United States v. Hicks

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 30, 2004
• Docket: 03-40655
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit

REVISED NOVEMBER 30, 2004 F I L E D November 2, 2004 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

No. 03-40655

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RICHARD HICKS

Defendant - Appellant

Appeal from the United States District Court for the Eastern District of Texas, Sherman

Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit Judges.

KING, Chief Judge:

Richard Hicks, a federal prisoner, appeals his conviction

and sentence for violating 18 U.S.C. § 922(g)(8) by possessing

firearms and ammunition while he was subject to a domestic

restraining order. He alleges that the district court improperly

admitted evidence and testimony at trial, improperly sentenced

him, and incorrectly concluded that his challenge to the

underlying protective order was barred by Fifth Circuit

precedent. He also contends that the evidence against him was

insufficient for a conviction. For the following reasons, we

1 AFFIRM Hicks’s conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 25, 2000, Officers Michael Webster and James

Lamance of the Bells Police Department observed Richard Hicks

leave the Dusty Saddle, a local bar in Whitewright, Texas, in a

white pickup truck. While driving away from the Dusty Saddle,

Hicks crossed the road’s centerline. The officers activated

their emergency lights and tried to pull him over. In response,

Hicks pulled away, ran two stop signs, and led the officers on a

high-speed chase that ended in a field. At the field, the

officers’ vehicles got stuck, and they could not continue

pursuing Hicks.

Approximately one month later, on December 20, 2000, a white

pickup truck driven by Hicks led Officer Kevin Lamance and his

brother, Officer James Lamance, on a high-speed chase. The

officers had observed Hicks’s truck leaving the Dusty Saddle and

swerving on the road, and they had activated the overhead lights

of their patrol vehicle in an attempt to stop him. Instead of

stopping, however, Hicks accelerated and engaged the officers in

a pursuit that ended in the same field where the November chase

ended. During this chase, Hicks’s truck hit a bridge and slammed

into the opposite shoulder of the road. Because Officer James

Lamance’s vehicle had become stuck in the same field a month

before, the officers chose not enter the field. Later, they

located the damaged truck at Hicks’s residence. Approximately

2 three days after this chase, on or about December 22, 2000, Hicks

purchased a new white pickup truck.

On December 23, 2000, at around 1:00 a.m., Officers James

and Kevin Lamance spotted and followed a newer-model white pickup

truck leaving the Dusty Saddle. The truck was traveling at a

high rate of speed and appeared incapable of remaining in its

lane. The officers activated their overhead lights, but instead

of stopping, the truck accelerated. The truck then turned into

the same field where the November 25 and December 20 chases had

ended. Because the officers’ patrol vehicle was not equipped

with four-wheel drive, they once again chose not to enter the

field. Based on Hicks’s history of leading officers on similar

chases, the officers radioed that the driver they were pursuing

was likely Hicks. Eventually, the white truck stopped in the

field approximately 200 yards from the patrol car.

After the truck stopped in the field, Officer Kevin Lamance

heard and felt a bullet whiz by his head. Officer James Lamance

immediately radioed that shots had been fired. Shortly

thereafter, Officer Kevin Lamance heard another shot, felt the

patrol car begin to roll forward, and realized that his brother,

who was driving, had been shot. Officer Kevin Lamance exited the

vehicle and returned fire. The pickup truck then left the field,

and Officer Kevin Lamance radioed that an officer was down. His

brother, Officer James Lamance, died from a gunshot wound to the

head.

3 Officer Kevin Lamance did not clearly see who was driving

the white truck the night his brother was killed. He believed,

however, that Hicks was at the wheel given the similarities to

the other two chases in which Hicks had engaged the police.

Additionally, Fannin County Deputy Sheriff Matt Robbins had heard

Officer James Lamance’s radio transmissions about the white

pickup truck on December 23, 2000 and had headed to the scene of

the chase to render assistance. While en route to the scene,

Officer James Lamance advised him by radio that Hicks was

probably the driver. As Deputy Robbins approached the scene of

the shooting, he saw a pickup truck that matched the description

given by Officer James Lamance entering a nearby intersection.

Robbins continued driving with the pickup truck traveling behind

him, and eventually the truck pulled into the private drive to

Hicks’s residence and entered the garage. Although Robbins

followed the truck to Hicks’s house, he did not get a good look

at the driver and could not say for sure that it was Hicks.

Immediately following the shooting, Hicks’s house was placed

under surveillance. Later that evening, a SWAT team from a

nearby county arrived and, after unsuccessfully trying to contact

Hicks, forcibly entered the house and arrested him.

During Hicks’s arrest, officers observed a .30-30 rifle on a

gun rack in Hicks’s son’s room. This rifle was not in the same

position as the other three firearms on the rack and looked to

the officers as though it had been quickly thrown into place.

4 Subsequently, the officers obtained a search warrant for Hicks’s

home. When they searched his house, they seized, among other

things, the .30-30 rifle. They also found .30-30 shell casings

in the field where Officer James Lamance was shot. John Beene, a

criminalist with the Texas Department of Public Safety, performed

ballistics tests on the shell casings and the rifle, and he

concluded that the shell casings found at the scene of the

shooting were fired from the .30-30 rifle found in Hicks’s house.

Hicks was tried in state court for the capital murder of

Officer James Lamance. A jury found him not guilty of capital

murder and related offenses. On October 10, 2002, a federal

grand jury sitting in Sherman, Texas returned an eight-count

indictment against Hicks for possessing firearms and ammunition

while he was subject to a domestic restraining order, in

violation of 18 U.S.C. § 922(g)(8). Hicks was subject to a

domestic restraining order at the time of the shooting as a

result of an incident in which he fired gunshots at his ex-wife’s

home in Bonham, Texas. The restraining order, which his ex-wife

obtained on April 25, 2000, was valid for a period of two years

and prohibited Hicks from possessing either firearms or

ammunition.

On November 14, 2002, Hicks filed four pre-trial motions in

federal district court: (1) a motion to suppress evidence; (2) a

motion to dismiss the indictment; (3) a motion to exclude the

testimony of John Beene, the government’s ballistics expert; and

5 (4) a motion in limine to exclude evidence of Officer James

Lamance’s death. On December 17, 2002, Hicks filed a

supplemental motion to dismiss the indictment, in which he stated

new grounds for dismissal, including a collateral attack on the

validity of the underlying protective order. Subsequently, the

district court denied Hicks’s motions to dismiss, motion to

exclude the expert testimony of John Beene, and motion to

suppress. Immediately before trial, Hicks once again attempted

to limit the admission of evidence regarding Officer Lamance’s

death on relevancy grounds. In response to this request, the

district court limited the government’s use of its evidence

relating to Officer Lamance and decided to instruct the jury that

Hicks had been found not guilty of murder in state court.

