UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-10026

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD EUGENE HENRY,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

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April 10, 2002

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Ronald Eugene Henry appeals his conviction for possession of a firearm while subject to a

court order in violation of 18 U.S.C. § 922(g)(8), alleging, among other things, that the indictment

was defective because it did not allege t he scienter element of “knowing” set forth in the

corresponding punishment provision o f 18 U.S.C. § 924(a)(2). Finding no reversible error with

respect to his conviction, we affirm the conviction. Henry also argues that the district court

committed plain error in calculating his criminal history category. We agree and vacate and remand2

for re-sentencing.

I. BACKGROUND

In November 1998, deputies from the Potter County Sheriff’s Office went to a residence after

receiving a “hangup” 911 phone call. Upon arriving, they observed a small child looking out of the

front window of the residence, Henry’s wife Michelle inside the residence holding a revolver, and

Henry. The deputies were familiar with the parties invo lved because there had been several

previously alleged incidents of family violence at the residence.

While inside the residence, the deputies found a Noble Model 222T, .22 caliber rifle in the

back utility room

. The rifle was loaded with a round in the chamber and had not been manufactured

in Texas. Michelle advised the deputies that the rifle was not hers and that Henry had carried the rifle

into the residence. Henry possessed additional shells for the rifle on his person.

At the time of the incident, Henry was subject to an agreed protective order issued after a

September 1998 hearing of which he had notice and in which he had opportuni ty to participate. T he

protective order stated that there had been family violence and there was a continued likelihood of

family violence. It found that Henry represented a credible threat to the safety of Michelle and her

children. T he protective order restrained Henry from “harassing, stalking, or threatening” Michelle

or her childr en and “engaging in other conduct that would place Michelle . . . or her children in

reasonable fear of bodily injury.” I t also prohibited Henry from having any contact with Michelle or

her two children (except for visitation as directed by the Family Support Services) and from going

within 200 yards of her residence for one year. Henry signed this order, evidencing his agreement

to its terms.

Henry was indicted on one count of possession of a firearm while under a restraining order,3

in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). The indictment alleged:

On or about the 14th day of November, 1998, in the Amarillo Division of the

Northern District of Texas, the defendant, RONALD EUGENE HENRY, possessed

in and affecting commerce a firearm, to wit: a Noble, Model 222T, .22 caliber rifle,

which had been shipped or transported in interstate commerce, and at such time

RONALD EUGENE HENRY was subject to a court order that was issued after a

hearing of wh ich RONALD EUGENE HENRY received actual notice and

opportuni ty to participate at said hearing, and said court order restrained RONALD

EUGENE HENRY f

ro m harassing, stalking, or threatening Michelle Henry, the

former spouse of RONALD EUGENE HENRY, o r t heir children, or engaging in

other conduct that would place Michelle Henry or her children in reasonable fear of

bodily injury and said court order included a finding that RONALD EUGENE

HENRY represents a credible threat to the physical safety of Michelle Henry or her

children.

In violation of Title 18, United States Code, Sections 922(g)(8) and 924(a)(2).

Henry moved to dismiss the indictment, arguing that § 922(g)(8) was unconstitutional b e cause

it violated the Second and Fifth Amendments to the United States Constitution. F ollowing the

Government’s response, the district court referred the motion to the magistrate judge for a report and

recommendation. T he magistrate judge issued a report and recommendation, recommending that the

district court deny the motion. Ultimately, the district court denied Henry’s motion to dismiss.

Henry pleaded guilty to the indictment p ursuant to a pl ea agreem ent. T he plea agreement

contained a provision conditioning Henry’s guilty plea on his right to appeal the district court’s denial

of his motion to dismiss the indictment. T he district court accepted Henry’s plea and plea agreement

,

sentencing him to 27 months of imprisonment, three years of supervised release, and a $100 special

assessment. Henry timely filed a notice of appeal.

II. ANALYSIS

A. DEFECTIVE INDICTMENT

Henry argues that the indictment is defective because it does not allege that he knew it was1 We also rejected the argument that such a construction of § 922(g)(8) violated the Due

Process Clause of the Fifth Amendment. Id. at 215-17.

4 unlawful to possess a firearm while under a state court protective order. In the alternative, he argues

that even if § 922(g)(8) does not require knowledge that one is violating the law, the indictment is

defective for failing to allege that he “knowingly” possessed the firearm while under a res t raining

order. We quickly dispose of his first argument but his alternative argument merits more attention.

