case, and therefore forecloses Smith’s constitutional argument.

2. In Smith I, we…