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

_______________



### m 01-21166

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### E NRIQUE 

### G ONZALES



### , S R



### .,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

ON PETITION FOR

REHEARING EN BANC

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

Before G ARWOOD , S MITH , and B ARKSDALE

, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc

as a petition for p a nel rehearing, the petition

for panel rehearing is DENIED . The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service no t having voted in

favor (F ED

. R. A PP

. P. 35 and 5 TH C IR

. R. 35),

the petition for rehearing en banc is DENIED.K ING, 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 (10t h Cir. 2002). In W iseman, as here, the issue was whether the decision i n C astillo v. U.S.

, 530 U.S. 120
(2000), that Congress intended to create a separate offense

of possessing a machin egun 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 Congre ss 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 be came 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 o ur issue.

Proof of the type of firearm used does not “increase the
maximum penalty for that crime,” but simp ly satisfies an

element of that separate crime which h as its own defined penalty.

4. We are persuaded that Castillo’s holding that Congr ess intended to create separate crimes is substantive; that3 implementing its substantive holding worked procedural changes cannot be determinative. To conclude otherwise expands Teague b eyond the authority of this court and

poses a fro n tal 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.4