IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-20871
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MITCHELL RAY DAUGHERTY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
August 28, 2001
Before JOLLY, SMITH, and WIENER, released him and placed him on “shock proba-
Circuit Judges. tion” for ten years. In 1995, the court dis-
charged him from probation.1
JERRY E. SMITH, Circuit Judge:
In March 2000, police officers responded to
Mitchell Daugherty appeals his conviction a disturbance call placed by two sisters staying
of violating 18 U.S.C. § 922(g)(1) (2001), in a motel room. They complained that
which prohibits convicted felons from pos-
sessing firearms “in and affecting” interstate
commerce. We affirm. 1
The order read, in pertinent part: “and it
further appearing to the satisfaction of the Court
I.
that the period of probation herein has expired, and
Daugherty was convicted in state court of that all conditions of probation have been
delivery of marihuana and injury to a child and satisfactorily fulfilled, . . . the Defendant is dis-
was imprisoned. In 1985, the state court charged from probation.”
Daugherty had repeatedly harassed and 364 (5th Cir. 1995). The court must decide
threatened them. The officers found Daugher- “whether any substantial evidence supports the
ty standing outside the motel room, talked to finding of guilty,” id. (quoting United States v.
him, and searched him for weapons, finding Davis, 993 F.2d 62, 66 (5th Cir. 1993)), and
none. They then spoke with the two sisters, “whether the evidence is sufficient to justify
who said Daugherty had a weapon in his truck. the trial judge, as trier of the facts, in
One of the officers found a rifle, which concluding beyond a reasonable doubt that the
Daugherty admitted he owned and which was defendant was guilty.” Id.
manufactured in Egypt and imported through
Knoxville, Tennessee. No person “who has been convicted in any
court of a crime punishable by imprisonment
II. for a term exceeding one year” may possess a
Daugherty was indicted for being a felon in firearm “in or affecting” interstate commerce.
possession of a firearm, in violation of 18 § 922(g)(1).2 The law of the jurisdiction in
U.S.C. §§ 922(g)(1) and 924(a)(2). He filed which the proceedings were held determines
a motion to dismiss the indictment on the what constitutes a crime.3 So, Texas law
ground that his two state felony convictions
did not prohibit him from possessing a firearm,
2
because he had been discharged from pro- Section 922(g)(1) provides:
bation for both offenses. The court denied
that motion. (g) It shall be unlawful for any personSS
Daugherty consented to a bench trial based (1) who has been convicted in any court of,
a crime punishable by imprisonment for a
on a written stipulation of facts. After the
term exceeding one year; . . .
government had presented its case, Daugherty
moved for a judgment of acquittal under FED. to ship or transport in interstate or foreign
R. CRIM. P. 29 on the basis that there was an commerce, or possess in or affecting com-
insufficient nexus with interstate commerce. merce, any firearm or ammunition; or to
Daugherty again argued that his completion of receive any firearm or ammunition which
probation allowed him to possess a firearm. has been shipped or transported in interstate
The court overruled both motions and found or foreign commerce.
Daugherty guilty.
18 U.S.C. § 922(g)(1) (2001).
III. 3
The question whether a felony conviction Beecham v. United States, 511 U.S. 368, 371
may serve as a predicate offense for a prosecu- (1994).
tion for being a felon in possession of a firearm
What constitutes a conviction of such a
pursuant to § 922(g)(1) is “purely a legal one.” crime shall be determined in accordance
United States v. Thomas, 991 F.2d 206, 209 with the law of the jurisdiction in which the
(5th Cir. 1993). Consequently, “our review is proceedings were held. Any conviction
plenary.” Id. We affirm a § 922(g)(1) which has been expunged, or set aside or for
conviction if substantial evidence exists to sup- which a person has been pardoned or has
port it. United States v. Ybarra, 70 F.3d 362, had civil rights restored shall not be
(continued...)
2
determines whether Daugherty was a convict- Daugherty, however, contends that, under
ed felon for purposes of § 922(g)(1). See, TEX. CODE CRIM PROC. ANN. art. 42.12,§
e.g., United States v. Dupaquier, 74 F.3d 615, 20(a) (Vernon Supp. 2001), the successful
617 (5th Cir. 1996). completion of his probation restored his civil
rights such that he no longer should be con-
“Not all . . . convictions, however, count sidered convicted.
for purposes of § 922(g) . . . .” Caron v.
