United States Court of Appeals
Fifth Circuit
F I L E D
In the May 16, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-10525
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY NEIL SCHMIDT,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges. I.
Schmidt was charged with four counts of
JERRY E. SMITH, Circuit Judge: being a felon in possession of a firearm in vio-
lation of § 922(g)(1), which prohibits the pos-
Jerry Schmidt appeals his conviction. Be- session of a firearm by “any person who has
cause the district court properly found that been convicted in any court of, a crime pun-
Schmidt’s prior conviction was a predicate of- ishable by imprisonment for a term exceeding
fense for purposes of 18 U.S.C. § 922(g)(1), one year . . . .” 18 U.S.C. § 922(g)(1).
we affirm. Schmidt’s predicate offense was a 1985 Texas
felony conviction of burglary of a vehicle, and effect for that purpose.” Id.1 Texas courts
it is not disputed that in 1985 the offense was that have sentenced defendants after Septem-
punishable by more than one year’s incarcera- ber 1, 1994, for offenses committed before
tion. that date have used the pre-amendment code.2
In 1994 Texas modified its penal code, and It is not disputed that Schmidt’s predicate
burglary of a vehicle was reduced from a third offense, burglary of a vehicle, was committed
degree felony to a Class A misdemeanor. Un- in 1985. Because this was before the effective
der Texas law, misdemeanors are punishable date of the amendment, the offense is gov-
by a maximum of one year’s incarceration. erned by the pre-amendment code. Thus, it is
TEX. PENAL CODE § 12.21. Schmidt argues irrelevant which point in time is chosen to ex-
that because, at the time of the events giving amine Schmidt’s potential sentence for the
rise to his § 922 offense, burglary of a vehicle burglarySSunder the pre-1994 code, burglary
was not punishable by a term of more than one of a vehicle is punishable by more than one
year, it cannot properly be a predicate offense. year. Regardless of whether the incarceration
term is measured at the time of the conviction
II. or at the time of the events giving rise to the
This case turns on what point in time is § 922(g)(1) conviction, Schmidt’s burglary-of-
used to measure the incarceration term of the a-vehicle conviction was punishable by more
predicate offense. Schmidt argues that, be- than one year. Even if he were being sen-
cause Congress used the term “punishable” tenced today for his 1985 burglary of a vehi-
instead of “was punishable,” the correct point cle, he would be sentenced under the pre-
to use is the time of the events giving rise to amendment code and would face incarceration
his § 922 conviction, when burglary of a ve- term of more than one year. Accordingly, his
hicle was not punishable by over one year’s state conviction is a predicate offense for pur-
incarceration. The government reasons that poses of § 922(g)(1).
the correct point is the time of the predicate
conviction, when burglary of a vehicle was
punishable by more than one year. A close
reading of the 1994 amendment, however, 1
See also Davila v. State, 930 S.W.2d 641,
shows that we do not need to resolve this 654 (Tex. App. 1996) (“In amending the Penal
question to decide Schmidt’s appeal. Code, the Legislature specifically provided that an
offense committed before the effective date of the
The 1994 amendment includes a retroactiv- amendments is governed by the law in effect when
ity clause stating that the changes apply “only the offense was committed.”).
to an offense committed on or after [Septem-
2
ber 1, 1994].” Acts 1993, 73rd Leg., R.S., ch. See, e.g., Delgado v. State, 908 S.W.2d 317,
900, § 1.18, 1993 Tex. Gen. Laws 3708. The 318-19 (Tex. App.SSEl Paso 1995, pet. ref’d);
amendment further states that “[a]n offense Poledore v. State, 8 S.W.3d 22, 25 (Tex. App.SS
committed before [September 1, 1994] is cov- Houston [14th Dist.] 1999, pet. ref’d) (holding that
it was proper to sentence defendant under the more
ered by the law in effect when the offense was
severe pre-amendment code for an offense commit-
committed, and the former law is continued in
ted in 1989, even though the sentencing proceeding
was conducted in 1996 (because the defendant had
been placed on deferred adjudication)).
2
III. 2005 firearm possession, would be merely
Schmidt argues that the plain language of ignorance of the law.
the statute requires the government to prove
that he knew not only that he was possessing IV.
a firearm, but also that he was a felon. We re- Schmidt urges that § 922(g)(1) is unconsti-
jected this claim in United States v. Dancy, tutional on its face, and as applied to him, be-
861 F.2d 77, 81-82 (5th Cir. 1988), in which cause it does not require a “substantial” effect
we held that conviction under § 922(g)(1) re- on interstate commerce. He bases this on
quires proof that the defendant knew that he United States v. Lopez, 514 U.S. 549 (1995),
had received (or possessed or transported) a Jones v. United States, 529 U.S. 848 (2000),
firearm but does not require proof that he and United States v. Morrison,529 U.S. 598
knew that the firearm had an interstate nexus (2000). Our precedent forecloses this argu-
or that he was a felon. Id. ment: “[T]he constitutionality of § 922(g)(1)
is not open to question.” United States v.
Schmidt contends that the holding of Dancy Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
has been rendered invalid by Staples v. United Lopez, Jones, and Morrison do not alter this
States, 511 U.S. 600 (1994), and Bryan v. conclusion. Id.
United States, 524 U.S. 184 (1998). We dis-
agree. In United States v. Privett, 68 F.3d The judgment of conviction is AFFIRMED.
101, 104 n.1 (5th Cir. 1995), we rejected the
notion that Staples nullifies Dancy with re-
spect to the mens rea requirement of § 922-
(g)(1).
“[U]nless the text of the statute dictates a
different result, the term ‘knowingly’ merely
requires proof of knowledge of the facts that
constitute the offense.” Bryan, 524 U.S. at
193. At issue in Bryan was whether the term
“willful” in 18 U.S.C. § 924(a)(1)(D) requires
specific, or merely general, intent. The Bryan
Court was not confronted with whether to ex-
tend a mens rea requirement to a defendant’s
felony status.
In any event, Schmidt does not claim ig-
norance of his 1985 Texas conviction for burg-
lary of a vehicle, and any ignorance he may
have had with respect to whether, in light of
the 1994 Texas amendments, that conviction
renders him a person ‘who has been convicted
in any court of a crime punishable by imprison-
ment for term exceeding one year’ for pur-
poses of § 922(g)(1) as applied to his charged
3