### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 40041

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus KEVIN LYNDEL MASSEY , Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Texas

Before SMITH , CLEMENT , and SOUTHWICK , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
Kevin Mas sey 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 United States Court of Appeals Fifth Circuit 

### FILED February 22, 2017 Lyle W. Cayce Clerk Case: 16-40041 Document: 00513886208 Page: 1 Date Filed: 02/22/2017No. 16

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2 the time of his arrest , the group was camped near the Sabal Palms Sanctuary

on the property of Rusty Monsees. Massey met with Guillermo Agui lar, the
pro g ram coordinator of the sanctuary, to discuss conducting patrols on its prop

erty . Aguilar could not a uthorize the group to patrol in the sanctuary but told Massey he would not turn them away. Aguilar believed, based on his conver

sation with Massey, that the patrols were coordinated with the B order P atrol. Later, while patrolling the sanctuary, Massey en countered 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 patrolm a n 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.
T he Border Patrol seized the firearms carried by Massey and the other patrolmen ; Massey was also carrying a Springfield XDS .45 calib er pistol

. The encounter was investigated by the Bur eau of Alcohol, Tobacco, Firearms and E xplosives (“BATFE”)

. Massey was arrested in the parking lot of the hotel in which he was staying ; he informed the agents that he was armed. The arrest

ing agent removed an HS Produkt model XDS .45 caliber handgun from Mas

sey’s front pocket and seized another .45 caliber handgun fro m his hotel room.

II. Massey was charged with four counts of possession of a firearm by a con

victed 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) i s unconstitutional as applied to him. He also maintained that , to sat

isfy the jur isdictional element of Section 922(g), the government was required to prove more than just that the firearms had traveled in interstate commerce. Case: 16-40041 Document: 00513886208 Page: 2 Date Filed: 02/22/2017No. 16

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3 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 pre

sented evidence that Massey had a 1988 Texas conviction of burglary of a hab

i tation for which he was sent enced to five years. Massey moved for a dir ected 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 dis missed on the government’s motion , and judgment was entered against Mas sey on the remaining two

. He was sentenced , within the guideline range , to 41 months’ impris on ment 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 pos ses sion of the firearms affected interstate commerce. He asserts that under Texas law, he was permitte d to have the firearms because he possessed them on “prem ises at which the person lives.” T EX

. P ENAL C ODE § 46.04 (a)(2)

. Fin ally, he believes it was error for the district court to make no deter min ation on whether his rights had been restored. All three of these theories fail

. A. Massey’s indictment was not constructively amended , because the lan

guage of his indictment mirrored th at of the statute of conviction. “ [ A ] n indict

ment which follows the language of the statute under which it is brought is suf ficient 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) (inte rnal quotation Case: 16-40041 Document: 00513886208 Page: 3 Date Filed: 02/22/2017No. 16

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4 marks omitted). The jurisdictional element of Section 922(g)(1) includes cir

cum stances in whic h the possession of the firearm was intrastate, but the fire

arm 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 amend

ment 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

re quires the defendant to “p ossess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Pursuant to that indictment, the gov ern ment put on evidence that Massey’s firearms had traveled to Texas from Ver

mont and Croatia, where they were manufactured. The ind ictment was not

con structively 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 convic

tion under Section 922(g). To convict under Section 922(g)(1), the government must prove three elements: “(1) that the defendant previously had been con

victed of a felony; (2) t hat he possessed a firearm; and (3) that [ i t ] traveled in or affected interstate commerce.” United States v. Guidry , 406 F.3d 3 15, 318 (5th Cir. 2005) ; 18 U.S.C. § 922(g)(1)

. 1 The statute contains no requirement

1 “It shall be unlawful for any person

— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding on e year
. . . to ship or transport in Case: 16-40041 Document: 00513886208 Page: 4 Date Filed: 02/22/2017No. 16

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5 that the possession be illegal under state law. Texas law is relevant only to eval u ating the applicability of Massey’s prior conviction

. T he prior conviction charged in the indictment was his 1988 Texas conviction o f burglary of a habi

ta tion , 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 w ould be permitted to possess a fire

arm . Massey does not identify the statutory basis of th at 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 pa rdoned or has had civil rights restored

. . . unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, pos

sess, or receive firearms.” 18 U.S.C. § 921(a)(20). Massey has the burden to sh ow that his rights had been restored such that his burglary conviction was not applicable under Section 922(g). United States v. Huff , 370 F.3d 454, 458

– 59 (5th Cir. 2004). He has pointed to no evi dence that his rights had been restored after his 1988 burglary conviction. Without that evidence, t he dis trict court was not required to make any finding regard ing the restoration of Massey’s rights.

IV. Massey’s conviction does not violate the Second Amendment , the Com

merce Clause , or the Ex Post Facto Clause of the U.S. Constitution

. His Second Amendment and Commerce Clause theories are for e closed by the rule of

interstate or foreign commerce, or possess in or affecting commerce, any firear m or ammu nition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). Case: 16-40041 Document: 00513886208 Page: 5 Date Filed: 02/22/2017No. 16

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6 order l in e ss , which forbids us to overrule the holdings of this court

. 2 His Ex Post Fac to Clause claim with respect to amendments to Texas ’s felon

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possession stat u te is irrelevant to his conviction under federal law.
A. The Second Amendment framework adopted in Nat ional Rifle Ass’n of America, Inc. v. BA T FE , 700 F.3d 185, 194 (5th Cir. 2 012) , precludes this panel from reexamin ing, as Massey claims we must, the constitutionality of Sec

t ion 922(g). In District of Colum bia v. Heller , 55 4 U.S. 570, 626 (2008) , the Court specifically preserved the constitu tionality of felon

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- possession stat tes :

“ [N] othing in our opinion should be taken to cast doubt on the longstanding prohibitions on the pos session of fire arms by felons and the mentally ill

. . . .” We reaffirmed the constitutionality of Section 922(g) in both United States v. Ande rson , 559 F.3d 348, 352 & n.6 (5th Cir. 2009) , and Nat ional Rifle Ass’n , 700 F.3d at 194 n.7. The rule of order liness does not per mit us to revisit those holdings. See Jacobs v. Nat’l Drug Intelligence C t r
. , 548 F.3d 375, 378 (5th Cir. 2008).

B. Mas sey’s notion that his conviction under Section 922(g)(1) violates the Commerce Clause in light of United States v. Lopez , 514 U.S. 549 (1995) , is also foreclosed. We have considered th at reasoning and rejected it. See Rawls , 85 F.3d at 242. “This court has repeatedly emphasized that the constitu tion

ality of § 922(g)(1) is not open to question.” United States v. d e Leon , 170 F.3d 494, 499 (5th Cir. 1999). We are bound to hold that Section 922(g)(1) is con

stitutional under Lopez

. See Jacobs , 548 F.3d at 378.

2 Se e, e.g. , Vaughan v. Anderson Reg’l Med. Ctr. , No. 16

- 60104, 2017 WL 629265, at *3 (5th Cir. Feb. 15, 2017). Case: 16-40041 Document: 00513886208 Page: 6 Date Filed: 02/22/2017No. 16

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7 C. Massey’s conviction does not violate the Ex Post Facto Clause as a result of amendments to Texas’s felon

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- possession statute, Tex as Penal Code § 46.04, because that statute is irrelevant to his conviction. As discussed in Part II I .B, supra , state law is relevant only to the prior

- conviction element of Section 922(g). That was satisfied by Massey’s burglary conviction.
AFFIRMED

. Case: 16-40041 Document: 00513886208 Page: 7 Date Filed: 02/22/2017