With respect to his first argument, since the filing of Henry’s brief, we have determined that

the necessary mens rea in this context does not require knowledge that one is violating the law but

merely of the legally relevant facts. U nited States v. Emerson

, 270 F.3d 203, 215-17 (5th Cir. 2001),

petition for cert. filed

, (Feb. 28, 2002) (No. 01-8780). 1 In view of E merson

, the indictment was not

fatally defective for failing to specifically allege that Henry knew it was against the law to possess a

firearm while under a state court protective order.

As stated, Henry alternatively contends that his indictment is insufficient because it did not

alleg e every element of the offense of conviction. T his Court reviews de novo a challenge to the

sufficiency of an indictme nt. United States v. Cabrera-Teran , 168 F.3d 141, 143 (5th Cir. 1999).

“An indictment’s failure to charge an offense constitutes a jurisdictional defect.” I d. “Because an

indictment is jurisdictional, defendants at any time may raise an objection to the indictment based on

failure to charge an offense, and the defect is not waived by a guilty plea.” I d. (internal quotati on

marks and citation omitted). If an objection to the indictment is “raised for the first time on appeal

and the appellant does not assert prejudice, that is, if he had notice of the crime of which he stood

accused, t he indictment is to be read with maximum liberality finding it sufficient unless it is so

defective that by any reasonable construction, it fails to charge the offense for which the defendant5

is convicted.” U nited States v. Fitzgerald

, 89 F.3d 218, 221 (5th Cir. 1996) . “Practi cal , not

technical, considerations govern our inquiry.” I d. “To be sufficient, an indictment must allege each

material element of the offense; if it does not, it fails to charge t hat offense.” C abrera-Teran

, 168

F.3d at 143. “This requirement stems directly from one of the central purposes of an indictment: to

ensure that the grand jury finds probable cause that the defendant has committed each element of the

offense, hence justifying a trial, as required by the Fifth Amendment.” Id.

Henry concedes that his indictment must be read with maximum liberality because he is raising

this contention for the first time on appeal. Section 922(g)(8) states in pertinent part:

(g) It shall be unlawful for any person–

(8) who is subject to a court order that–

(A) was issued aft er a hearing of which such person received actual

notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an

int imate partner of such person or child of such intimate partner o r

person, or engaging in other conduct t hat would place an intimate

partner in reasonable fear of bodily injury to the partner or child; and

(C)(I) includes a finding that such person represents a credible threat

to the physical safety of such intimate partner or child; or

(ii) b y it s terms explicitly prohibits the use, attempted use, or

threatened use of physical force against such intimate partner or child

that would reasonably be expected to cause bodily injury[,]

to shi p o r t ransport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign commerce.

The scienter element of § 922(g)(8) is found in § 924(a)(2), which states that “[w]hoever knowingly

violates subsection

. . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not6

more than 10 years, or both.” § 924(a)(2) (emphasis added).

The Government con cedes t hat “[t]here is no mens rea allegation in the indictment.”

Neverthele ss, t he Go vernment maintains that the indictment is sufficient because (1) it cited the

relevant statutes of

t he offense of conviction, §§ 924(a)(2) and 922(g)(8); (2) the district court

notified Henry of the scienter element at the plea colloquy; and (3) the signed factual resume notified

Henry of the scienter element.

The fact that Henry

received notice of the scienter element from the plea colloquy or the

factual resume is inconsequential. A defendant’s notice of an element not alleged in an indictment

do es not cure an insufficient indictment. S ee Cabrera-Teran

, 168 F.3d at 144-45 (notin g prior

holding that “element’s absence from the indictment [is] fatal, irrespective of the government’s postindictment proffer of evidence and the defendant’s notice of the offense charged”).

The fact that the indictment contained statutory citations to the offense of conviction does not

necessarily cure an otherwise defective indictment. “[S]tatutory citations may not stand in place of

the inclusion of an

element of the crime.” S ee Cabrera-Teran

, 168 F.3d at 145. However, such

citations may “reinforc[e] terms that may be liberally construed to refer to the missing element.” I d.

at 145-46.

Research did not reveal a case in which the scienter element was omitted from an indictment

charging the instant offense. Thus, we must look for guidance in our cases involving failure to allege

scienter with respect to other offenses. In United States v. Arteaga-Limones , the appellant argued

that t he indict ment was defective for failing to allege that the importation of marijuana was

“knowingly or intentionally” committed as set forth in the statute. 529 F.2d 1183, 1199 (5th Ci r.

1976). We acknowledged that “[a]n indictment is defective if it fails to allege scienter elements2 At least, this is the interpretation we have given the rather truncated analysis in ArteagaLimones

. See Cabrera-Teran , 168 F.3d at 146.

