United States Court of Appeals
Fifth Circuit
F I L E D
July 24, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
________________________
No. 02-20972
________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TONY RAY WASHINGTON
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before WIENER and CLEMENT, Circuit Judges, and LITTLE*, District Judge.
LITTLE, District Judge:
Tony Washington was convicted at a bench trial on stipulated facts of being a
felon in possession of a firearm. Washington claims the district court erred with respect
to the following issues: (1) holding that exigent circumstances justified the police
officers’ no-knock entry; (2) denying a sentence reduction for acceptance of
responsibility; (3) enhancing Washington’s sentence for possessing a firearm in
*
District Judge of the Western District of Louisiana, sitting by designation.
connection with a felony offense; (4) and concluding that the evidence sufficiently
proved that the weapons traveled in or affected interstate commerce as necessary for
a conviction. For the following reasons, we AFFIRM in part and REVERSE and REMAND
in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 7 November 2001, the government charged appellant Tony Ray Washington
with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924
(a)(2). Washington proceeded to a bench trial on stipulated evidence after losing his
motion to dismiss and motion to suppress the evidence. The district judge found him
guilty of the one count indictment. On 22 August 2003, the district court sentenced
Washington to sixty-three months in prison, three years supervised release, a fine of
$1000 and a special assessment of $100. Washington timely appealed.
On 20 March 2001, Officer Goines of the Houston Police Department and an
informant conducted an undercover drug purchase at 2420 ½ Pierce in Houston, Texas.
The informant told Goines that Darnell Johnson sold codeine from a room at a halfway
house located at that address. The officers were told that the rooms measured
approximately twenty feet by twenty feet with windows but no kitchen or bathroom.
Washington contends that the rooms lack bathrooms, sinks or any other kind of
plumbing. In addition, Washington states that all the windows in the room at issue face
the front of the building.
The informant purchased codeine from room number 9 at the halfway house. The
codeine was in liquid form packed in a baby food jar. The informant told Goines that he
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observed multiple drugs and at least one firearm in the room. The informant also noted
that Johnson always carried a firearm on his person. Based on this information, on 21
March 2001, Goines, along with four other Houston Police officers, executed a search
warrant for the room and an arrest warrant for Johnson. At approximately 3:00 p.m., the
officers forced open the main door to the building. After climbing the stairs, Goines
yelled “Houston Police” and opened the door to the room with a battering ram. The
officers did not knock on the door prior to using the battering ram. Upon entry into the
room, the officers found Washington lying in bed with two firearms within his reach.
The police arrested Washington without incident. A subsequent search of the room
revealed five firearms and a substance later determined to be cocaine. Upon arrest,
Washington admitted he owned the firearms. All the firearms were manufactured
outside of Texas and one was reported stolen. During the search, the officers did not
recover any codeine or apprehend Johnson.
Washington was subsequently charged with being a felon in possession of a
firearm.1 Washington moved to dismiss the indictment arguing that a conviction
constitutionally required more proof than merely showing that at some point the firearm
traveled across state lines. Washington also moved to suppress the evidence arguing
that the “no-knock” entry violated the Fourth Amendment. Washington was
unsuccessful in both motions. Washington waived his right to a jury and proceeded to
a bench trial based on written stipulation. On 13 May 2002, the district court convicted
Washington for knowingly and unlawfully possessing a firearm after having been
Washington’s prior conviction was for unauthorized use of a motor vehicle.
1
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convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The United States Probation Office (“Probation Office”) prepared a pre-sentence
report (“PSR”) which applied the United States Sentencing Guidelines (“USSG” or
“Guidelines”). The amended PSR showed a base offense level of fourteen.2 The
Probation Office raised the base two levels because of the number of firearms [USSG
§ 2K2.1(b)(1)(A)] and raised it two more levels because one of the firearms was reported
stolen [USSG § 2K2.1(b)(4)]. Four more levels were added as the weapons were used in
connection with possession of a controlled substance [USSG § 2K2.1(b)(5)]. Finally, the
Probation Office suggested a three level reduction for acceptance of responsibility. The
PSR calculated Washington’s total offense level as nineteen and his criminal history
category as IV. The PSR reflected a guideline range of imprisonment of forty-six to fifty-
seven months.
The government objected to the PSR arguing that Washington deserved only a
two point reduction for acceptance of responsibility since he did not notify his intention
to plead guilty in a timely manner. Conversely, Washington claimed that he was
entitled to a three point reduction for acceptance of responsibility. In addition,
Washington objected to the four point increase under § 2K2.1(b)(5). The district
court denied sua sponte any credit for acceptance of responsibility. The court
determined the offense level to be twenty-two with a criminal history category of IV.
