United States Court of Appeals

Fifth Circuit

FILED

May 29, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 01-21166

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ENRIQUE GONZALES, SR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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ON PETITION FOR

REHEARING EN BANC

(Opinion April 1, 2003, 327 F.3d 416)

Before GARWOOD, SMITH, and BARKSDALE,

Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc

as a petition for panel rehearing, the petition

for panel rehearing is DENIED. The court

having been polled at the request of one of its

members, and a majority ofthe judges who are

in regular active service not having voted in

favor (FED. R. APP. P. 35 and 5TH CIR. R. 35),

the petition for rehearing en banc is DENIED.
KING, Chief Judge, and HIGGINBOTHAM, DeMOSS, BENAVIDES, STEWART,

and DENNIS, Circuit Judges:

With respect, we dissent from the decision to deny en banc

consideration of this case. 

1. The panel opinion creates a circuit conflict with the

decision of the Tenth Circuit in U.S. v. Wiseman, 297 F.3d

975 (10th Cir. 2002). In Wiseman, as here, the issue was

whether the decision in Castillo v. U.S., 530 U.S. 120

(2000), that Congress intended to create a separate offense

of possessing a machinegun shall be available to earlier

convicted defendants on habeas review. The Tenth Circuit in

Wiseman said yes, and the panel said no, holding that the

statutory interpretation is Teague barred. 

2. The Supreme Court in Castillo made plain that the decision

rested on its finding of congressional intent, explaining:

“for the reasons stated, we believe

that Congress intended the firearm

type-related words it used in

§924(c)(1) to refer to an element of

a separate, aggravated crime.” 530

U.S. at 131.

It is well established that when the Supreme Court

construes a statute, “it is explaining its

understanding of what the statute has meant

continuously since the date when it became law.”

Bousley v. U.S., 524 U.S. 614 (1998). A statement

of what the law is and always was cannot be a new

constitutional rule of criminal procedure.

3. Congress provided that each of the “firearm type-related

words” used in §924(c)(1) describes an element of a

separate, aggravated crime. It follows that each of these

separate crimes carries its own separate punishment as set

forth in §924(c)(1). Contrary to the panel opinion, we do

not think that the decision of the Supreme Court in Apprendi

v. New Jersey, 530 U.S. 466 (2000), informs our issue.

Proof of the type of firearm used does not “increase the

maximum penalty for that crime,” but simply satisfies an

element of that separate crime which has its own defined

penalty.

4. We are persuaded that Castillo’s holding that Congress

intended to create separate crimes is substantive; that
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implementing its substantive holding worked procedural

changes cannot be determinative. To conclude otherwise

expands Teague beyond the authority of this court and

poses a frontal challenge to the Article III

proscriptions of judicial legislation.

For these reasons, we think the panel opinion is in error and the

majority of this Court erred in denying en banc reconsideration.
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