United States, 524 U.S. 308, 313 (1998). A That statute provides:
conviction for which the defendant’s civil
rights have been restored is not a predicate If the judge discharges the defendant un-
offense “unless such . . . restoration of civil der this section, the judge may set aside
rights expressly provides that the person may the verdict or permit the defendant to
not ship, transport, possess, or receive fire- withdraw his plea, and shall dismiss the
arms.” § 921(a)(20).4 . . . indictment against the defendant,
who shall thereafter be released from all
Section 922(g)(1) has three requirements: penalties and disabilities resulting from
“(1) that the defendant previously had been the offense or crime of which he has
convicted of a felony; (2) that he possessed a been convicted . . . .
firearm; and (3) that the firearm traveled in or
affected interstate commerce.” United States Daugherty reasons that, consequently, his two
v. Gresham, 119 F.3d 258, 265 (5th Cir. 1997) felony convictions cannot serve as predicate
(citing United States v. Fields, 72 F.3d 1200, offenses under § 921(a)(20).
1211 (5th Cir. 1996)). The parties have stipu-
lated that the first two factors are met. We have a two-part test to determine
whether the “unless clause” of § 921(a)(20),
which supports a § 922(g)(1) conviction, is
3
(...continued) triggered. Dupaquier, 74 F.3d at 617. First,
considered a conviction for purposes of this we ask whether “the state which obtained the
chapter, unless such pardon, expungement, underlying conviction revives essentially all
or restoration of civil rights expressly pro- civil rights of convicted felons, whether af-
vides that the person may not ship, trans- firmatively with individualized certification or
port, possess, or receive firearms. passively with automatic reinstatement.” Id.
(quoting Thomas, 991 F.2d at 213). Second,
18 U.S.C. § 921(a)(20) (2001). we “determine whether the defendant was nev-
4
ertheless expressly deprived of the right to
This is referred to as the “unless clause” of possess a firearm by some provision of the re-
§ 921(a)(20). See Caron, 524 U.S. at 309. In
storation law or procedure of the state of the
passing the Firearm Owners Protection Act of
1986, Pub. L. No. 99-308, § 1(a), 100 Stat. 449
underlying conviction.” Id. (emphasis added).
(1986), Congress amended Section 921(a)(20) “to
give federal effect to state statutes that fully restore Because Daugherty’s rights were passively
the civil rights of convicted felons when they are revived by operation of law, not by individu-
released from prison, or are granted a pardon, or
have their convictions expunged.” Thomas, 991
F.2d at 209.
3
alized certification,5 we examine Texas law to cuit has reached the same conclusion. In
decide whether any provision or procedure United States v. Padia, 584 F.2d 85, 86 (5th
limits his right to possess firearms. See Caron, Cir. 1978), we affirmed a conviction of receiv-
524 U.S. at 313-15, 317-18 (Massachusetts ing firearms in interstate commerce by a con-
law). The government contends that, even victed felon, stating that probation does not
assuming that Daugherty’s general civil rights erase the conviction8 but only “rewards a con-
were restored under art. 42.12, § 20, so as to victed party for good behavior during proba-
fulfill the first part of the Dupaquier test, some tion by releasing him from certain penalties
“procedure of the state of the underlying and disabilities otherwise imposed upon con-
conviction” expressly deprived him of the right victed persons by Texas law.” Id. (citing Gon-
to possess a firearm.6 zalez de Lara v. United States, 439 F.2d 1316,
1318 (5th Cir. 1971)).9
The government argues that TEX. PENAL Although Padia and Lehmann applied art.
CODE ANN. § 46.04(a) (Vernon 2001) pro-
hibits Daugherty from possessing firearms.