The court calculated Washington’s sentencing range as between sixty-three to seventy-
2
Originally, pursuant to USSG § 2k2.1(a)(4)(A), the PSR stated a base level of twenty
due to Washington’s prior conviction. The Probation Office later reduced this level to fourteen
being guided by United States v. Charles, 301 F.3d 309 (5th Cir.2001), which held that
unauthorized use of a motor vehicle was not a crime of violence.
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eight months. The court sentenced Washington to a term of sixty-three months.
Washington subsequently filed the appeal presently before this court.
II. DISCUSSION
This appeal involves the following four issues: (1) whether the district court erred
in concluding that exigent circumstances justified the police officers’ no-knock entry and
thereby denying Washington’s motion to suppress; (2) whether the district court erred
by denying a sentencing reduction for acceptance of responsibility; (3) whether the
district court erred by enhancing Washington’s offense level pursuant to § 2K2.1(b)(5)
for possessing a firearm in connection with another felony offense; and (4) whether the
evidence that the recovered firearms were manufactured in another state sufficiently
proved that the weapons traveled in or affected interstate commerce as necessary for
Washington’s conviction. We discuss each issue in turn.
A. Motion to Suppress
1. Standard of Review
This court reviews findings of fact on a motion to suppress under a clearly
erroneous standard and reviews the district court’s conclusions of law de novo. See
United States v. Singh, 261 F.3d 530, 535 (5th Cir.2001). The presence of exigent
circumstances is a finding of fact reviewed for clear error. United States v. Jones, 239
F.3d 716, 719 (5th Cir.2001). Additionally, this court views the facts in the light most
favorable to the prevailing party. United States v. Howard, 106 F.3d 70, 73 (5th
Cir.1997)(citations omitted).
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2. Analysis
The Fourth Amendment provides in relevant part that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated,” U.S. Const. amend. IV. The Supreme
Court has stated that the “Fourth Amendment incorporates the common law
requirement that police officers entering a dwelling must knock on the door and
announce their identity and purpose before attempting forcible entry.” Richards v.
Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 1417, 137 L.Ed.2d 615 (1997) (citing Wilson
v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)).3 This requirement is
tempered by “countervailing law enforcement interests.” Id. The Court recognized that
the “knock-and-announce requirement could give way ‘under circumstances presenting
a threat of physical violence,’ or ‘where police officers have reason to believe that
evidence would likely be destroyed if advance notice were given.’” Id. at 391, 117 S.Ct.
at 1420 (quoting Wilson, 514 U.S. at 936, 115 S.Ct. at 1919).
The Supreme Court established the following standard for evaluating a no-knock
entry: “the police must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile, or that it
would inhibit the effective investigation of the crime by, for example, allowing the
destruction of evidence.” Richards, 520 U.S. at 394, 117 S.Ct. at 1421. The Court rejected
the contention that all drug investigations inherently have risks of officer safety or
destruction of evidence. Id. at 393, 117 S.Ct. at 1421. Although the Court refused to
3
Neither party in the instant case argues that 18 U.S.C. § 3109, the “knock and announce”
statute, applies to the state officers who executed the warrant.
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adopt a blanket rule that police are never required to knock-and-announce when
executing a warrant for a drug investigation, the Court admitted that the showing of
reasonableness “is not high.” Id. at 394, 117 S.Ct. at 1422. In order to justify the no-
knock entry in this case, the police officers must have had a reasonable suspicion that
the drugs could be readily destroyed or that announcing their presence would endanger
their safety.
Washington contends that the physical aspects of the drugs and halfway house
eliminate any risk that the drugs could be easily destroyed. The police had information
that the drugs were in liquid form stored in small containers. The room only had
windows facing the street and lacked plumbing. The government contends that the
liquid form of the suspected drugs allowed for the possibility of destruction even
without sinks or toilets in the room.
Turning to the safety concerns, Washington contends that the information given
to the police did not create exigent circumstances. Washington argues that information
about weapons present in the room and that the suspect was armed is not sufficient to
create a reasonable suspicion of danger. He contends that to meet this burden either
the suspect needs to be aware of the police surveillance or that the police have
information that the suspect is both armed and dangerous. Washington cites a litany
of cases from other circuits and essentially one Fifth Circuit case to support his position.