On January 14, 2003, after approximately three hours of

deliberation, the jury found Hicks guilty on all eight counts.

On February 3, 2003, Hicks moved for a new trial and judgment of

acquittal. The district court denied both requests.

The district court then conducted a two-day sentencing

hearing where both the government and Hicks presented evidence

about the cause of Office Lamance’s death. At the end of the

hearing, the district court found that Hicks killed Officer

Lamance and, accordingly, the court applied United States

Sentencing Guideline (“U.S.S.G.”) § 2K2.1(c)(1)(B)’s homicide

cross-reference provision, finding that Hicks’s conduct was most

analogous to second-degree murder. The district court then

6 downwardly departed, arriving at a total sentence of 180 months.

Specifically, the court sentenced Hicks to 120 months’

incarceration for count one, sixty of which were to be served

consecutively to the sentence for counts two through eight (120

months per count to be served concurrently). Hicks also received

eight concurrent three-year terms of supervised release and an

$800 special assessment.

The district court entered its judgment on May 2, 2003.

Hicks filed a notice of appeal the same day. In his appeal,

Hicks claims that the district court erred by: (1) admitting

evidence of Officer James Lamance’s death; (2) allowing John

Beene, the government’s ballistics expert, to testify at trial;

(3) denying Hicks’s motion to suppress evidence; (4) applying the

Sentencing Guideline’s second-degree murder guideline at

sentencing; (5) sentencing Hicks to consecutive sentences; (6)

failing to find that the evidence was insufficient for a

conviction; and (7) finding that Hicks’s challenge to the

validity of the underlying protective order was barred by Fifth

Circuit precedent. Below, the court addresses each of Hicks’s

allegations in turn.

II. EVIDENCE OF OFFICER JAMES LAMANCE’S DEATH

Hicks begins by alleging that the district court erred by

(1) allowing the government to introduce evidence of Officer

7 James Lamance’s death while (2) preventing Hicks from introducing

evidence that he was not responsible for Officer Lamance’s

death.1

This court reviews a district court’s evidentiary decisions

for an abuse of discretion. United States v. Pace, 10 F.3d 1106,

1115 (5th Cir. 1993). Even where the district court erroneously

admitted prejudicial evidence, the defendant’s conviction will

not be reversed if the error was harmless. See id. at 1116.

Hicks first contends that the district court should not have

allowed the government to introduce evidence of Officer James

Lamance’s death at trial. According to Hicks, this evidence

should have been excluded under FED. R. EVID. 402 as irrelevant

and under FED. R. EVID. 403 as substantially more prejudicial than

probative. Hicks also contends that the district court’s

limiting instruction, which cautioned the jury that Hicks was not

on trial for murder and had been previously acquitted of murder

in state court, was insufficient to cure the prejudicial

admission of this evidence.2

1 Hicks addresses these issues separately in his appellate brief. For the ease of discussion, the court considers them together. 2 The district court gave the jury the following limiting instruction:

Members of the jury, the Defendant is not on trial in this case for murdering anyone. He was charged in a state court with having done so and he was found not guilty. This testimony that you are now hearing is admitted for the purpose of considering, your

8 When confronted with potentially prejudicial evidence, a

trial court must conduct a balancing test under FED. R. EVID. 403

to determine whether the probative value of the evidence is

outweighed by its undue prejudicial effect. United States v.

Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). Speaking generally

about the admission of “other acts” evidence--such as the

evidence in question suggesting that Hicks murdered Officer

Lamance--this court has stated:

One of the dangers inherent in the admission of “other acts” evidence is that the jury might convict the defendant “not for the offense charged but for the extrinsic offense.” This danger is particularly great where . . . the extrinsic activity was not the subject of a conviction; the jury may feel that the defendant should be punished for that activity even if he is not guilty of the offense charged.

United States v. Ridlehuber, 11 F.3d 516, 521 (5th Cir. 1993)

(citations and internal quotation marks omitted). While “other

acts” evidence can be prejudicial, here it is unclear how the

admission of evidence regarding Officer Lamance’s death would

prejudice Hicks. Based on the evidence presented at trial, the

jury could not have concluded that Hicks was responsible for

Officer Lamance’s death unless it also concluded that he

possessed the ammunition in question. Thus, the traditional

rationale for excluding “other acts” evidence--that if the jury

was led to believe that the defendant committed one bad act, it

consideration insofar as you deem it relevant, as to whether or not the Defendant possessed two live cartridges on the morning of [December 23, 2000].

9 might unfairly find that he committed another separate bad act--

is inapplicable to this case. Additionally, the admission of

evidence regarding Officer Lamance’s death was reasonably

necessary for the jury to understand why Officer Lamance was not

available to testify. The evidence was, therefore, relevant, and

the district court did not abuse its discretion by concluding

that its probative value was not substantially outweighed by the

danger of unfair prejudice. Furthermore, the district court did

not abuse its discretion by giving the jury a limiting

instruction regarding this evidence. See United States v.

Sprick, 233 F.3d 845, 856 (5th Cir. 2000) (holding that in order

to mitigate any unfair prejudice, a trial court may give a

limiting instruction).

Even if the district court did err when it admitted evidence

regarding Officer Lamance’s death--something this court does not

conclude--we still would not reverse Hicks’s conviction because

ample other evidence was introduced from which the jury could

conclude that Hicks possessed two live rounds of .30-30

ammunition on the night in question, thereby making the error

harmless.3

3 This evidence includes, inter alia: (1) Hicks’s past pattern of high-speed chases leading from the Dusty Saddle to the field where the shots were fired; (2) Hicks’s recent purchase of a new white pickup truck and the fact that the truck from which the shots were fired was also new and white; (3) Deputy Robbins’s testimony that he followed a white truck from the road adjacent to the scene of the shooting to Hicks’s garage; (4) the ballistics expert’s testimony that the .30-30 casings found in

10 Hicks fares no better when arguing that the district court

erred by not permitting him to introduce expert evidence that he

did not kill Officer Lamance because Lamance was shot by a

handgun rather than by a .30-30 rifle. Because Hicks presents no

proof that he attempted to offer this evidence at trial or that

the district court made it known that it would not revisit the

question of whether this evidence was admissible, Hicks has

failed to preserve this issue for appeal and the plain error

standard of review applies. See United States v. Jimenez, 256

F.3d 330, 342-43 (5th Cir. 2001) (“Objecting to an in limine

order excluding testimony or evidence does not relieve a party

from making an offer of proof [at trial] . . . [unless] the trial

court makes clear that it does not wish to hear further argument

on the issue.”). Hicks has pointed to no error whatsoever

committed by the district court when it ruled that Hicks’s

evidence was inadmissable. Moreover, there was a good reason for

excluding this evidence: admitting it could have confused the

issues before the jury by focusing its attention on whether

Officer Lamance died from shots fired from the truck or from

friendly fire, an issue irrelevant to the question of whether

Hicks possessed a gun and live .30-30 ammunition on the night in

question. Accordingly, the district court did not err by

the field were fired from the gun seized in Hicks’s son’s bedroom; and (5) the fact that Hicks was alone inside his house after the truck entered the garage.

