## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-20871

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ITCHELL 

### R AY 

### D AUGHERTY



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

August 28, 2001

Before JOLLY, SMITH, and WIENER,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mitchell Daugherty appeals his conv icti on

of violating 18 U.S.C. § 922 (g)(1) (2001),

whi c h prohibits convicted felons from possessing firearms “in

and affecting” interstate

commerce. We affirm.

I.

D augherty was convicted in state court of

delivery of marihuana and injury to a child and

was imprisoned. In 1985, the state court released him and placed him on “shock probat ion” for ten years. In 1995, the court discharged him from probation. 1

In March 2000, police officers responded to

a disturbance call placed by two sisters staying

in a motel r o o m. They complained that

1 The order re ad, in pertinent part: “and it

further appearing to the satisfaction of the Court

that the period of probation herein has expired, and

that all conditions of probat i on have been

satisfactorily fulfilled,

. . . the Defendan t is discharged from probation.”2

Daugherty had repe at edly harassed and

threatened them. The officers found Daugherty standing outside the motel room

, talked to

him, and searched him for weapons, finding

none. They then spoke with the two sisters,

who said Daugherty had a weapon in his truck.

O ne o f the officers found a rifle, which

Daugherty admitted he owned and which was

manufactured in Egypt and imported through

Knoxville, Tennessee.

II.

Daugherty was indicted for being a felon in

possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) a nd 924(a)(2). He filed

a motion to dis miss t he indictment on the

ground t hat his two state felony convictions

did not prohibit him from possessing a firearm,

because he had been discharge d from probatio n for both offenses. The court denied

that motion.

Daugherty consented to a bench trial based

on a written stipulation of facts. After the

government had presented its case, Daugherty

moved for a judgment of acquittal under F ED

. R. C RIM

. P. 29 on the basis that there was an

insufficient nexus with interstate comme r ce.

Daugherty again argued that his completion of

probation allowed him to possess a firearm.

The court overruled bot h mo tions and found

Daugherty guilty.

III.

The question

whet her a felony conviction

may serve as a predicate offense for a prosecution for being a felon in possession of a firearm

pursuant to § 922(g)(1) is “purely a legal one.”

United States v

. Thomas

, 991 F.2d 206, 209

(5th Cir. 1993). Consequently, “our review is

plen ary.” I

d. We affirm a § 922(g)(1)

conviction if substantial evidence exists to support it. United States v

. Ybarra

, 70 F.3d 362, 364 (5th Cir. 1995). The court must decide

“whether any substantial evidence supports the

finding of guilty,” id

. (quoting United States v

. Davis

, 993 F.2d 62, 66 (5t h Cir. 1993)), and

“ whether the evidence is sufficient to justify

the trial judge, a s t rier of the facts, in

concluding beyond a reasonable doubt that the

defendant was guilty.” Id

.

No person “who has been convicted in any

court of a crime punishable by imprisonment

for a term exceeding one year” may possess a

firearm “in or affecting” interstate commerce.

§ 922(g)(1). 2 The law of the jurisdiction in

whi ch the proceedings were held determines

what constitutes a crime. 3 So, Texas law

2 Section 922(g)(1) provides:

(g) It shall be unlawful for any person SS

(1) who has been convicted in any court of,

a crime p u nishable by imprisonment for a

term exceeding one year; . . .

to ship or tra nsport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or amm unition which

has been shipped or transported in interstate

or foreign commerce.

18 U.S.C. § 922(g)(1) (2001).

3 Beecham v

. United States

, 511 U.S. 368, 371

(1994).

What constitutes a convicti o n of such a

crime shall be determined in accordance

with the law of the jurisdiction in which the

proceedi ngs were held. Any conviction

which has been expunged, or set aside or for

which a per son has been pardoned or has

had civil rights rest o red shall not be

(continued...)3

determines whether Daugherty was a convicted felon for purpo ses of § 922(g)(1). S ee

,

e.g.

, United States v

. Dupaquier

, 74 F.3d 615,

617 (5th Cir. 1996).