In United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir.1986), this circuit reversed
a lower court’s denial of a motion to suppress. We stated that “[o]ur past opinions have
consistently emphasized that without reason to believe that a criminal suspect was
7
aware of police surveillance, the mere presence of firearms or destructible, incriminating
evidence does not create exigent circumstances.” 788 F.2d at 298. Munoz-Guerra, and
the cases cited therein, considered whether exigent circumstances existed for the
officers to execute a warrantless search. Here the officers possessed valid search and
arrest warrants. The pertinent issue is whether the officers’ suspicions were reasonable
to justify their entry without announcing their presence.
The police had information that there were weapons in the room and that the
suspect was armed. In United States v. Rodea, this circuit held that an officer’s safety
concerns were reasonable even though he had no particularized knowledge that the
suspect was armed. 102 F.3d 1401, 1408 (5th Cir.1996). The court considered the
officer’s testimony that he believed it was not uncommon for drug dealers to carry
weapons as sufficient to enter without warning. Id. Similarly, in United States v.
Howard, we held that an officer’s safety concerns were reasonable even without specific
knowledge that the suspect was armed or dangerous given that “firearms are tools of
the trade of those engaged in illegal drug activities.” 106 F.3d 70, 75 (5th
Cir.1997)(citations omitted).
Whether the officers had a reasonable suspicion that the drugs could be readily
destroyed is a close issue. True, the physical conditions of the room and the physical
nature of the drugs challenge the notion that a suspect could quickly and effectively
destroy the drugs with police officers beckoning at the door. We, however, need not
decide the destruction of evidence issue based on the other information available to the
officers. The officers believed that the suspect was selling drugs and was typically
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armed. This information exceeds the level this circuit has found sufficient to establish
a reasonable suspicion of danger. Accordingly, we affirm the district court’s finding of
exigent circumstances and the denial of the motion to suppress.
B. Sentencing Reduction for Acceptance of Responsibility
1. Standard of Review
This court reviews a district court’s refusal to reduce a defendant’s offense level
for acceptance of responsibility under USSG § 3E1.1 with a standard “even more
deferential than a purely clearly erroneous standard.” U.S. v. Maldonado, 42 F.3d 906,
913 (5th Cir.1995) (citations omitted). “The ruling ‘should not be disturbed unless it is
without foundation.’” Id. (quoting United States v. Robertson, 872 F.2d 597, 610 (5th
Cir.1989)).
2. Analysis
Section 3E1.1 of the Guidelines provides for reduction of the offense level “[i]f the
defendant clearly demonstrates acceptance of responsibility for his offense.” Comment
2 to USSG §3E1.1(a) (“Comment 2") states that “[t]his adjustment is not intended to
apply to a defendant who puts the government to its burden of proof at trial by denying
the essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” The record shows that Washington signed a confession after his
arrest and admitted to possessing the firearms. Further, he stipulated to all the
evidence necessary for the conviction prior to the bench trial. The Guidelines allow for
“rare situations” where the defendant accepts responsibility even though he precedes
to trial. Comment 2 explains that “[t]his may occur, for example, where a defendant
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goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make
a constitutional challenge to a statute or a challenge to the applicability of a statute to
his conduct).”
The district court held that Washington did not accept responsibility since he
“went to trial on a motion to suppress the evidence that the government proposed to
use against him and the evidence that was critical to the offense itself, that is, the
possession of the firearms that he was convicted.” Continuing, the court stated:
In this instance the defendant has not challenged the applicability of the felon in
possession of firearms statute to him. He was not challenging the
constitutionality of that statute. He was trying to avoid criminal liability for his
conduct by putting the government to proof, which he hoped the government
would not be able to establish based upon his contention that the government’s
proof was unconstitutionally obtained from him. This is not an acceptance of
responsibility. This is an intent to walk, not accept responsibility for the criminal
conduct, but exactly the opposite, that is, to avoid responsibility for the criminal
conduct. It is not the kind of situation where he admits to the conduct but says
the statute does not make it criminal or it is not the kind of case where he admits
the conduct but he says the statute itself is unconstitutional, these kinds of
examples that provide rare exceptions.
The district court equates Washington’s attempt to suppress evidence and
continue to trial with avoiding responsibility. The problem, however, is that a motion
to suppress is not synonymous with putting “the government to its burden of proof at
trial.” At issue in a suppression hearing is the admissibility of the evidence. The
defendant has the burden to demonstrate why the evidence should be excluded. A trial,
on the other hand, puts the burden on the government to prove the essential elements
of the offense.