11 excluding this evidence.

III. THE TESTIMONY OF BALLISTICS EXPERT JOHN BEENE

Hicks next contends that the district court abused its

discretion by admitting, over his pre-trial and trial objections,

the testimony of the government’s ballistics expert, John Beene.

Hicks asserts that Beene’s testimony--concluding that the bullet

casings in the field were fired from the .30-30 rifle found in

Hicks’s son’s bedroom--should have been excluded under FED. R.

EVID. 702 because Beene was not qualified to render an expert

opinion on shell casing comparisons. Further, Hicks claims that

the government failed to demonstrate that the method Beene

employed when comparing the casings met the criteria for

reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993).4

This court reviews a district court’s decision to admit

expert testimony under an abuse-of-discretion standard. Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“[This]

standard applies as much to the trial court’s decisions about how

to determine reliability as to its ultimate conclusion.”). “If

we find an abuse of discretion in admitting the evidence, we

consider any error under the harmless error doctrine, affirming

the judgment unless the ruling affected a substantial right of

4 Hicks argues in separate sections of his appellate brief that (1) Beene was unqualified to render an expert opinion and (2) Beene’s methodology was unreliable. The court will discuss these related issues together.

12 the complaining party.” United States v. Norris, 217 F.3d 262,

268 (5th Cir. 2000).

Hicks argues that John Beene’s shell casing comparison

technique did not meet the criteria for reliability set forth in

Daubert for several reasons. First, he contends that Beene could

not say: (1) if the technique had ever been empirically tested;

(2) if the technique had been published in a peer-reviewed

article; (3) if any studies have been performed to calculate the

rate of error for the technique; and (4) if any standards exist

for making shell-casing-to-firearm comparisons.5 Hicks also

notes that Beene admitted that he had read articles and heard

presentations critiquing shell casing comparisons precisely

because no objective standards or criteria exist for making

matches. Moreover, Hicks argues that Beene’s application of the

casing comparison technique in this case was particularly

unreliable because Beene could not remember (even when looking at

his notes) how many marks he used to make the match, how wide or

deep the markings were, and precisely where the marks were

located on the casings. Additionally, Hicks notes that Beene

admitted that he did not test-fire other .30-30 rifles to exclude

markings that were not unique to the rifle found at Hicks’s

5 Hicks originally raised these issues at the state-court Daubert hearing during his trial for Officer Lamance’s murder. The district court based its decision to admit Beene’s expert testimony on the evidence presented at this state-court Daubert hearing.

13 house. Finally, Hicks challenges Beene’s qualifications,

alleging that Beene was not qualified as an expert to testify

that shell casings discovered at the crime scene were fired from

the rifle found at Hicks’s home.

As for Hicks’s challenge to Beene’s qualifications as a

ballistics expert, there was more than ample evidence to permit

the district court to find that he is a qualified ballistics

expert. This court has held that “[t]o qualify as an expert,

‘the witness must have such knowledge or experience in [his]

field or calling as to make it appear that his opinion or

inference will probably aid the trier in his search for truth.’”

United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)

(second alteration in original) (quoting United States v.

Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978)). Additionally,

FED. R. EVID. 702 states that an expert may be qualified based on

“knowledge, skill, experience, training, or education . . . .”

See also Kuhmo Tire Co., 526 U.S. at 151 (discussing witnesses

whose expertise is based purely on experience). At the state-

court Daubert hearing, Beene testified that he had a degree in

chemistry, had received training in firearms comparisons testing

from the FBI, and had done firearms examinations for over twenty

years. At Hicks’s trial in federal court, Beene repeated most of

these claims, adding that he had performed more than a thousand

cartridge-firearm comparisons in the course of his twenty-eight-

year career with the Texas Department of Public Safety without a

14 suggestion that any of his matches were incorrect. Based on

Beene’s training, twenty-eight years of experience, and numerous

prior cartridge comparisons, the district court did not abuse its

discretion in allowing him to testify as an expert at trial.

Turning to Hicks’s attack on the reliability of Beene’s

methodology, the court notes that under FED. R. EVID. 702, expert

testimony is permissible if the district court finds, pursuant to

Rule 104(a), that the expert is testifying to (1) scientific

knowledge that (2) will assist the trier of fact to understand or

determine a fact issue. Daubert, 509 U.S. at 592. “Under

Daubert, Rule 702 charges trial courts to act as ‘gate-keepers,’

[and to] mak[e] a ‘preliminary assessment of whether the

reasoning or methodology underlying the testimony is

scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’” Pipitone v.

Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (quoting

Daubert, 509 U.S. at 592-93).

In Daubert, the Supreme Court announced several factors

that courts should consider when exercising their gate-keeping

function, including: (1) whether the technique in question has

been tested; (2) whether the technique has been subjected to peer

review and publication; (3) the error rate of the technique; (4)

the existence and maintenance of standards controlling the

technique’s operation; and (5) whether the technique has been

generally accepted in the scientific community. Daubert, 509

15 U.S. at 593-94. The proponent of expert testimony--here, the

government--has the burden of showing that the testimony is

reliable. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276

(5th Cir. 1998) (en banc). To show that expert testimony is

reliable, however, the government need not satisfy each Daubert

factor. As the Supreme Court has stated, the test of reliability

“is ‘flexible,’ and Daubert’s list of specific factors neither

necessarily nor exclusively applies to all experts or in every

case. Rather, the law grants a district court the same broad

latitude when it decides how to determine reliability as it

enjoys in respect to its ultimate reliability determination.”

Kumho Tire Co., 526 U.S. at 141 (emphasis in original).

Reaffirming the latitude given to trial judges to determine

reliability, the Supreme Court further stated in Kumho Tire that

“whether Daubert’s specific factors are, or are not, reasonable

measures of reliability in a particular case is a matter that the

law grants the trial judge broad latitude to determine.” Id. at

153.

In support of his claim that Beene’s methodology is

unreliable, Hicks invites the court’s attention to Sexton v.

