IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________________
No. 93-1557 ___________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY EUGENE KNOWLES,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court for the Northern District of Texas ___________________________________________________ (August 10, 1994)
Before GOLDBERG, KING, and WIENER, Circuit Judges.
GOLDBERG, Circuit Judge:
Fort Worth police officers arrested Rodney Eugene Knowles on
the campus of Eastern Hills High School on April 15, 1992.
Knowles, who had previously been convicted of a felony, was
carrying a fully loaded handgun.
In a two count indictment, federal authorities charged
Knowles with one count of being a convicted felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of
possession of a firearm in a school zone in violation of 18 U.S.C.
§ 922(q)(1)(A). Without entering into a plea agreement, Knowles
pleaded guilty to both counts. The district court sentenced
Knowles to a 63-month term of imprisonment on the possession of a
firearm by a felon count and to an 18-month term of imprisonment on the possession of a firearm in a school zone count. The district
judge ordered the 18-month sentence to be served consecutively to
the 63-month sentence, resulting in a total term of imprisonment of
81 months.
On the same day that he was sentenced, June 11, 1993,
Knowles's attorney filed a Notice of Appeal. In this notice,
Knowles appealed "to the United States Court of Appeals for the
Fifth Circuit from the sentence entered in this matter." Three
days later, on June 14, 1993, the district court entered the
judgment in this case.1 After the district court entered the
judgment, but before any briefs in this appeal had been filed, this
court delivered an opinion in United States v. Lopez, 2 F.3d 1342
(5th Cir. 1993), cert. granted, 114 S. Ct. 1536 (1994). In that
case, we found 18 U.S.C. § 922(q) unconstitutional, stating that
Congress had not properly invoked its power under the Commerce
Clause when it enacted that statute. Id. at 1367-68. In his brief
to this court Knowles took up this argument and asserted that Lopez
requires reversal of his conviction and sentence on the possession
of a firearm in a school zone count. Knowles also argued that the
district court imposed the 18-month sentence on the possession of
a firearm in a school zone count in violation of the federal
1 The fact that Knowles filed his Notice of Appeal before the judgment was entered in this case is of no consequence. Rule 4(b) of the Federal Rules of Appellate Procedure provides that a "notice of appeal filed after the announcement of a decision, sentence, or order--but before entry of the judgment or order--is treated as filed on the date of and after the entry." Accordingly, Knowles's Notice of Appeal will be treated as filed on June 14, 1993, the date that the district court entered the judgment in this case.
2 sentencing guidelines. In its brief, the government did not
question the adequacy of Knowles's Notice of Appeal. The
government responded to both Knowles's Lopez argument and the
contentions based on the sentencing guidelines.
Raising the matter sua sponte at oral argument, see United
States v. Cronan, 937 F.2d 163, 164 (5th Cir. 1991), we requested
the parties to address whether Knowles's Notice of Appeal, which
stated only that Knowles appealed from the "sentence entered in
this matter," was sufficient to allow him to appeal his underlying
convictions and challenge the constitutionality of section 922(q).
The parties addressed this issue in supplemental briefs. Knowles
argued that his Notice of Appeal was adequate to allow him to
challenge his conviction on the possession of a firearm in a school
zone count. Alternatively, Knowles moved for leave to correct or
amend his Notice of Appeal. For its part, the government agreed
that Knowles's Notice of Appeal was sufficient to allow a challenge
to the constitutionality of the conviction based on section 922(q),
but registered its opposition to Knowles's motion to correct or
amend his Notice of Appeal. We will address the adequacy of
Knowles's Notice of Appeal before turning to the other issues
presented in this appeal.
I. Appellate Jurisdiction
Rule 3(c) of the Federal Rules of Appellate Procedure
instructs appellants to "designate the judgment, order or part
thereof appealed from." We have consistently given a liberal
interpretation to this requirement. See, e.g., United States v.
3 Ramirez, 932 F.2d 374, 375 (5th Cir. 1991); see also Smith v.
Barry, 112 S. Ct. 678, 681 (1992) ("Courts will liberally construe
the requirements of Rule 3."). For example, in United States v.