The district court creates what is tantamount to a per se prohibition against
acceptance of responsibility for a defendant filing a motion to suppress and continuing
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to trial. Although Washington surely hoped to avoid conviction when he moved to
suppress the evidence, this “intent to walk” does not negate a willingness to accept
responsibility under the Guidelines. Comment 2 recognizes that the defendant can
precede to trial on issues not relating to factual guilt and still receive credit for
acceptance of responsibility. The provided example is a constitutional challenge to the
statute used for the conviction. In this situation, even though the defendant desires to
avoid criminal punishment, the Guidelines allow acceptance of responsibility. The
defendant‘s “intent to walk” is not the proper test for his willingness to accept
responsibility. The Guidelines create a distinction between a defendant’s denial of
factual guilt and denial of legal guilt, allowing acceptance of responsibility for the latter.
To permit a reduction when a defendant challenges the constitutionality of a statute but
deny it when a defendant admits his conduct and only challenges the way the police
obtained the evidence is counter-intuitive. Washington admitted to the factual conduct
that formed the basis of his conviction. He argued that the police violated the Fourth
Amendment when obtaining the evidence. He did not challenge the existence or
credibility of the evidence itself.
The district court also takes issue with the fact that Washington desired to appeal
the ruling denying his motion to suppress. The court’s concern is evident by the
following dialogue from the sentencing hearing:
THE COURT: Are you telling me now that the basis for your appeal is only
that [constitutional challenge to possession of a firearm that affects
interstate commerce statute] and not the motion to suppress and that
you’re no longer resisting the constitutionality of the search and seizure
that produced the evidence that was critical to the Government’s case?
11
MS. WILSON [Washington’s attorney]: I’m not saying that. I’m only
saying that even if we had not gone forward on a motion to suppress, we
would have preserved the issue of both the constitutionality and the
argument that the evidence in this case is insufficient even under the
statute because of the government’s evidence. We would have preserved
that issue in any event by requesting conditional plea, which was denied
by the government, and thereafter going forward with the stipulated
bench trial. So, the fact that we filed a motion to suppress is not
dispositive in that sense. We would have done the same thing anyway.
THE COURT: But the trial that was conducted was on the hearing to
suppress the evidence and the government was required to call witnesses.
And what you’re telling me is that you - - that the defendant continues
here at sentencing still to contend that the evidence should have been
suppressed?
MS. WILSON: Right. And that the search was - -
THE COURT: And, in effect, you do not wish to waive your right to appeal
that?
MS. WILSON: That’s right.
THE COURT: All right. And the constitutional claim was simply with
respect to constitutionality of the felon in possession of firearms, which of
course has been upheld many, many times; is that correct?
MS. WILSON: That’s right.
THE COURT: All right. Well, my ruling stands, then for the reasons that
essentially have been stated.
This colloquy suggests that the court, at least in part, considered Washington’s
desire to appeal the suppression issue as evidence that he did not accept responsibility.
By asking whether Washington would waive the right to appeal the suppression issue,
the court intimated that such a waiver might influence the court’s decision to deny the
sentence reduction. Conditioning a sentence reduction on a waiver of the right to
appeal a constitutional issue is problematic. A challenge to the legality of the police
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conduct is completely separate from a challenge to the factual elements of a defendant’s
conduct. Washington should not have to waive appeal of a constitutional issue in order
to receive a sentence reduction for acceptance of responsibility.
The government contends United States v. Maldonado, 42 F.3d 906 (5th Cir.1995),
forecloses this issue. In Maldonado, police officers stopped a suspect for speeding.
When Maldonado emerged from his truck, the officer noticed a bulge in his pocket. The
officer suspected Maldonado was armed and asked permission to pat him down. After
conducting a full pat-down, the officer discovered a bulge in the suspect’s boot.
Suspecting Maldonado had a weapon, the officer reached into the boot and removed a
small package containing what was later found to be heroin. Maldonado was charged
with possession of heroin with intent to distribute. Maldonado unsuccessfully moved
to suppress the evidence due to an illegal search and seizure. The district court judge
refused to allow the defendant to enter a guilty plea on the condition that he could
preserve his suppression claim. Maldonado, 987 F.2d at 913. Maldonado waived his
right to a jury trial and was found guilty. The district court denied any sentence
reduction for acceptance of responsibility.