Texas, 93 S.W.3d 96 (Tex. Crim. App. 2002). Sexton, however, is

inapposite. In Sexton, the Texas Court of Criminal Appeals

assessed the reliability of the technique of using magazine

markings to connect spent shell casings found at a crime scene

with live shell casings found at another location. The expert in

16 Sexton had testified that certain spent shell casings and live

shell casings had at one time been in the same magazine or

magazines because they had similar magazine marks; however, the

magazines that allegedly made those marks were never found.

Similarly, the gun used to shoot the spent shell casings was

never found. The Texas Court of Criminal Appeals held that the

expert’s methodology was not proven to be reliable given that the

absence of the magazines rendered the expert unable to make test

marks for comparison. Id. at 101. Hicks’s case is wholly

distinguishable from Sexton because the .30-30 rifle suspected of

having produced the spent shell casings was available and was

used for purposes of comparison testing.

Moreover, the matching of spent shell casings to the weapon

that fired them has been a recognized method of ballistics

testing in this circuit for decades. See United States v.

Washington, 550 F.2d 320, 324 (5th Cir. 1977) (“firearms expert

testified that the shell casing found in the trunk of the Mercury

Comet had been fired from the pistol ‘to the exclusion of all

other weapons in existence’”); see also United States v. Lopez-

Escobar, 920 F.2d 1241, 1243 (5th Cir. 1991) (observing that the

district court directed the prosecutor to arrange a comparison of

a casing found near the scene of the arrest and casings to be

test-fired from a specific gun). We have not been pointed to a

single case in this or any other circuit suggesting that the

methodology employed by Beene is unreliable.

17 Additionally, standards controlling firearms comparison

testing exist. As Beene testified at the state-court Daubert

hearing, he followed well-accepted methods and scientific

procedures in making his comparisons. He also testified in

federal court that the Association of Firearm and Tool Mark

Examiners produces literature about firearms comparison testing

that he relied on and that is authoritative in the field of

firearms and tool mark examination. Further buttressing the

reliability of his methodology, Beene also testified at the

state-court Daubert hearing that the error rate of firearms

comparison testing is zero or near zero.

Based on the widespread acceptance of firearms comparison

testing, the existence of standards governing such testing, and

Beene’s testimony about the negligible rate of error for

comparison tests, the district court had sufficient evidence to

find that Beene’s methodology was reliable. Accordingly, it did

not abuse its discretion by admitting his testimony.

IV. HICKS’S MOTION TO SUPPRESS EVIDENCE

Hicks next argues that the district court erred by denying

his motion to suppress. In his motion to suppress, Hicks claimed

that the police seized evidence, including the .30-30 rifle, from

his house in the absence of either a warrant or exigent

circumstances. Based on a transcript of testimony presented at

the state-court suppression hearing (when Hicks was tried for

18 Officer Lamance’s murder), the district court denied Hicks’s

motion to suppress, concluding that exigent circumstances

justified the warrantless entry into Hicks’s home that led to the

seizure of the evidence. Hicks now claims that the district

court reached this conclusion in error.

When a defendant challenges the denial of a motion to

suppress, this court reviews the district court’s findings of

fact for clear error and its conclusions of law de novo. United

States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004) (per

curiam). Under the Fourth Amendment, it is “presumptively

unreasonable” for law enforcement officers to enter a suspect’s

home in order to arrest him without a warrant. Payton v. New

York, 445 U.S. 573, 586 (1980). “[T]he presence of exigent

circumstances may justify a warrantless entry into a home for the

purposes of arrest,” however, if there is probable cause to

believe the suspect has committed a crime.6 United States v.

Vasquez, 953 F.2d 176, 179 (5th Cir. 1992). Because the

determination of whether exigent circumstances exist is highly

fact-specific, this court will not reverse a district court’s

finding of exigency unless it is clearly erroneous. Id.7

6 Hicks does not appeal the district court’s probable cause determination. Hence, this court will only consider his challenge to the district court’s finding that exigent circumstances existed. 7 In Tamez v. City of San Marcos, 118 F.3d 1085, 1094 (5th Cir. 1997), a panel of this court adopted a bipartite standard of review for exigency: first, it examined the district

19 According to Hicks, the police violated his Fourth Amendment

rights by engaging a SWAT team to enter his home to arrest him in

the absence of either an arrest warrant or exigent circumstances.

Additionally, based on his allegation that the firearms the

police officers observed through a window of his home were made

visible by the SWAT team’s actions during his arrest,8 he

contends that the subsequent search warrant, which was based on

the SWAT team’s observations, was invalid. Thus, he argues that

the evidence seized from his house pursuant to the search

warrant, including the .30-30 rifle, should have been suppressed

as the fruits of a poisonous tree. In support of these claims,

Hicks contends that the district court’s finding of exigency was

erroneous, especially in light of the fact that the SWAT team

waited nearly five hours from the time that the police arrived at

his home until it entered his house and arrested him. According

to Hicks, nothing happened during these five hours, and the

police could easily have used this time to obtain a warrant.

court’s underlying factual findings for clear error; second, it examined the district court’s ultimate determination of exigency de novo. Vasquez, however, was decided before Tamez and has been regularly followed in this circuit. See, e.g., United States v. Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (applying the standard of review found in Vasquez). Accordingly, this court will use the clearly erroneous standard of review found in Vasquez. 8 Hicks does not explain this theory on appeal. In his motion to suppress, he contended that the SWAT team shot a hole in the window of his son’s bedroom where several shotguns were stored in a gun rack. He further claimed that the officer whose affidavit was used to obtain the search warrant was only able to view these firearms by peering through this hole in the window.

20 In this circuit, exigent circumstances exist when the

“societal costs of obtaining a warrant . . . outweigh the reasons

for prior recourse to a neutral magistrate.” United States v.

Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (quoting Arkansas v.

Sanders, 442 U.S. 753, 759 (1979)). Accordingly, this court has

held that “[e]xigent circumstances include those in which

officers reasonably fear for their safety, where firearms are

present, or where there is a risk of a criminal suspect’s

escaping or fear of destruction of evidence.” United States v.

Rico, 51 F.3d 495, 501 (5th Cir. 1995).

Based on this circuit’s understanding of when exigent

circumstances exist, the district court did not clearly err in

finding that exigent circumstances justified the SWAT team’s

warrantless entry into Hicks’s home. First and foremost, the

officers were confronted with a suspect who they believed had

just shot and killed a fellow police officer. See Welsh v.