“Not all

. . . con victions, however, count

for purposes of § 922(g) . . . .” C aron v

. United States

, 524 U.S. 308, 313 (1998). A

conviction for which the defendant’s civil

rights have been restored is not a predicate

offense “unless such . . . restoration of civil

rights expressly provides that the person may

not ship, transport, possess, or receive firearms.” § 921(a)(20). 4

Section 922(g)( 1) has three requirements:

“ (1) that the defendant previously had been

convicted of a felony; (2) that he possessed a

firearm; and (3) that the firearm traveled in or

affected interstate commerce.” United States

v

. Gresham

, 119 F.3d 258, 265 (5th Cir. 1997)

(citing United States v

. Fields

, 72 F.3d 1200,

1211 (5th Cir. 1996)). The parties have stipulated that the first two factors are met. Daugherty, howeve r, contends that, under

T EX

. C OD E C RIM P ROC

. A NN

. art. 42.12,§

20(a) (Vern o n Supp. 2001), the successful

completion of his probation restored his civil

rights such that he no longer should be co nsidered convicted.

That statute provides:

If the judge discharges the defendant under this section, the judge may set aside

the verdict o r permit the defendant to

withdraw his plea, and shall dismiss the

. . . indictment against the defendant,

who shall thereafter be released from all

penalties and disabilities resulting from

t he o ffense or crime of which he has

been convicted . . . .

Daugherty reasons that, consequently, his two

felony conviction s cannot serve as predicate

offenses under § 921(a)(20).

We have a two-part test to det ermine

whether the “unless clause” of § 921(a)(20),

which supports a § 922(g)(1) conviction, is

triggered. D upaquier

, 74 F.3d at 617. First,

we ask whether “the state which obtained the

underlying conviction revives essentially all

civil rights of convicted felons, whether affirmat ively with individualized certification or

passively with a ut o matic reinstatement.” I d

. (quoting Thomas

, 991 F.2d at 213). Second,

we “determine whether the defendant was neverthele ss expressly deprived of the right to

possess a firearm by some provision of the restorati on law or procedure of the state of the

underlying conviction .” I

d

. (emphasis added).

Because Daugherty’s rights were passively

revived by operati on of law, not by individu3 (...continued)

considered a conviction for purposes of this

chapter, unless such pardon, expungement,

or restoration of civil rights expressly prov ides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20) (2001).

4 This is referred to as the “unless clause” of

§ 921(a)(20). S ee Caron

, 524 U.S. at 309. In

passing the Firearm Owners Protection Act of

1986, Pub. L. No. 99-308, § 1(a), 100 Stat. 449

(1986), Congress amended Section 921(a)(20) “to

give federal effect to state statutes that fully restore

the civil rights of convicted felons when they are

released from prison, or are granted a pardon, or

h a ve their convictions expunged.” T homas

, 991

F.2d at 209.4

alized certification, 5 we examine Texas law to

decide wh et her any provision or procedure

limit s his right to possess firearms. S ee Caron

, 524 U.S. at 313-15, 317-18 (Massachusetts

law). The government co ntends that, even

assuming that Daugherty’s general civil rights

were restored under art. 42.12, § 20, so as to

fulfill the first part of the Dupaquier test, some

“procedure o f t he state of the underlying

conviction” expressly deprived him of the right

to possess a firearm. 6

The government argues t hat T E X

. P ENAL

C ODE A NN

. § 46.04(a) (Vernon 2001) prohib it s Daugherty from possessing firearms.

That statute generally provides that it is unlawful fo r a person convicted of a felony to

possess a firear m. Daugherty claims that a

person discharged from probation under art.

42.12, § 20, is no longer “convicted.”

Neither art. 42.12, § 20, nor § 46.04 explains whethe r successful completion of probation supervision renders o ne “no longer convicted.” Befo re enactment of the “unless

cl ause,” however, the Supreme Court concluded that one is consid ered convicted even

after the completion of probation. 7 This cir cuit has reached t he same conclusion. In

United States v

. P adia

, 584 F.2d 85, 86 (5th

Cir. 1978), we affirmed a conviction of receiving firearms in interstate commerce by a convicted felon, stating that probation does no t

erase the conviction 8 but only “rewards a convicted party for good behav ior during probation by releasing him from certain penalties

and disabilities otherwise imposed upon convicted persons by Texas law.” I d

. (citing Gonzalez de Lara v

. United States

, 439 F.2d 1316,

1318 (5th Cir. 1971)). 9

Although Padia and Lehmann applied art.