On appeal, Maldonado argued that he accepted responsibility despite proceeding
to trial. Maldonado contended that other than his challenge to the seizure of the
evidence, he “stipulated to everything that could be stipulated” and waived his right
to a jury trial. Maldonado, 42 F.3d at 913. Arguing that his motion to suppress was not
related to factual guilt, Maldonado asserted that his case fell within the “rare situation”
of Comment 2 where the defendant may qualify for acceptance of responsibility even
13
after going to trial. Id. The district court determined that evidence of drugs found on
Maldonado’s person “was both necessary and sufficient” to support his conviction and
that “a challenge to the admissibility of the evidence is indistinguishable from a
challenge to factual guilt.” Id. at 913-14. This circuit affirmed the district court’s
decision.
Maldonado is distinguishable from the instant case for two reasons. First, as
previously described, the district court at least partly conditioned acceptance of
responsibility on waiving appeal of the suppression issue. Second, Maldonado
challenged his factual guilt by arguing in the suppression hearing that he was not
speeding. Maldonado, 42 F.3d at 910. Here Washington stipulated to all of the facts
necessary for his conviction. He admitted to the factual guilt of his offense.
Washington’s decision to pursue the suppression of the evidence should not preclude
him from receiving credit for accepting responsibility. To affirm the district court in this
case would chill the filing of suppression motions by defendants who admit their factual
guilt. Suppression hearings play a vital role in not only protecting the rights of the
particular defendant, but also in protecting society from overzealous law enforcement
ignoring proper procedure. In the absence of a conditional plea, the defendant would
have to choose between trying to suppress the evidence and receiving credit for
acceptance of responsibility. A defendant should not have to make this choice. We
therefore reverse the district court and remand for re-sentencing on the issue of
acceptance of responsibility.
C. Possession of a Firearm in Connection with Another Felony
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1. Standard of Review
This court reviews a district court’s application and interpretation of the
sentencing Guidelines de novo and reviews the factual findings for clear error. United
States v. Fitch, 137 F.3d 277, 281 (5th Cir.1998)(citing United States v. Edwards, 65 F.3d
430, 432 (5th Cir.1995)).
2. Analysis
Section 2K2.1(b)(5) of the Guidelines mandates a sentence enhancement if, among
other things, the “defendant used or possessed [the] firearm . . . in connection with
another felony offense.” Here Washington challenges the district court’s determination
that he possessed the firearm in connection with a felony offense meriting a four level
increase in his offense level. Washington argues that the evidence is insufficient to
show that the weapons were used for any purpose connected to the small amount of
drugs recovered. He contends that while a firearm can conceivably be used in
connection with the distribution of drugs, a firearm cannot logically be used “in
connection with” possession of drugs for personal use.
We examined this very issue in United States v. Condren, 18 F.3d 1190 (5th
Cir.1994). In Condren, the court enhanced the defendant’s sentence for being a felon in
possession of a firearm under § 2K2.1(b)(5) because illegal drugs, in addition to the
firearm, were found during the search of his home. The district court concluded that the
defendant “possessed the firearm while in possession of small quantities of crack and
marijuana seed, and determined that this possession was a felony, because he had been
convicted previously of a narcotics offense.” Condren, 18 F.3d at 1194. This circuit held
15
that the district court correctly determined that a defendant possessing the firearm “in
connection with” either drug possession or distribution triggered the sentence
enhancement. Condren, 18 F.3d at 1195. “[I]n imposing the enhancement, the district
court implicitly concluded that the firearm possession was in connection with the drug
possession.” Id. Condren argued that “the government failed to show that his firearm
possession was ‘in connection with,’ i.e., in any way related to, his commission of
‘another felony.’” Id. at 1194. The defendant contended that “‘in connection with’
requires the government to establish a ‘nexus’ between his firearm and drug
possession, and that it is lacking because the drug quantity – .1 gram of cocaine and
33.3 grams of marijuana seed – is consistent with personal use and too small to support
a conclusion that he possessed the firearm in order ‘to protect’ the drugs.” Id. at 1195.
We rejected that argument stating that “[u]nder the ordinary and natural meaning of
‘in connection with’ as found in § 2K2.1(b)(5) . . . we cannot credit either Condren’s
contention that the quantity of drugs involved was too small, or the possible contention
that the source of the firearm was too unrelated to support the enhancement.” Id. at
1198. Further, we noted that Ҥ 2K2.1(b)(5) does not specify that a certain amount of
drugs are required to support the enhancement.” Id. at 1199.