Rochester, 898 F.2d 971 (5th Cir. 1990), we wrote that a "[f]ailure
to properly designate the order appealed from is not a
jurisdictional defect, and may be cured by an indication of intent
in the briefs or otherwise." Id. at 976 n.1. Similarly, in
Turnbull v. United States, 929 F.2d 173 (5th Cir. 1991), we
explained that "a mistake in designating a judgment appealed from
should not bar an appeal as long as the intent to appeal a specific
judgment can be fairly inferred and the appellee is not prejudiced
or misled by the mistake." Id. at 177; see also S.E.C. v. Van
Waeyenberghe, 990 F.2d 845, 847 n.3 (5th Cir. 1993); In Re
Transamerican Natural Gas Corp., 978 F.2d 1409, 1414 (5th Cir.
1992), cert. dismissed, 113 S. Ct. 1892 (1993); Friou v. Phillips
Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
Applying the rules articulated in these cases, we held in
Turnbull that the appellant, who had only appealed from a district
court order that denied a motion for a new trial, could raise
arguments addressing the underlying judgment in that case.
Turnbull, 929 F.2d at 178. We reached an identical result in
United States v. Lopez-Escobar, 920 F.2d 1241 (5th Cir. 1991) and
in Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72 (5th
Cir. 1991).
Our opinion in Ramirez, supra, is particularly instructive
in this case. In that case, the appellant prepared a typewritten
4 notice of appeal stating that he appealed the judgment and his
sentence. The appellant then drew a line through the word
"sentence," leaving intact the portion of the notice of appeal that
referred to the judgment. We granted the appellant's motion to
correct or amend the notice of appeal and allowed him to challenge
the sentence on appeal, despite the fact that he had originally
crossed out the reference to "sentence" in the notice. Ramirez,
932 F.2d at 375. We explained that this action was consistent with
our approach to other similar cases. Id. The appellant had
addressed his challenge to the sentence in his brief and hence had
fairly indicated his intent to appeal the sentence. We also found
that allowing the defendant to challenge the sentence in that case
did not prejudice the government. These factors satisfied our rule
that "when the intent to appeal an unnamed or mislabeled ruling is
apparent (from the briefs or otherwise) and no prejudice results to
the adverse party, the appeal is not jurisdictionally defective."
Id.; see also Turnbull, 929 F.2d at 177.
United States v. Winn, 948 F.2d 145 (5th Cir. 1991), cert.
denied, 112 S. Ct. 1599 (1992) is also illuminating. In that case,
the defendant filed a notice of appeal after the jury returned its
guilty verdict, but before the sentenced was imposed and the
judgment was entered. We held that we had jurisdiction over an
appeal of the defendant's sentence even though the notice of appeal
mentioned only the jury verdict--not the sentence or the judgment
that incorporated it--and even though the notice of appeal was
filed before the sentence had been imposed. We first explained
5 that the defendant's failure to specify expressly in his notice of
appeal that he was appealing his sentence did not ipso facto bar an
appeal of the sentence. Id. at 154. We then examined Ramirez and
found that the defendant could appeal both the conviction and the
sentence. Id. at 155. As in previous cases, the defendant had
briefed the issues that related to his sentence and thereby fairly
expressed his intent to appeal the sentence. Moreover, the
government conceded that it was not misled or prejudiced. We thus
held that the defendant could appeal his sentence.
Some of our cases have suggested that it is more acceptable
to allow a defendant who has appealed only his or her conviction to
contest the sentence than it is to allow a defendant who has only
appealed the sentence to challenge his or her conviction. For
instance, in Ramirez, 932 F.2d at 376, we wrote that "[a] criminal
defendant who appeals his sentence but not his conviction is likely
acknowledging his guilt and merely contesting his punishment. The
converse is not necessarily so because a defendant . . . who
appeals his conviction is almost always appealing his sentence
too." Although this statement may be accurate as an empirical
matter, we do not believe that it is necessarily true. It seems
equally plausible to us that there may be (1) defendants who only
appeal their sentences who have challenges to their underlying
convictions and (2) defendants who only appeal their convictions
who do not have challenges to their sentences. Nevertheless, the
point that we wish to make is a more narrow one. Distinctions
between defendants who appeal their convictions and defendants who
6 appeal their sentences should not be determinative when questions
concerning potentially defective notices of appeal arise. The
standard by which we determine whether a notice of appeal should be
read to allow an appeal of an unnamed or mislabeled ruling should
be what we have traditionally required: whether the appealing
party has exhibited an intent to appeal the ruling and whether the
opposing party was misled or prejudiced. Ramirez, 932 F.2d at 375;
Turnbull, 929 F.2d at 177.
In the present case, Knowles specified only his sentence in
his Notice of Appeal; he did not indicate that he was appealing his
conviction on the possession of a firearm in a school zone count.