Wisconsin, 466 U.S. 740, 753 (1984) (holding that “an important

factor to be considered when determining whether any exigency

exists is the gravity of the underlying offense for which the

arrest is being made”). Moreover, the officers reasonably

believed that Hicks was armed and dangerous. See Rico, 51 F.3d

at 501 (holding that the presence of firearms is a factor

militating in favor of a finding of exigency). The officers also

had reason to believe that Hicks had gone to great lengths in the

past to avoid capture. Likewise, although the officers had

21 information that Hicks was likely alone in the home, they did not

know for certain whether there were any other persons inside.

Finally, Hicks’s characterization of the stand-off as simply a

five-hour period where nothing happened is disingenuous. In

fact, the record shows that the SWAT team organizer was notified

at 2:00 a.m. that the team was needed. Once the team was

assembled at the sheriff’s office and all of the relevant

equipment was gathered, it left for Hicks’s home at approximately

3:45 or 4:00 a.m. The team then formulated its plan of action,

and it conducted visual, aerial, and thermal surveillance to

determine the least-risky way of entering Hicks’s home. Finally,

it fired tear gas and pepper spray into Hicks’s home and, after

this did not work, it entered the home. In light of the fact

that the police believed that Hicks was armed, had just killed a

police officer, and did not want to be captured, exigent

circumstances existed and the SWAT team had no reason to delay

entry into Hicks’s house once it was ready to act. See Warden v.

Hayden, 387 U.S. 294, 298-99 (1967) (“The Fourth Amendment does

not require police officers to delay in the course of an

investigation if to do so would gravely endanger their lives or

the lives of others.”); Rico, 51 F.3d at 501. Accordingly, the

district court did not err when it found that exigent

circumstances justified the SWAT team’s entry into Hicks’s home.

Hicks similarly fails in arguing that observations made by

the SWAT team during and after its warrantless entry into his

22 house were improperly used as the basis for a subsequent search

warrant. According to Hicks, the judge who issued the search

warrant should not have relied on these observations to support a

finding of probable cause because they were obtained during an

illegal search. As discussed above, however, exigent

circumstances justified the SWAT team’s warrantless entry into

Hicks’s house, and the guns inside Hicks’s house were in plain

view during the SWAT team’s protective sweep of the house

incident to Hicks’s arrest. See Maryland v. Buie, 494 U.S. 325,

327 (1990) (defining a “protective sweep” as “a quick and limited

search of a premises, incident to an arrest and conducted to

protect the safety of police officers or others”). The

observations in question were not, therefore, made during an

illegal search. Accordingly, Hicks has shown no error on the

part of the district court in denying his motion to suppress.

V. APPLICATION OF THE SECOND-DEGREE MURDER GUIDELINE

Hicks next contends that the district court erred at

sentencing when it overruled his objection to the use of U.S.S.G.

§ 2A1.2, the second-degree murder guideline, to increase his

offense level. Specifically, Hicks alleges that the district

court erred by: (1) using the second-degree murder guideline

instead of the manslaughter guideline; and (2) applying the

second-degree murder guideline without first requiring proof

beyond a reasonable doubt that Hicks committed second-degree

23 murder.9

This court reviews a district court’s factual findings

during sentencing for clear error and its interpretation of the

Sentencing Guidelines, including its application of the cross-

reference provisions of § 2K2.1(c), de novo. See United States

v. Levario-Quiroz, 161 F.3d 903, 905 (5th Cir. 1998). “A

sentence will be upheld unless it was imposed in violation of

law, was an incorrect application of the sentencing guidelines,

or is outside the range of the applicable sentencing guideline.”

United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).

Hicks contends that the district court improperly applied

U.S.S.G. § 2K2.1(c)(1)(B)’s cross-reference provision when it

used the guideline for second-degree murder (U.S.S.G. § 2A1.2)

rather than the guideline for involuntary manslaughter (U.S.S.G.

§ 2A1.4) to determine his offense level. Under U.S.S.G. § 2K2.1,

which applies to federal firearms offenses, “[i]f the defendant

used or possessed any firearm or ammunition in connection with

the commission . . . of another offense [and] . . . if death

resulted,” a district court should apply “the most analogous

[homicide] offense guideline” to determine the defendant’s base

offense level, provided that the resulting offense level is

greater than the otherwise-applicable level under § 2K2.1.

9 Hicks raises these issues separately in his appellate brief. The court considers them together for the ease of discussion.

24 U.S.S.G. § 2K2.1(c)(1)(B) (2002). After conducting a hearing on

the question of Hicks’s involvement in Officer Lamance’s death,

the district court found that Officer Lamance was killed by a

.30-30 round fired by the driver of the white pickup truck that

the police had chased. Because the jury had previously

concluded, beyond a reasonable doubt, that Hicks was the driver

in question, the district court found that Hicks killed Officer

Lamance. Specifically, the court concluded that Hicks saw the

light bar on top of Officer Lamance’s patrol car and shot at it,

killing him. The court then found that Hicks’s conduct was more

analogous to second-degree murder than to involuntary

manslaughter, and it calculated Hicks’s base offense level under

the second-degree murder guideline (U.S.S.G. § 2A1.2). According

to Hicks, the district court erred by using this guideline.

Hicks contends that the district court erred by applying

U.S.S.G. § 2A1.2 for two reasons. First, he asserts that, in

light of the evidence presented at trial and in the sentencing

hearing, the “most analogous” offense to what he allegedly

committed was involuntary manslaughter, an offense that has a

significantly lower base offense level than second-degree murder.

Second, he argues that the district court erred by not requiring

the government to demonstrate beyond a reasonable doubt that he

caused Officer Lamance’s death. Hicks alleges that this failure

led to a violation of his due process rights. He also claims

25 that the district court should have used the beyond-a-reasonable-

doubt standard because he had been previously acquitted of murder

in state court. Finally, Hicks buttresses these arguments in a

supplemental brief by referencing Blakely v. Washington, 124

S.Ct. 2531 (2004), which he claims stands for the propositions

that, under the Sentencing Guidelines: (1) a sentence cannot be

enhanced on the basis of a fact not alleged in the indictment;

and (2) any fact used to increase a sentence should be submitted

to the jury and proven beyond a reasonable doubt. Since the

federal jury did not find that Hicks killed Officer Lamance, he

argues that the district court’s use of the second-degree murder

guideline (based solely on its finding that Hicks killed Officer

Lamance) was improper in light of Blakely.

The court first turns to Hicks’s claim that the district

court erred when it computed his sentence using the second-degree

murder guideline (U.S.S.G. § 2A1.2) rather than the involuntary

manslaughter guideline (U.S.S.G. § 2A1.4). In applying the

cross-reference provisions of U.S.S.G. § 2K2.1(c), the district

court was required to determine what federal homicide offense was

most analogous to the conduct it found that Hicks had committed.

