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 authoritie s 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 on1 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 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 foun d 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. I d

. 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 federal3

sentencing guidelines. In its brief, the government did not

question the adequacy of Knowles's Notice of Appe al. 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 ad dress whether Knowles's Notice of Appeal, which

stated onl y 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),

bu t 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 befor e turning to the other issues

presented in this appeal.

I. Appellate Jurisdiction

Rule 3(c) of the Federal Rules of Appellate Procedure

instructs appellant s to "designate the judgment, order or part

thereof appealed from." We have consistently given a liberal

i nterpretation to this requirement. S ee

, e.g.

, United States v.4

Ramirez

, 932 F.2d 374, 375 (5th Cir. 1991); s ee also Smith v.

Barry

, 112 S. Ct. 678, 681 (1992) ("Courts will liberally construe

t he requirements of Rule 3."). For example, in U nited States v.

Rochester

, 898 F.2d 971 (5th Cir. 1990), we wrote that a "[f]ailure

to prop erly designate the order appealed from is not a

jurisdictional defect, and may be cured by an indication of intent

in the briefs or otherwise." I d

. 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." I d

. 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 t he 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 typewritten5

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. R amirez

,

932 F.2d at 375. We explained that this action was consistent with

o ur approach to other similar cases. I d

. 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 explained6

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. I d

. at 154. We then examined R amirez and

found that the defendant could appeal both the conviction and the

sentence. I d

. 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 n ot 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

appea l 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 who7

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. R amirez

, 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

convic tion "does not p er se preclude appealing" his conviction.

Winn

, 948 F.2 d at 154. We must apply the rule we articulated in

Ramirez and similar cases: "[W]hen the intent to appeal an u nnamed

. . . 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 Merits8 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 L opez

, 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." L opez

, 2 F.3d at 1367-68. Knowles

maintains that our L opez 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. S ee 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." U nited States v. Olano

, 113

S. Ct. 1170, 1176 (1993). In O lano

, 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". I d

. at 1777-78.

"Deviation from a legal rule is `error' unless the ru le has been2 "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 waived." I d

. at 1777. 2 An error is "plain" if it is "clear" or

"obvious". I d

. 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 befor e 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. S ee

, e.g.

, United States v.

Vontsteen , 950 F.2d 1086, 1089 (5th Cir.) (en banc) (collecting3 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 cas es), c ert

. denied

, 112 S. Ct. 3039 (1992). However, we have

long held that, under the plain error inquiry, errors of

constitutional dimension wi ll 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 r equirements of Rule 52(b). It is selfevident 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. G riffith 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 Lopez 3 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 may4 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 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 Scho ol Zones Act

count from Kn owles'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 ind ictment

alleged, and the factual resume filed in this case stated, that

Knowles's firearm traveled in interstate commerce. It is true that12

the in dictment 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 Tw o to allege

any commerce nexus renders that charge fundamen tally 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

hav e 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. S ee Lopez

, F.3d at

1368.13 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

convictio ns against defendants who had pleaded guilty to charges

brought under the Gun Free School Zones Act. S ee 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. S ee 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 convict ion on the possession of a firearm in a

school zone count is REVERSED, and the sentence imposed based upon

that conviction is VACATED.