7 expressly contained in the pertinent statute.” I d

. We explained, however, that “the elements need

not be alleged in terms, and a pleading is good if it fairly imports kno wledge or intent.” I d. We

found that the language in the indictment “caused [the marijuana] to be imported,” when reinforced

by the statutory reference fairly conveyed the mens rea element. Id . at 1199-2000. 2

In United States v. Wilson

, 884 F.2d 174 (5th Cir. 1989), the appellant arg ued that the

indictment was defective for failing to allege the scienter requirement with respect to the offense of

use or carr ying a firearm during and in relation to a drug trafficking offense. S ee 18 U.S.C. §

924(c)(1); 21 U.S.C. § 841(c)(1). Neither the predicate nor the substantive statute explicitly set forth

the scienter required. We determined that the “requisite mental state for a violation of § 924(c) is

knowledge of the facts constituting the offense.” W ilson

, 884 F.2d at 179. As in the case at bar, we

read Wilson’s indictment with maximum liberality. We concluded that although the scienter

requirement was not expressly contained in the predicate and substantive statutes, it was “relatively

clear.” I d

. at 180. We also observed that the indictment cited to the statutes. Thus, we held that the

indictment, read with maximum liberalit y, “‘fairly imported’ this marginal mental state.” I d

. at 180-

81. Likewise, the Second Circuit has determined that the language of § 924(c) fairly imported the

scienter requirem

ent and t hus the indictment was not defective for failing to include a mens rea

allegation. U nited States v. Santeramo

, 45 F.3d 622 (2d Cir. 1995). The Second Circuit explained

that “a person cannot have possession or control of a firearm and allow the firearm to play a role in

the crime unless the person knew of the firearm’s existence.’” Id

. (internal quotat io n marks and

citation omitted).3 Although it is not relevant to our inquiry, the indictment also alleges that the firearm had

been shipped or transported in interstate commerce.

8 Although Santeramo and Wilson

, both of which involve a section 924(c) violation, are not

controlling, they are instructive with respect to Henry’s content i on that his indictment was fatally

defective for failing to allege “knowingly.” Henry argues that simply alleging that he “possessed” a

firearm does not allege scienter because possession can be unknowing. We do not agree that the

indictment alleges only “possession.” Our case law instructs us to consider all the allegations in the

indictment when

det ermining whether knowledge is fairly imported. Essentially, the indictment

alleges that Henry possessed a firearm at a time when he was subject to a court order issued after a

hearing--of which he received actual notice and an opportuni ty to participate--and the court order

“restrained [Henry] from harassing, stalking, or threatening Michelle Henry,

. . . or their children,

or engaging in other conduct that would place Michelle Henry or her children in reasonable fear of

bodily injury and said court order included a finding that [Henry] represents a credible threat to the

physical safety of Michelle Henry or her children.” 3

While it is true that the allegations may not necessarily encompass a finding of knowledge,

we have determined that a knowledge requireme n t may be inferred. In B errios-Centeno

, the

defendant was charged in an indictment with one count of being present in the United States as a

previously deported alien in violation of 8 U.S.C. § 1326(a) and (b)(2), which does not contain an

explicit mens rea element. 250 F.3d 294 (5th Cir. 2001). The indictment did not allege any intent

element, and the defendant moved to dismiss on th at basis. On appeal, we determined that the

offense was, like the instant offense, a general intent o ffense and that the mens rea element was

material or essential. Nonetheless, we concluded the indictment’s allegations that the defendant was4 We note that because the defendant had objected the indictment was not read for maximum

liberalit y.

9 deported, removed, and subsequently present in the United States without the consent of the Attorney

General fairly conveyed the defendant’s presence was a voluntary or knowing act. 4 We now observe

that, in theory at least, those allegations might encompass an act that was not voluntary (such as being

kidnapped and forced to re-enter the United States).

Similarly, the allegations in the instant indictment could, in theory, encompass possession that

was not “knowing.” However, as previously set forth, because Henry can show no prejudice, we are

to read the indictment with maximum liberality and find it sufficient unless it is so defective that by

any reasonable construction, it fails to charge the offense for which he was convicted. A reasonable

construction of the indictment is that knowledge could be inferred with respect to Henry’s possession

of the firearm be c ause an “unknown” possession would not appear to be relevant to the behavior

prohibited by the agreed protective order, i.e., h arassing, stalking, or threatening. In sum, although

the term “knowingly” was omitted from the indictment, we are persuaded that the facts set forth in

the i ndictment (reinforced with the appropriate statutory citation), read with maximum liberality,

fairly imported the knowledge requirement contained in the statute. U nder these circumstan ces,

Henry has not shown

t hat t he indictment was fatally defective. We of course express no opinion

whether the indictment would be sufficient if not read with maximum liberality.