Cf. United States v. Perez, 897 F.2d 751, 753 n.2 (5th Cir. 1990)

(discussing a prior version of U.S.S.G. § 2K2.1(c)(1)). Under

federal law, the distinction between second-degree murder and

involuntary manslaughter turns on whether the defendant committed

26 the killing with “malice” or with a reduced level of culpability.

See United States v. Browner, 889 F.2d 549, 551-52 (5th Cir.

1989). Second-degree murder is defined as “the unlawful killing

of a human being with malice aforethought.” 18 U.S.C. § 1111(a)

(2000). Malice aforethought “encompasses three distinct mental

states: (1) intent to kill; (2) intent to do serious bodily

injury; and (3) extreme recklessness and wanton disregard for

human life (‘depraved heart’).” Lara v. United States Parole

Comm’n, 990 F.2d 839, 841 (5th Cir. 1993). Conversely, to be

convicted of involuntary manslaughter, a defendant must have:

(1) act[ed] with gross negligence, meaning a wanton or reckless disregard for human life, and (2) [had] knowledge that his or her conduct was a threat to the life of another or knowledge of such circumstances as could reasonably have enabled the defendant to foresee the peril to which his or her act might subject another.

United States v. Fesler, 781 F.2d 384, 393 (5th Cir. 1986).

Based on the factual findings made by the district court at

sentencing (which Hicks does not argue are clearly erroneous),

the district court did not err when it applied the second-degree

murder guideline rather than the manslaughter guideline. By

intentionally firing his gun at Officer Lamance’s police cruiser,

which Hicks likely knew to be occupied because it had just been

driven up to the field, Hicks displayed the requisite extreme

recklessness and disregard for human life that constitutes malice

under federal law sufficient for a finding of second-degree

27 murder. See United States v. Shaw, 701 F.2d 367, 392 n.3, 393

(5th Cir. 1983) (“[T]o support a conviction for either first or

second degree murder, the government need only prove that Shaw

intended to shoot at the passing car with a ‘heart . . . without

regard for the life and safety of others.’”) (second alteration

in original) (quoting United States v. Hinkle, 487 F.2d 1205,

1207 (D.C. Cir. 1973)). Accordingly, Hicks’s contention that the

district court erred by applying the second-degree murder

guideline rather than the manslaughter guideline fails.

Hicks’s contention that the district court erred by applying

the second-degree murder guideline at sentencing without

requiring proof beyond a reasonable doubt that he committed

second-degree murder is similarly unavailing. With respect to

Hicks’s claim that the district court’s use of a lower standard

of proof violated his Fifth Amendment due process rights, the

court notes that it is well-settled in this circuit that a

district court may increase a defendant’s sentence under the

Sentencing Guidelines based on facts found by the court by a

preponderance of the evidence, provided that the resulting

sentence does not exceed the statutory maximum expressed in the

U.S. Code. See United States v. Kinter, 235 F.3d 192, 201 (5th

Cir. 2000); see also United States v. Pineiro, 377 F.3d 464, 472-

73 (5th Cir. 2004), petition for cert. filed (July 14, 2004) (No.

04-5263) (refusing to hold that the Supreme Court’s decision in

28 Blakely altered this ruling).

As for Hicks’s contention that the district court should

have applied a heightened standard of proof because he had been

acquitted of murder in state court, this contention fails for two

reasons. First, the fact that a state jury acquitted Hicks of

capital murder does not mean that he did not commit second-degree

murder under federal law, since the standard for capital murder

in Texas is higher than the standard for the federal offense of

second-degree murder. Compare TEX. PENAL CODE ANN. §§ 19.02(b)(1),

19.03(a) (Vernon 2003) (requiring for capital murder that the

defendant “intentionally or knowingly cause[d] the death of an

individual”); with Lara, 990 F.2d at 841 (holding that death

caused by extreme recklessness and a disregard for human life is

sufficient for second-degree murder under federal law). Second,

this court has explicitly held that a state-court jury’s

acquittal of a defendant for a specific crime “does not preclude

the district court from finding in a sentencing hearing,” by a

preponderance of the evidence, that “[he] did commit that

offense.” United States v. Branch, 91 F.3d 699, 742-43 (5th Cir.

1996) (applying a similar cross-reference provision of U.S.S.G. §

2K2.1(c)). Accordingly, the district court did not err by

applying the second-degree murder guideline to Hicks’s sentence

without requiring proof beyond a reasonable doubt that he

committed second-degree murder.

29 VI. THE USE OF CONSECUTIVE SENTENCES

Hicks next argues that the district court violated his Fifth

and Sixth Amendment rights by sentencing him to a total of 180

months’ imprisonment when the statutory maximum penalty for each

count of the indictment was ten years.

This court reviews a district court’s application of the

Sentencing Guidelines, including its decision to run sentences

consecutively, de novo. United States v. Garcia, 322 F.3d 842,

845 (5th Cir. 2003).

In calculating Hicks’s offense level, the district court

began by adding two points to his base offense level of fourteen

for the possession of three to seven firearms. The district

court then added four points under U.S.S.G. § 2K2.1(b)(5) for the

use or possession of a firearm or ammunition in connection with

another felony offense. Next, the district court applied the

cross-reference under U.S.S.G. § 2K2.1 based on the death of an

officer to count eight, finding the second-degree murder

guideline to be most applicable. As a result, Hicks’s base

offense level was set at thirty three. The district court then

added three additional levels under U.S.S.G. § 3A1.2(b)(1) for

the involvement of a law enforcement officer, giving Hicks a

total offense level of thirty six. Because of Hicks’s criminal

history category (Category I), the district court arrived at a

guideline range of 188-235 months’ imprisonment. Finally, the

30 district court downwardly departed from this range because it

felt that this case was outside of the heartland of cases

contemplated by the Sentencing Guidelines, sentencing Hicks to

180 months’ imprisonment (120 months on each count with 60 months

of count one to be served consecutively to the other counts).

Hicks contends that the district court improperly sentenced

him to 180 months because the statutory maximum under the U.S.

Code for each count was ten years. According to Hicks, if count

eight was not considered in the district court’s sentencing

calculation, the cross-reference under § 2K2.1 and the additional

three levels under § 3A1.2 would not have applied, resulting in a

total base offense level of sixteen. Hicks then argues that

using the district court’s finding that he was responsible for

Officer Lamance’s death as the basis for enhancing his sentence

under count eight to a sentence above the statutory maximum

applicable to each individual count violated his due process and

jury trial rights, as well as the Supreme Court’s holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court properly sentenced Hicks to 180 months’

imprisonment. Since the offense level for counts one through

eight largely depended on the total quantity of firearms

involved, U.S.S.G. § 3D1.2 instructs the district court to group

these counts together for sentencing purposes. See U.S.S.G.