Here Washington makes the same argument that this circuit considered in
Condren. Washington argues that the quantity of drugs seized was too minute for
anything other than personal use and that the government failed to establish a
connection between the firearms and the drugs. Washington contends that Condren
was wrongly decided and should not control. He directs the court to other circuits that
16
held that the phrase “in connection with” should be interpreted as equivalent to the
phrase “in relation to” as featured in 18 U.S.C. § 924(c). We expressly rejected this same
argument in Condren. After distinguishing the two statutes, we stated that the
language of Ҥ 2K2.1(b)(5) mandates an enhancement even if the defendant only
possesses a firearm in connection with any other felony.” Id. at 1196. Accordingly, we
hold that the district court correctly applied the four level increase in Washington’s case.
D. Sufficient Evidence to Support Washington’s Conviction
1. Standard of Review
“[T]he standard of review for sufficiency of evidence is whether any reasonable
trier of fact could have found that the evidence established the essential elements of the
crime beyond a reasonable doubt.” United States v. Jones, 133 F.3d 358, 362 (5th
Cir.1998)(citing United States v. Alix, 86 F.3d 429, 435 (5th Cir.1992)). “In evaluating the
sufficiency of the evidence, [the court] consider[s] the evidence in the light most
favorable to the government with all reasonable inferences and credibility choices made
in support of the verdict.” Id. (citations omitted).
2. Analysis
For a violation of 18 U.S.C. § 922(g), the government must prove that: (1) the
defendant previously had been convicted of a felony; (2) that the defendant possessed
a firearm; and (3) that the firearm traveled in or affected interstate commerce. See
United States v. Gresham, 118 F.3d 258, 265 (5th Cir.1997)(citations omitted).
Here Washington challenges the third prong. Washington concedes that the
firearms at issue were manufactured outside of Texas and, therefore, traveled interstate
17
prior to him possessing them in Texas. He argues, however, that proof that the firearm
previously crossed state lines is insufficient to meet the interstate commerce element
of § 922(g)(1). In support of his position, Washington cites two Supreme Court cases:
United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d. 658 (2000), and
United States v. Jones, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).
In United States v. Daugherty, this circuit upheld a conviction of a felon in
possession of a firearm after the government proved that the firearm at issue was
manufactured in Egypt and imported through Tennessee before reaching Texas. 264
F.3d 513, 514 (5th Cir.2001), cert denied, 534 U.S. 1150 (2002). The defendant argued
that “the government failed to prove that he possessed a firearm ‘in and affecting’
interstate commerce”– essentially the same argument that Washington makes here. Id.
at 518. The Daugherty court stated that “we repeatedly have said that evidence similar
to that presented in Daugherty’s case suffices to maintain a § 922(g)(1) conviction.” Id.
(citing United States v. Kuban, 94 F.3d 971 (5th Cir.1996)(affirming a § 922(g)(1)
conviction where the weapon was manufactured in Belgium and possessed in Texas);
United States v. Rawls, 85 F.3d 240 (5th Cir.1996) (affirming a § 922(g)(1) conviction
where the weapon was manufactured in Massachusetts and possessed in Texas)).
“Thus, his constitutional challenge to § 922(g) fails, because ‘the constitutionality of §
922(g) is not open to question.’” Id. (quoting United States v. DeLeon, 170 F.3d 494, 499
(5th Cir.1999).
Daugherty asked the court to reconsider the interstate commerce prong of §
922(g)(1) under two Supreme Court cases, Morrison and Jones – the same two cases
18
Washington asks this court to consider. In Daugherty, we stated “[b]oth [Morrison and
Jones], however, are distinguishable from the present case, because a plain
jurisdictional element exists in § 922(g), and there is stipulated evidence showing that
the gun traveled in interstate commerce. Neither Jones nor Morrison affects or
undermines the constitutionality of § 922(g).” 264 F.3d at 518.
This court has already considered and denied Washington’s attacks of the
interstate commerce prong of § 922(g) in the Daugherty opinion. We agree that the
evidence the government presented was sufficient to support Washington’s conviction.
III. CONCLUSION
Based on the foregoing analysis, we AFFIRM in part and REVERSE and REMAND
in part. We AFFIRM the district court’s denial of Washington’s motion to suppress. We
AFFIRM the district court’s enhancement of Washington’s sentence for possessing a
firearm in connection with another felony. We AFFIRM the district court’s conclusion
that the weapons traveled in or affected interstate commerce as necessary for his
conviction. We REVERSE the district court’s decision to deny Washington a reduction
in sentence for acceptance of responsibility and REMAND to the district court for re-
sentencing.
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