5 This circuit has considered only situations in

which the defendant’s civil rights were passively

restored by operation of state law. See Thomas

, 991 F.2d at 209-16 (Texa s law); D upaquier

, 74

F.3d at 617-19 (Louisiana law).

6 See Dupaquier

, 74 F.3d at 617; Caron

, 524

U.S. at 316-17 (holding that, b ecause Massachusetts law expressly provided that felons could not

possess firearms, that law activat ed the “unless

clause” of § 921(a)(20) and prevented pet itioner

from owning a firearm).

7 See Dickerson v

. New Banner Inst

., Inc

., 460

(continued...) 7 (...continued)

U.S. 103, 112 n.6, 113-14 (1983). There, the

Court stated that “Congre ss’ intent in enacting

§§ 922(g) and (h) . . . was to keep firearms out of

the hands of presumpt ively risky people.” I d

. at

112 n.6 (citation omitted). Bearing legislative intent in mind, the Court stated: “[F]or purposes of

the federal gun control laws, we equate a plea of

guilty and its notation by the state court, followed

by a sentence of

pr obation, with being convicted

within the language of §§ 922(g) and (h).” Id . at

114 (citation omitted).

8 Padia involved an application of T EX

. C ODE

C RIM

. P ROC

. A

NN

. art. 42.12, § 7 (subsequently

recodified as art. 42.12, § 20), to 18 U.S.C.

§ 922(h). Padia , 584 F.2d at 85.

9 Acc ord United States v. Morales , 854 F.2d

65, 68 (5th Cir. 1988) (“We have previously held

that persons given

probated sentences for Texas

felony convictions, whether the probations are still

pending

, . . . or su ccessfully completed, . . . are

persons convicted for purposes of 1 8 U.S.C. §§

922(g), (h) (1982). The rationale of those

precedents furnish guidance today.”) (citations and

quotation marks omitted) ; United States v.

Lehmann

, 613 F.2d 130, 135 (5th Cir. 1980) (following Padia ’s holding that “a prior conviction did

exi st where a defendant, convicted of a crime in

Texas, was given probation”).5

42.12, § 7, to § 922(g)(1) before enactment of

the “unless clause,” see Padia

, 584 F.2d at 86,

this circuit’s precedent regarding the effect

that probation has on a conviction in Texas has

not changed since Congr ess enacted the “unless clause.” In U

nited States v. Morales

, 854

F. 2d 65, 68 (5th Cir. 1988), we noted

sp ecifically that the successful completion of

p ro bation does not expunge a conviction for

purposes of § 922(g). We decided M orales

two years after Congress amended § 922(g) to

include the “unless clause.” Thus, under Fifth

Circuit precedent, Daugherty remained a

convicted felon.

The government also contends that the

Concealed Handgun Act (“CHA”), T EX

. G OV ’ T C ODE A NN

. § 411.171(4) ( Vernon

Supp. 2001), prevents Daugherty from owning

a firearm. The government strongly relies on

Tune v

. Tex. Dep’t of Pub. Safety

, 23 S.W.3d

358 (Tex. 2000), in which the defenda nt was

denied a license to carry a concealed handgun

because he had been convicted o f a felony.

See id . at 360. He argued that, because his

conviction

had been was set aside under art.

42.12, § 20, he was no longer “convicted” under the CHA. I

d

. at 363. The Texas Supreme

Cou rt , noting that the CHA deemed a felon

convicted “after an adjudi cat ion of guilt is

entered a gainst him whether or not his sentence is subsequently probated and he is discharged from supervision,” id. (citation omitted), declared that Tune was not eligible for a

concealed-handgun license. I d

. at 364. After

Tune

, most Texas courts have held that a person applying for a concealed-handgun license

remains convicted for purposes of the CHA. 10 Daugherty responds correctly that Tune applied on l y to the definition of “convicted” as

provided in the CHA and thus is not squarely

on point here. The court in T une stated, howe ver, that “the Legislature may wish to k eep

concealed hand guns out of the hands of pers o ns who have been convicted of a felony,

even if those persons satisfactorily completed

community sup ervision.” I d

. That rationale

also applies here, beca use the Texas Legislature has passed laws designed to keep firearms

out of the hands of convicted felons

. S ee

§ 46.04.