§ 3D1.2(d) (grouping together offenses covered by U.S.S.G.

31 § 2K2.1). Thus, the district court’s calculation of Hicks’s

sentence, although ultimately guided by the cross-reference to

second-degree murder and by the count-eight enhancement for the

involvement of a police officer, logically encompassed Hicks’s

conduct on all eight charges. Moreover, since the resultant

minimum total punishment required by the Sentencing Guidelines,

188 months, exceeded the statutory maximum for each count in the

indictment (ten years per count), the district court was required

to “impose consecutive sentences to the extent necessary to meet

the minimum total punishment [under the Guidelines].” United

States v. Garcia, 322 F.3d at 845. The only exception to this

rule, which the district court employed to Hicks’s benefit,

derives from the court’s authority to depart downwardly. See

United States v. Martinez, 950 F.2d 222, 226 (5th Cir. 1991)

(stating that “sentencing courts retain at least some discretion

under [18 U.S.C.] § 3584 [regarding the imposition of] concurrent

sentence[s], but that discretion is limited to the district

court’s power to depart from the Guidelines”).

Not only was the district court’s discretion in sentencing

Hicks curtailed by this circuit’s precedent, but Hicks’s argument

that the district court violated Apprendi--by increasing his

sentence beyond the statutory maximum based solely on factors

found by the judge and not by the jury--is similarly precluded by

circuit precedent. In United States v. McWaine, 290 F.3d 269,

32 276 (5th Cir. 2002), this court adopted the Second Circuit’s

position that Apprendi “poses no obstacle to guideline

calculations that do not result in a sentence exceeding the

statutory maximum on any single count. This is true even when

the total punishment exceeds the statutory maximum on any

particular count.” Id. (internal citations omitted). Thus, as

long as the district court’s sentence for each count did not

exceed the statutory maximum, Apprendi is not violated even

though the calculation is partly based on factors found by a

judge rather than by a jury. Id.; see also Pineiro, 377 F.3d at

472-73. Accordingly, because Hicks’s sentence on each count did

not exceed the statutory maximum expressed in the U.S. Code, his

Fifth and Sixth Amendment rights were not violated, and the

district court’s sentence was proper.

VII. THE SUFFICIENCY OF THE EVIDENCE

Hicks next argues that the evidence presented at trial was

insufficient to support his conviction under count eight of the

indictment, in which he was charged with possessing two live

Remington .30-30 cartridges while under a protective order. In

support of this claim, Hicks states that no witness identified

him as the driver of the white pickup truck, no one testified to

seeing Hicks fire the weapon that killed Officer Lamance, and the

physical evidence refutes the claim that Hicks was present in the

field on the night in question.

33 In reviewing a claim regarding the sufficiency of evidence,

this court must determine “‘whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Bellew, 369

F.3d 450, 452 (5th Cir. 2004) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). When there is a conflict over testimony,

the court will defer to the fact finder’s resolution with respect

to the weight and credibility of the evidence. United States v.

Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987). To be

sufficient, the evidence need not exclude every reasonable

hypothesis of innocence, so long as the totality of the evidence

permits a conclusion of guilt beyond a reasonable doubt. United

States v. Vasquez, 953 F.2d 176, 181 (5th Cir. 1992).

Hicks contends that the physical evidence presented at trial

directly refuted the allegation that he shot Officer Lamance. In

support of this claim, Hicks references, among other things: (1)

trial testimony regarding the State’s inability to match soil

samples of the field to soil samples on his boots; (2) the

State’s inability to match tire tracks from the field to his

truck’s tires; (3) the absence of bois d’arc material from the

undercarriage of his car when it was clear that the shooter’s

truck had run over such material; and (4) the absence of gunshot

residue on his hands when he was arrested. Hicks also argues

34 that the evidence must be insufficient because he was acquitted

of capital murder by a state jury.

Hicks’s argument that the evidence presented at trial was

insufficient because he was acquitted of capital murder by a

state court is unconvincing. Count eight of the indictment

charged Hicks with the possession of live ammunition while

subject to a protective order, not with murder. Contrary to what

Hicks suggests, the fact that a state-court jury acquitted Hicks

of capital murder says little about whether there was sufficient

evidence to show that he possessed live ammunition on December

23, 2000 (because, e.g., the state-court jury may have believed

that Hicks lacked the requisite intent for capital murder while

simultaneously concluding that he possessed live ammunition on

the night in question). Likewise, Hicks’s claim that the

physical evidence shows that he did not shoot Officer Lamance is

unavailing. As previously discussed, there is more than ample

evidence supporting the determination that Hicks’s possessed live

ammunition on December 23, 2000. For instance, it was shown at

trial that: (1) Hicks led the police on high-speed chases on two

occasions shortly before the shooting, both of which ended in the

field that was the scene of the shooting; (2) Hicks purchased a

new white pickup truck shortly before the shooting that matched

the description of the truck involved in the shooting; (3) after

the shooting, Deputy Robbins spotted a new white pickup truck

35 leaving from the direction of the field, and he followed it to

Hicks’s home; (4) two .30-30 spent casings were found at the

scene, and a .30-30 rifle was seized from Hicks’s residence; and

(5) ballistics tests showed that the two .30-30 casings found at

the scene of the shooting were fired from the .30-30 rifle seized

from Hicks’s home. Thus, when “all reasonable inferences and

credibility choices [are] made in favor of the jury verdict[,]”

it is clear that a rational jury could have found beyond a

reasonable doubt that Hicks was guilty of possessing ammunition

as alleged in count eight of the indictment. United States v.

Strong, 371 F.3d 225, 227 (5th Cir. 2004).

VIII. THE VALIDITY OF THE UNDERLYING PROTECTIVE ORDER

Finally, Hicks contends that the state-court protective

order against him, which is an essential element of each of his

eight convictions under 18 U.S.C. § 922(g)(8), is void because it

was issued by a court lacking subject-matter jurisdiction to

issue it under Texas law.10 The district court held that this

challenge by Hicks to the protective order is barred by Fifth

Circuit precedent. Hicks contends that the district court

reached this legal conclusion in error.

This court reviews a district court’s legal conclusions de

10 Although Hicks stipulated to the existence of the protective order below, he explicitly refused to waive his objection to the order’s legality.

36 novo. United States v. Shelton, 325 F.3d 553, 557 (5th Cir.