However, the failure of Knowles's Notice of Appeal to refer to this
conviction "does not per se preclude appealing" his conviction.
Winn, 948 F.2d at 154. We must apply the rule we articulated in
Ramirez and similar cases: "[W]hen the intent to appeal an unnamed
. . . ruling is apparent (from the briefs or otherwise) and no
prejudice results to the adverse party, the appeal is not
jurisdictionally defective." Ramirez, 932 F.2d at 375 (emphasis
supplied). Here, Knowles demonstrated his intent to appeal his
conviction on the possession of a firearm in a school zone count in
his brief to this Court. Moreover, the government has conceded
that it was not misled or prejudiced by the allegedly defective
Notice of Appeal. Therefore, we find that Knowles should be
allowed to appeal both his conviction and sentence on the
possession of a firearm in a school zone count.
II. The Merits
7 We now turn to the merits of Knowles's argument in favor of
reversal of his conviction for possession of a firearm in a school
zone, a violation of the Gun Free School Zones Act, 18 U.S.C. §
922(q)(1)(A). In Lopez, we concluded that "section 922(q), in the
full reach of its terms, is invalid as beyond the power of Congress
under the Commerce Clause." Lopez, 2 F.3d at 1367-68. Knowles
maintains that our Lopez decision requires reversal of his
conviction on the possession of a firearm in a school zone count.
Before we can address Knowles's contentions, though, we must
confront the fact that Knowles failed to raise any challenge to the
constitutionality of the Gun Free School Zones Act in the district
court below. Because of this failure, our review of Knowles's
challenge to the constitutionality of section 922(q) is confined to
a search for plain error. See Fed. R. Crim. P. 52(b) ("Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.").
The Supreme Court has recently clarified an appellate court's power
under Rule 52(b) "to correct errors that were forfeited because not
timely raised in the District Court." United States v. Olano, 113
S. Ct. 1170, 1176 (1993). In Olano, Justice O'Connor explained
that an appellate court may exercise its authority under Rule 52(b)
only if there is an "error", and the error is "plain", and the
plain error affects "substantial rights". Id. at 1777-78.
"Deviation from a legal rule is `error' unless the rule has been
8 waived." Id. at 1777.2 An error is "plain" if it is "clear" or
"obvious". Id. Finally, in most cases, a plain error affects
"substantial rights" when it is "prejudicial". In other words, it
must affect "the outcome of the District Court proceedings." Id.
at 1778. Once these conditions have been met, Rule 52(b) gives the
Courts of Appeals the discretion to correct errors not brought to
the attention of a District Court. The Supreme Court has
instructed us on how to exercise this discretion: the Courts of
Appeals should "correct a plain and forfeited error affecting
substantial rights if the error `seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.'" Id. at
1779 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
The fact that Knowles is asserting an argument based on the
Constitution does not nullify the applicability of Rule 52(b). It
is a truism that a "constitutional right may be forfeited in
criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to
determine it." Yakus v. United States, 321 U.S. 414, 444 (1944).
Many courts, including ours, have found that alleged constitutional
errors in criminal convictions--that do not amount to plain error--
are forever forfeited by the failure to object contemporaneously to
that error in the district court. See, e.g., United States v.
Vontsteen, 950 F.2d 1086, 1089 (5th Cir.) (en banc) (collecting
2 "Waiver" in this context "is the `intentional relinquishment or abandonment of a known right.'" Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). "Forfeiture", in contrast, is the "failure to make the timely assertion of a right." Id.
9 cases), cert. denied, 112 S. Ct. 3039 (1992). However, we have
long held that, under the plain error inquiry, errors of
constitutional dimension will be noticed more freely than less
serious errors. United States v. Faulkner, 17 F.3d 745 (5th Cir.
1994); Alexander v. United States, 390 F.2d 101, 103 n.3 (5th Cir.
1968).
In the present case, we have no difficulty concluding that
Knowles's attack on the constitutionality of the Gun Free School
Zones Act satisfies the requirements of Rule 52(b). It is self-
evident that basing a conviction on an unconstitutional statute is
both "plain" and an "error" as Olano defines those terms. It is of
no consequence that Lopez was decided after the proceedings in the
district court concluded. Since this case is on direct appeal,
newly announced rules apply. Griffith v. Kentucky, 479 U.S. 314
(1987) ("[A] new rule for the conduct of criminal prosecutions is
to be applied retroactively to all cases, state or federal, pending
on direct review or not yet final, with no exception for cases in
which the new rule constitutes a `clear break' with the past.").