That statute generally provides that it is un- 7
(...continued)
lawful for a person convicted of a felony to U.S. 103, 112 n.6, 113-14 (1983). There, the
possess a firearm. Daugherty claims that a Court stated that “Congress’ intent in enacting
person discharged from probation under art. §§ 922(g) and (h) . . . was to keep firearms out of
42.12, § 20, is no longer “convicted.” the hands of presumptively risky people.” Id. at
112 n.6 (citation omitted). Bearing legislative in-
Neither art. 42.12, § 20, nor § 46.04 ex- tent in mind, the Court stated: “[F]or purposes of
plains whether successful completion of proba- the federal gun control laws, we equate a plea of
tion supervision renders one “no longer con- guilty and its notation by the state court, followed
by a sentence of probation, with being convicted
victed.” Before enactment of the “unless
within the language of §§ 922(g) and (h).” Id. at
clause,” however, the Supreme Court con-
114 (citation omitted).
cluded that one is considered convicted even
after the completion of probation.7 This cir 8
Padia involved an application of TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 7 (subsequently
recodified as art. 42.12, § 20), to 18 U.S.C.
5 § 922(h). Padia, 584 F.2d at 85.
This circuit has considered only situations in
which the defendant’s civil rights were passively
9
restored by operation of state law. See Thomas, Accord United States v. Morales, 854 F.2d
991 F.2d at 209-16 (Texas law); Dupaquier, 74 65, 68 (5th Cir. 1988) (“We have previously held
F.3d at 617-19 (Louisiana law). that persons given probated sentences for Texas
felony convictions, whether the probations are still
6 pending, . . . or successfully completed, . . . are
See Dupaquier, 74 F.3d at 617; Caron, 524
U.S. at 316-17 (holding that, because Massachu- persons convicted for purposes of 18 U.S.C. §§
setts law expressly provided that felons could not 922(g), (h) (1982). The rationale of those
possess firearms, that law activated the “unless precedents furnish guidance today.”) (citations and
clause” of § 921(a)(20) and prevented petitioner quotation marks omitted); United States v.
from owning a firearm). Lehmann, 613 F.2d 130, 135 (5th Cir. 1980) (fol-
lowing Padia’s holding that “a prior conviction did
7
See Dickerson v. New Banner Inst., Inc., 460 exist where a defendant, convicted of a crime in
(continued...) Texas, was given probation”).
4
42.12, § 7, to § 922(g)(1) before enactment of Daugherty responds correctly that Tune ap-
the “unless clause,” see Padia, 584 F.2d at 86, plied only to the definition of “convicted” as
this circuit’s precedent regarding the effect provided in the CHA and thus is not squarely
that probation has on a conviction in Texas has on point here. The court in Tune stated, how-
not changed since Congress enacted the “un- ever, that “the Legislature may wish to keep
less clause.” In United States v. Morales, 854 concealed handguns out of the hands of per-
F.2d 65, 68 (5th Cir. 1988), we noted sons who have been convicted of a felony,
specifically that the successful completion of even if those persons satisfactorily completed
probation does not expunge a conviction for community supervision.” Id. That rationale
purposes of § 922(g). We decided Morales also applies here, because the Texas Legisla-
two years after Congress amended § 922(g) to ture has passed laws designed to keep firearms
include the “unless clause.” Thus, under Fifth out of the hands of convicted felons. See
Circuit precedent, Daugherty remained a § 46.04.
convicted felon.
Both § 46.04 and the CHA demonstrate the
The government also contends that the power of the legislature “to regulate the wear-
Concealed Handgun Act (“CHA”), TEX. ing of arms, with a view to prevent crime.”
GOV’T CODE ANN. § 411.171(4) (Vernon TEX. CONST. art. I, § 3. Thus, Tune provides
Supp. 2001), prevents Daugherty from owning strong analogous support for affirming Daugh-
a firearm. The government strongly relies on erty’s conviction. Even without Tune,
Tune v. Tex. Dep’t of Pub. Safety, 23 S.W.3d however, Padia and its progeny are con-
358 (Tex. 2000), in which the defendant was
denied a license to carry a concealed handgun
because he had been convicted of a felony. 10
(...continued)
See id. at 360. He argued that, because his Lendon was not eligible for a license); Tex. Dep’t
conviction had been was set aside under art. of Pub. Safety v. Kreipke, 29 S.W.3d 334, 337-38
42.12, § 20, he was no longer “convicted” un- (Tex. App.SSHouston [14th Dist.] 2000, pet. de-
der the CHA. Id. at 363. The Texas Supreme nied) (holding that Kreipke was not eligible for a
Court, noting that the CHA deemed a felon concealed-handgun license because of a previous
convicted “after an adjudication of guilt is felony conviction, even though his crime was no
entered against him whether or not his sen- longer a felony and the conviction had been set
tence is subsequently probated and he is dis- aside); Tex. Dep’t of Pub. Safety v. Randle, 31
charged from supervision,” id. (citation omit- S.W.3d 786, 787-88 (Tex. App.SSHouston [1st
ted), declared that Tune was not eligible for a Dist.] 2000, no pet.) (following the reasoning of
concealed-handgun license. Id. at 364. After Kreipke and rendering judgment that defendant was
Tune, most Texas courts have held that a per- not eligible for a concealed handgun license). But
see Cuellar v. State, 40 S.W.3d 724, 725-29 (Tex.