2003); United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th

Cir. 1999).

Hicks claims that the court that issued the protective

order--the Fannin County Court--did not have jurisdiction to

issue the order. The district court, however, held that this

challenge to the Fannin County Court’s jurisdiction was barred by

this court’s decision in United States v. Emerson, 270 F.3d 203

(5th Cir. 2001). In Emerson, the defendant asserted that his

firearms conviction should be overturned because the court that

entered the restraining order had implicitly, but not explicitly,

found that he posed a credible threat to his family or a child (a

finding required for a conviction under 18 U.S.C. § 922(g)(8)).

The Emerson court refused to entertain this challenge to the

restraining order because “nothing in section 922(g)(8) suggests

that the validity of the particular predicate court order may be

inquired into in the section 922(g)(8) criminal prosecution.”

Id. at 213. The court then concluded that a defendant “may not

collaterally attack [a] predicate order in [a] section 922(g)(8)

prosecution, at least so long as the order . . . is not so

transparently invalid as to have only a frivolous pretense to

validity.” Id. at 264.

Hicks argues that his collateral attack against the state-

court protective order is not barred by the rule announced in

37 Emerson because the protective order against him was facially

invalid. In support of this claim, he states that his ex-wife

applied for the protective order in the County Court for Fannin

County less than a month after the 336th Judicial District Court

finalized the couple’s divorce. According to Hicks, under Texas

law, his ex-wife was required to file her protective order

application in the same court that had entered the divorce

decree, i.e., the 336th Judicial District Court. See TEX. FAM.

CODE ANN. § 85.063 (West 2002) (after a divorce is complete, an

application for a protective order by a party wishing to obtain

one “shall be filed in the court that rendered the final order

[of divorce] . . . .”); see also Cooke v. Cooke, 65 S.W.3d 785,

790 (Tex. App.--Dallas 2001, no pet.). Thus, Hicks contends that

the Fannin County Court lacked subject-matter jurisdiction over

his wife’s application for a protective order and, accordingly,

the protective order was void ab initio.

Hicks’s argument that the protective order was void ab

initio fails in light of this circuit’s rule against collaterally

attacking protective orders in criminal proceedings brought under

18 U.S.C. § 922. While Emerson is this circuit’s only relevant

precedent directly mentioning § 922(g)(8), the two main cases on

which it relies--Lewis v. United States, 445 U.S. 55 (1980) and

United States v. Chambers, 922 F.2d 228 (5th Cir. 1991)--explain

why Hicks may not collaterally attack the protective order here.

38 In Lewis, a defendant charged as a felon in possession of a

firearm, in violation of the predecessor to § 922(g), argued that

his predicate felony conviction was invalid because he was

deprived of his constitutional right to representation by counsel

when he was convicted of the underlying felony. Lewis, 445 U.S.

at 56-58. The Supreme Court disagreed that this constitutional

error, which it assumed had occurred, affected the defendant’s

status under the statute as a person who had been convicted of a

felony. Id. at 60. Specifically, the Supreme Court found that

the federal firearms statute was meant to prevent all convicted

felons from possessing firearms, regardless of whether the

“felony conviction ultimately might turn out to be invalid,”

since “‘[n]othing on the face of the statute suggests a

congressional intent to limit its coverage to persons [whose

convictions are not subject to collateral attack].’” Id. at 62

Culbert, 435 U.S. 371, 373 (1978)). Concluding that “Congress

clearly intended that the defendant clear his status [as a

convicted felon] before obtaining a firearm,” the Supreme Court

affirmed the defendant’s felon-in-possession conviction without

entertaining the defendant’s collateral attack on the predicate

felony. Lewis, 445 U.S. at 64, 66.

This court extended Lewis’s reasoning to a subsection of

18 U.S.C. § 922 in Chambers, 922 F.2d. at 238. In Chambers, the

39 defendant was convicted of receiving a firearm while “under

indictment for a crime punishable by imprisonment for a term

exceeding one year,” in violation of 18 U.S.C. § 922(n).

Chambers, 922 F.2d at 231 (quoting 18 U.S.C. § 922(n)). After

the jury entered its verdict, Chambers successfully moved in

state court to quash the indictment that formed the basis of his

§ 922(n) conviction by demonstrating that the grand jury was

improperly empaneled under Texas law. On appeal to this court,

Chambers contended that he had not violated § 922(n) because he

was only subject to an invalid indictment on the date he received

the firearm. This court disagreed, holding that “[t]he federal

gun laws . . . focus not on reliability, but on the mere fact of

conviction, or even indictment, in order to keep firearms away

from potentially dangerous persons.” Chambers, 922 F.2d at 238

(alterations in original) (quoting Lewis, 445 U.S. at 67). This

court further observed that, under federal law, a lack of

subject-matter jurisdiction does not generally “render void the

final judgment of a court” unless the court’s attempt to exert

jurisdiction was “a manifest abuse of authority.” Id. at 239.

With these two principles in mind, the court concluded:

[E]ven if Chambers’ state indictment were ultimately held to be so invalid as to confer no jurisdiction whatever on the state court, its pretense to validity was nevertheless not so frivolous or transparent that Chambers could simply ignore it and notwithstanding its pendency engage in the self-help of acquiring a firearm. We believe that Congress, in section 922(n), intended that in such a situation firearms acquisitions be postponed until the validity of the

40 indictment is determined.

Id. at 240.

Like the provisions at issue in Lewis and Chambers, nothing

in the language of 18 U.S.C. § 922(g)(8) indicates that it

applies only to persons subject to a valid, as opposed to an

invalid, protective order. Moreover, when Hicks’s ex-wife

obtained the protective order, it was standard practice for the

Fannin County Court to entertain applications for protective

orders submitted after divorces were rendered by the 336th

Judicial District Court because the District Court sat in Fannin

County only one week per month (it sat in Grayson County for the

rest of the month, including on the day that Hicks’s ex-wife

filed her application for a protective order). Thus, the

protective order at issue had more than a frivolous pretense to

validity. If Hicks truly believed that it was invalid, he should

have objected to the Fannin County Court’s subject-matter

jurisdiction at the original court hearing, appealed the order

for lack of jurisdiction, or sought a writ of mandamus from the

local appellate court before possessing either firearms or

ammunition. See Cooke, 65 S.W.3d at 785, 787-88. Because Hicks

did not take any of these steps, he violated the plain meaning of

18 U.S.C. § 922(g)(8) by possessing firearms and ammunition while

he was subject to a protective order, and his conviction stands.

IX. CONCLUSION

41 For the foregoing reasons, we AFFIRM Hicks’s conviction and

sentence.