United States v. Kevin Massey

849 F.3d 262, 2017 WL 715076, 2017 U.S. App. LEXIS 3227
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 22, 2017
Docket16-40041
StatusPublished
Cited by6 cases

This text of 849 F.3d 262 (United States v. Kevin Massey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kevin Massey, 849 F.3d 262, 2017 WL 715076, 2017 U.S. App. LEXIS 3227 (5th Cir. 2017).

Opinion

JERRY E. SMITH, Circuit Judge:

Kevin Massey challenges .his conviction of possession of a firearm by a convicted felon. We affirm.

I.

Massey participated in an armed citizen group that patrolled the border between the United States and Mexico to deter the entry of illegal aliens. At the time of his arrest, the group was camped near the Sabal Palms Sanctuary on the property of Rusty Monsees. Massey met with Guillermo Aguilar, the program coordinator of the sanctuary, to discuss conducting patrols on its property. Aguilar could not authorize the group to patrol in the sanctuary but told Massey he would not turn them away. Aguilar believed, based on his conversation with Massey, that the patrols were coordinated with the Border Patrol.

Later, while patrolling the sanctuary, Massey encountered the Border Patrol when it responded to a report of illegal aliens in the area. Agent Danny Cantu first encountered a different person on patrol and advised him to leave. During that conversation, fellow Border Patrol Agent Marcos Gonzales fired several shots at another armed patrolman nearby. Cantu responded to the sound of the shots and at that time ran into Massey, who was armed with a Centurion 39 Sporter long rifle.

The Border Patrol seized the firearms carried by Massey and the other patrolmen; Massey was also carrying a Springfield XDS .45 caliber pistol. The encounter was investigated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BAT-FE”). Massey was arrested in the parking lot of the hotel in which he was staying; he informed the agents that he was armed. The arresting agent removed an HS Pro-dukt model XDS .45 caliber handgun from Massey’s front pocket and seized another .45 caliber handgun from his hotel room.

II.

Massey was charged with four counts of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g). He moved to dismiss on the grounds that he was complying with Texas’s felon-in-possession statute and that Section 922(g) is unconsti-. tutional as applied to him. He also maintained that, to satisfy the jurisdictional element of Section 922(g), the government was required to prove more than just that *264 the firearms had traveled in interstate commerce. That motion was denied.

At Massey’s bench trial, evidence was presented that all of the firearms he possessed were manufactured in Vermont or Croatia. The government presented evidence that Massey had a 1988 Texas conviction of burglary of a habitation for which he was sentenced to five years. Massey moved for a directed verdict based on his interstate-commerce theory. The district court denied the motion and found Massey guilty on all counts. Two of the four counts were dismissed on the government’s motion, and judgment was entered against Massey on the remaining two. He was sentenced, within the guideline range, to 41 months’ imprisonment and three years of supervised release.

III.

Massey contends, on three grounds, that there was insufficient evidence to convict him of violating Section 922(g). He claims that the indictment was constructively amended because the government did not prove that his possession of the firearms affected interstate commerce. He asserts that under Texas law, he was permitted to have the firearms because he possessed them on “premises at which the person lives.” Tex. Penal Code § 46.04(a)(2). Finally, he believes it was error for the district court to make no determination on whether his rights had been restored. All three of these theories fail.

A.

Massey’s indictment was not constructively amended, because the language of his indictment mirrored that of the statute of conviction. “[A]n indictment which follows the language of the statute under which it is brought is sufficient to give a defendant notice of the crime of which he is charged.” United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (internal quotation marks omitted). The jurisdictional element of Section 922(g)(1) includes circumstances in which the possession of the firearm was intrastate, but the firearm had previously traveled in interstate commerce, including from the place it was manufactured to the place of the relevant possession. United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996). In contrast, “[a] constructive amendment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged.” United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003).

The wording of Massey’s indictment and the statute are nearly identical. The indictment charged that Massey “did knowingly possess in and affecting interstate commerce a firearm.” The statute’s interstate commerce element requires the defendant to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Pursuant to that indictment, the government put on evidence that Massey’s firearms had traveled to Texas from Vermont and Croatia, where they were manufactured. The indictment was not constructively amended.

B.

The government was not required to prove the legality, under Texas law, of Massey’s possession of the firearms, because that is irrelevant to his conviction under Section 922(g). To convict under Section 922(g)(1), the government must prove three elements: “(1) that the defendant previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that [it] traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005); 18 U.S.C. *265 § 922(g)(1). 1 The statute contains no requirement that the possession be illegal under state law. Texas law is relevant only to evaluating the applicability of Massey’s prior conviction. The prior conviction charged in the indictment was his 1988 Texas conviction of burglary of a habitation, and the government presented evidence of that conviction.

C.

The district court was not required to address whether Massey’s rights had been restored in Texas such that he would be permitted to possess a firearm. Massey does not identify the statutory basis of that claim, but we assume he is referring to the exception to Section 922(g) for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20).

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849 F.3d 262, 2017 WL 715076, 2017 U.S. App. LEXIS 3227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kevin-massey-ca5-2017.