son applying for a concealed-handgun license
App.SSSan Antonio 2001, no pet.) (holding that
remains convicted for purposes of the CHA.10 the art. 42.12 order relieved Cuellar of the penalty
limiting his right to possess a firearm); Kreipke, 31
S.W.3d at 338-40 (Wittig, J., concurring in part
10
See Texas Dep’t of Pub. Safety v. McLendon, and dissenting in part) (stating that “[t]oday’s
35 S.W.3d 632, 633 (Tex. 2000) (per curiam) erosion of right, however slight, is not unlike one of
(following Tune and rendering judgment that Mc- the first drops of rain on Noah’s head”) (emphasis
(continued...) added).
5
trolling. Daugherty urges us to reconsider the inter-
state commerce element of § 922(g)(1) in light
Under Texas law, Daugherty remained con- of two recent, intervening decisions: United
victed even after successfully completing States v. Morrison, 529 U.S. 598 (2000), and
probation.11 Consequently, he is subject to the Jones v. United States, 529 U.S. 848 (2000).
penalties that state law imposes on convicted Both, however, are distinguishable from the
felons. Section 46.04 prohibits felons from present case, because a plain jurisdictional ele-
possessing firearms outside their homes. Ac- ment exists in § 922(g), and there is stipulated
cordingly, Texas statutory law activated the evidence showing that the gun traveled in
“unless clause” in § 921(a)(20) and prevents interstate commerce. Neither Jones nor Mor-
Daugherty from possessing a firearm. rison affects or undermines the constitution-
ality of § 922(g).
IV.
Daugherty avers that the government failed IV.
to prove that he possessed a firearm “in and Because the Texas Supreme Court has not
affecting” interstate commerce, as required by addressed the first issue in this case, we must
§ 922(g)(1). See Gresham, 119 F.3d at 265 “decide the case as would an intermediate ap-
(citing Fields, 72 F.3d at 1211). He claims pellate court of the state in question . . . .”
that this case is “a classic example of a purely Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d
local offense.” In evaluating a Commerce 1245, 1247 (5th Cir. 1997) (per curiam) (quot-
Clause challenge under United States v. Lopez, ing DiPascal v. N.Y. Life Ins. Co., 749 F.2d
514 U.S. 549 (1995), however, we repeatedly 255, 260 (5th Cir. 1985)). There is substantial
have said that evidence similar to that pre- support in Texas law for the proposition that
sented in Daugherty’s case suffices to maintain persons convicted of a felony are still consid-
a § 922(g)(1) conviction,12 and Daugherty ered convicted felons even after they success-
admits as much. Thus, his constitutional fully complete community supervision. This
challenge to § 922(g) fails, because “the circuit has repeatedly reached that conclusion,
constitutionality of § 922(g) is not open to and Daugherty cites no cases in opposition.
question.” United States v. DeLeon, 170 F.3d There was a sufficient nexus between Daugh-
494, 499 (5th Cir.), cert. denied, 528 U.S. 863 erty’s possession of the weapon and interstate
(1999). commerce.
AFFIRMED.
11
See United States v. Sauseda, 2001 WL
694490, at *3 (W.D. Tex. Jan. 10, 2001) (finding
defendant guilty of violating. § 922(g)(1)).
12
See 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 manu-
factured in Massachusetts and possessed in Texas).
6