Both § 46.04 and the CHA demonstrate the

power of the legislature “to regulate the wearing of arms, with a view to prevent crime.”

T EX

. C ONST

. art. I, § 3. Thus, Tune provides

strong analogous support for affirming Daugherty’s conviction. Even without T une

, however, Padia and its progeny are con10 See Texas Dep’t of Pub

. Safety v

. McLendon

, 35 S.W.3d 632, 633 (Tex. 2000) (per curiam)

(following Tune and rendering judgment that Mc-

(continued...) 10 (...continued)

Lendon was not eligible for a license); Tex. Dep’t

of Pub

. Safety v

. Kreipke

, 29 S.W.3d 334, 337-38

( T ex. App. SS

Houston [14th Dist.] 2000, pet. denied) (holding that Kreipke was not eligible for a

concealed-handgun license because of a previous

felony conviction, even t hough his crime was no

longer a felony and the convictio n had been set

aside); Tex. Dep’t of Pub

. Safety v

. Rand l e

, 31

S.W.3 d 786, 787-88 (Tex. App. SS Houston [1st

Dis t.] 2000, no pet.) (following the reasoning of

Kreipke a nd rendering judgment that defendant was

not eligible for a concealed handgun license). But

see Cuellar v

. State

, 40 S.W.3d 724, 725-29 (Tex.

App. SS San Antonio 2001, no pet. ) (holding that

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

and dissenting in part) (stating that “[t]oday’s

erosion of right, however slight, is not unlike one of

the first drops of rain on Noah’s head”) (emphasis

added).6

trolling.

Under Texas law, Daugherty remained convict ed even after successfully completing

probation. 11 Consequently, he is subject to the

penalties that state law imposes on convic ted

felons. Section 46.04 prohibits felons from

possessing firearms outside their homes. Accordingly, Texas st a tutory law activated the

“unless clause” in § 921(a)(20) an d prevents

Daugherty from possessing a firearm.

IV.

Daugherty avers that the government failed

to prove that he poss essed a firearm “in and

affecting” interstate commerce, as required by

§ 922(g)(1). S ee Gresham

, 119 F.3d at 265

(citing Fields

, 72 F.3 d at 1211). He claims

that this case is “a classic example of a purely

local o ffense.” In evaluating a Commerce

Clause challenge under United States v. Lopez

, 514 U.S. 549 (1995), however, we repeatedly

have said t hat evidence similar to that presented in Daugherty’s case suffices to maintain

a § 922(g)(1) conviction, 12 and Daugherty

admits as much. Thus, his const it utional

challeng e t o § 922(g) fails, because “the

constitutionality of § 922(g) is not open to

question.” U

nited States v

. DeLeon

, 170 F.3d

494, 499 (5th Cir.), cert

. denied

, 528 U.S. 863

(1999). Daugherty urges us to reconsider the interstate commerce element of § 922(g)(1) in light

of two recent, int ervening decisions: U nited

States v

. Morrison , 529 U.S. 598 (2000), and

Jones v

. United States

, 529 U.S. 848 (2000).

Both, however, are distinguishable from the

present case, because a plain jurisdictional element exists in § 922(g), and there is stipulated

evidence showing that the gun traveled in

interstate commerce. Neither J ones nor Morrison affects or undermines the constitutionality of § 922(g).

IV.

Because the Texas Supreme Court has not

addressed the first issue in this case, we must

“decide the case as would an intermediate appellate court of the st ate in question . . . .”

Jefferson v

. Lead Indus

. Ass ’ n

, Inc

., 106 F.3d

1245, 1247 (5th Cir. 1997) (per curiam) (quoting DiPascal v. N

.Y. Life Ins. Co. , 749 F.2d

255, 260 (5th Cir. 1985)). There is substantial

support in Texas law for the proposi ti on that

persons convicted of a felony are still considered convicted felons even after they successfully complete community supervis io n. This

circuit has repeatedly reached that conclusion,

and Daugherty cites no cases in opposition.

There was a sufficient nexus between Daugherty’s possession of the weapon and interstate

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

a nd possessed in Texas); United States v

. R awls

, 85 F.3d 240 (5th Ci r. 1996) (affirming a § 922-

(g)(1 ) conviction where the weapon was manufactured in Massachusetts and poss essed in Texas).