In any event, the novelty of our decision in Lopez3 also militates
in favor of allowing Knowles to raise a Lopez-based argument for
the first time here on direct appeal. Cf. Reed v. Ross, 468 U.S.
1, 16 (1984) ("[W]here a constitutional claim is so novel that its
legal basis is not reasonably available to counsel, a defendant has
cause for his failure to raise the claim" on direct appeal and may
3 The dearth of statutes that have been struck down as beyond Congress's power under the Commerce Clause since the 1930s speaks to the novelty of the Lopez decision.
10 thus raise it in a habeas corpus proceeding).4 It is also evident
that this error affected the outcome of the proceedings below. Had
the Lopez argument been raised in the district court, it should
have resulted in the dismissal of the Gun Free School Zones Act
count from Knowles's indictment. Finally, we agree that our
failure to address Knowles's challenge to the constitutionality of
the Gun Free School Zones Act would seriously affect the fairness,
integrity, and public reputation of judicial proceedings.
Accordingly, since this Court found in Lopez that the Gun Free
School Zones Act is unconstitutional, we must conclude that
Knowles's conviction based on that Act must be reversed.
The government has attempted to distinguish this case from
Lopez, but we find these distinctions unavailing. The government's
first argument is rooted in the following dicta that appears in
Lopez: "Conceivably, a conviction under section 922(q) might be
sustained if the government alleged and proved that the offense had
a nexus to commerce." 2 F.3d at 1368 (footnote omitted). Even if
we assume that a conviction under section 922(q) could be sustained
by alleging and proving a commerce nexus, we do not think that this
is such a case. The government maintains that Knowles's Gun Free
School Zones Act conviction is proper because the indictment
alleged, and the factual resume filed in this case stated, that
Knowles's firearm traveled in interstate commerce. It is true that
4 But cf. Teague v. Lane, 489 U.S. 288, 301 (1989) (prohibiting the retroactive application of "new" rules in habeas corpus proceedings "not dictated by precedent existing at the time the defendant's conviction became final.")
11 the indictment alleged that Knowles's handgun traveled in
interstate commerce. However, this allegation appeared only in
Count One of the indictment, the count that charged Knowles with
being a convicted felon in possession of a firearm. Count Two, the
count that charged Knowles with violating the Gun Free School Zones
Act, did not allege that the firearm that Knowles was carrying
traveled in interstate commerce. This omission is fatal to the
government's argument because the failure of Count Two to allege
any commerce nexus renders that charge fundamentally defective.
See Lopez, 2 F.3d at 1368. While it is true that an allegation
made in one count of an indictment may be incorporated by reference
in another count of the indictment, see Fed.R.Crim.P. 7(c)(1), we
have held that any such incorporation must be expressly done.
United States v. Hajecate, 683 F.2d 894, 901 (5th Cir. 1982), cert.
denied, 461 U.S. 927 (1983); Davis v. United States, 357 F.2d 438
(5th Cir.), cert. denied, 385 U.S. 927 (1966); see also 1 Charles
A. Wright, Federal Practice and Procedure: Criminal § 123 at 349
(1982) ("[E]ach count is considered as if it were a separate
indictment and must be sufficient without reference to other counts
unless they are expressly incorporated by reference.") (footnotes
omitted). Here, Count Two, the count that charged Knowles with
possession of a firearm in a school zone, did not expressly refer
to the interstate commerce nexus alleged in Count One, the count
that charged Knowles with being a felon in possession of a firearm.
This omission renders Count Two defective. See Lopez, F.3d at
1368.
12 Noting that a guilty plea generally waives defects in the
underlying proceedings, the government also claims that Knowles's
conviction on Count Two is proper because Knowles pleaded guilty.
This argument is not persuasive. We have reversed other
convictions against defendants who had pleaded guilty to charges
brought under the Gun Free School Zones Act. See United States v.
Handy, No. 93-1485 (5th Cir. Oct. 20, 1993) (unpublished). We have
done so for the well-established reason that a guilty plea does not
waive the right of the defendant to challenge the constitutionality
of the statute under which he is convicted. See Menna v. New York,
423 U.S. 61, 62-63 n.2 (1975) ("[A] plea of guilty to a charge does
not waive a claim that--judged on its face--the charge is one which
the State may not constitutionally prosecute.").
III. Conclusion
Knowles's conviction on the possession of a firearm in a
school zone count is REVERSED, and the sentence imposed based upon
that conviction is VACATED.