United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-20100
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EDWARD DUNN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-739-ALL
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Michael Edward Dunn appeals his jury conviction and sentence
for possession of a firearm by a convicted felon and making false
statements to licensed firearm dealers in violation of 18 U.S.C. §§
922(a)(6), 922(g)(1) and 924(a)(2). For the reasons set forth
below, we affirm Dunn’s conviction, vacate his sentence, and remand
for resentencing.
Dunn contends that the district court erred when it denied his
motion to suppress the weapons seized during a search of his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-20100
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residence conducted on October 25, 1999, because the seizure
exceeded the scope of the warrant. Dunn did not raise this issue
in his pre-trial motion to suppress, and explicitly limited his
motion to an attack on the sufficiency of the affidavits at his
suppression hearing. This issue is waived. See United States v.
Carreon-Palacio, 267 F.3d 381, 389 (5th Cir. 2001) (“We recognize
that FED. R. CRIM. P. 12(b)(3) requires that parties move to suppress
before trial or risk waiver of such claim.”); United States v.
Chavez-Valencia, 116 F.3d 127, 129 (5th Cir. 1997) (failure to
raise a suppression issue at trial forecloses a defendant from
raising the issue for the first time on appeal).
Dunn also contends that the evidence at trial was not
sufficient to establish that he had a felony conviction as defined
by 18 U.S.C. § 921(a)(20) because the Government failed to prove
beyond a reasonable doubt that his civil rights, including his
right to possess firearms, had not been restored. As an element of
its 18 U.S.C. § 922(g)(1) charge, the Government must prove that
Dunn was a convicted felon. See United States v. Fields, 72 F.3d
1200, 1211 (5th Cir. 1996). We have found that “[t]he question
whether a felony conviction may serve as a predicate offense for a
prosecution for being a felon in possession of a firearm pursuant
to [18 U.S.C.] § 922(g)(1) is a purely legal one.” United States
v. Daugherty, 264 F.3d 513, 514 (5th Cir. 2001). In addition, the
defendant bears the burden of proving that his conviction has been
expunged or set aside, or that he has been pardoned or had his
No. 04-20100
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civil rights restored. See United States v. Huff, 370 F.3d 454,
458-59 (5th Cir. 2004). Dunn stipulated to his status as a
convicted felon, and this stipulation was introduced as evidence at
trial. Accordingly, the Government produced sufficient evidence
for a reasonable jury to find that Dunn had been convicted of a
felony. See United States v. Shelton, 325 F.3d 553, 564 (5th Cir.
2003) (stipulated evidence sufficient to prove interstate commerce
element of unlawful possession of weapon charge); United States v.
Mankins, 135 F.3d 946, 948-49 (5th Cir. 1998) (stipulation
sufficient to prove possession of drugs).
Dunn also contends that the district court plainly erred in
failing to instruct the jury as to the correct definition of a
“conviction,” thereby depriving him of his Sixth Amendment right to
a trial by jury. Because Dunn did not request a jury instruction
on the definition of a conviction, and did not object to the
district court’s failure to give such an instruction, a plain error
analysis applies. See United States v. Daniels, 281 F.3d 168, 184
(5th Cir. 2002). “We find plain error only if: (1) there was an
error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.” United States v.
Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). As noted above,
whether Dunn’s prior convictions constituted “convictions” pursuant
to 18 U.S.C. § 921(a)(20) is a purely legal question to be decided
by the district court. In addition, Dunn carried the burden of
proving that his civil rights had been restored. As there was no
No. 04-20100
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evidence presented at trial that Dunn’s civil rights, including his
right to possess firearms, had been restored, Dunn cannot show that
the district court committed plain error in constructing the jury
charge.
Dunn has not demonstrated any reversible error in connection
with his conviction, and his conviction is AFFIRMED.
Regarding the sentence imposed, Dunn contends that the
district court committed reversible plain error when it sentenced
him pursuant to the mandatory United States Sentencing Guidelines
system held unconstitutional in United States v. Booker, 125 S. Ct.
738 (2005). Because Dunn did not object on this basis in the
district court, this court’s review is for plain error. See United
States v. Valenzuela-Quevedo, F.3d , No. 03-41754, 2005 WL
941353, at *3 (5th Cir. Apr. 25, 2005).
The district court plainly erred when it sentenced Dunn
pursuant to the mandatory Guidelines system held unconstitutional
in Booker. See Valenzuela-Quevedo, 2005 WL 941353, at *4. The
error affected his substantial rights because it appears from the
district court’s comments at sentencing that it would have imposed
a lesser sentence under an advisory guidelines scheme. See, e.g.,
United States v. Pennell, F.3d , No. 03-50926, 2005 WL
1030123 at *5 (5th Cir. May 4, 2005). Because the error likely
increased his sentence, Dunn has shown that the error seriously
affected the fairness, integrity, or public reputation of the
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judicial proceedings. See id. at *5-6. Accordingly, Dunn’s
sentence is VACATED, and the case is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.