In the further alternative, Henry argues that even if this Court upholds the indictment, the

factual basis is insufficient to demonstrate either that he knowingly possessed the firearm or that he

knew he was under a state court restraining order at the time of the alleged possession. We disagree.

With respect to Henry’s knowledge of possession of the gun, the factual basis provided that10

“Mi chelle Henry advised the rifle was not hers and that Ronald Henry had carried it into the

residence. Ronald Henry had additional shells for the rifle in his possession.” After the prosecutor

r ead the factual basis at the guilty plea hearing, the court asked Henry whether everything in the

factual basis was true. Henry respo nded affirmatively. The factual basis established that Henry

knowingly possessed the firearm.

With respect to the restraining order, the factual basis provided that:

Ronald Eugene Henry was subject to a protective order issued

September 15, 1998, following a he a ring before Judge Richard

Danbold. The protective order stated that there had been family

violence, and a continued likelihood of continuing family violence and

prohibited Ronald Henry from having any contact with Michelle

Henry or her two children or from going within two hundred yards of

the residence on Horseshoe Lane for one year.

As stated, Henry admitted that everything in the factual basis was true. Henry argues that these facts

do not establish that he knew he was under a state court restraining order at the time of the alleged

possession. The record reflects, however, t hat Henry signed the agreed protective order

approximately two months prior to the date of the instant offense. This contention is wholly without

merit.

B. SECOND AMENDMENT CLAIM

Henry next argues that § 922(g)(8) violates the Second Amendment because it interferes with

the rig ht t o keep and bear arms. He contends that § 922(g)(8)’s infringement of that right is not

justified b y a compelling governmental interest. I n Emerson

, this Court determined that the

application of section 922(g)(8) to Emerson did not violate his Second Amendment rights. 2 70 F.3d

at 260-64. We explained that “Co ngress in enacting section 922(g)(8)(C)(ii) proceeded on the

assumption that the laws of the several states were such that court orders, i ssued after noti ce and5 Henry also contends that § 922(g)(8) is unconstitutional because it violates the Commerce

Clause. S pecifically, he argues that § 922(g)(8) does not require a “substantial” effect on interstate

commerce. I n the alternative, Henry contends that the statute is unconstitutional as applied to him.

He argues that the indictment fails to allege and the factual basis for his guilty plea does not support

a finding of a substantial effect on interstate commerce.

In United Sta tes v. Pierson , 139 F.3d 501, 503-04 (5th Cir. 1998)

, this Court held that

§ 922(g)(8) was a constitutional exercise of Congress’s power under the Commerce Clause and that

§ 922(g)(8 ) was co nst itutionally applied to a defendant who possessed firearms that were

m anufactured out-of-state. Henry concedes that his contentions are foreclosed by our precedent

. He raises the arguments to preserve them for further review.

11 hearing, should not embrace the prohibitions of paragraph (C)(ii) unless such either were no t

contested or evidence credited by the court reflected a real threat or danger of injury to the protected

party by the party enjoined.” Id

. at 262. We concluded that Texas law meets these general minimum

standards as a Texas state court may not issue a temporary restraining order unless the evidence

clearly establishes that the applicant is threatened with an actual, irreparable injury. I d

. at 262-63.

We further held that we were precluded from conducting a collateral revie w of t he validity of the

state order, provided that the order is not so “transparently invali d” as t o have “only a frivolous

pretense to validity.” Id

. at 263-64. Ultimately, we held that the nexus between t he firearm

possession by the party so enjoined and the threat of lawless violence was sufficient (“though likely

barely so”) to support the deprivation of the enjoined party’s Second Amendment right to keep and

bear arms. I d

. at 264. Henry has not shown t hat t he district court erred in denying his motion to

dismiss the indictment on the ground that it violated his Second Amendment right to keep and bear

arms. 5

C. SENTENCING

Admitting that he failed to object below, Henry c ont ends that the district court committed

plain error in performing his criminal-history c alculation. I f a defendant fails to object properly at12

sentencing, he waives his right to full appellate review, and this Court reviews only for plain error.

See United States v. Krout , 66 F.3d 1420, 1434 (5th Cir. 1995). “In order to show plain error, the

appellant must show that there was an error, that it was plain (meaning ‘clear’ or ‘obvious’) and that

the error affects substantial rights.” Id.

Henry argues that the district court plainly erred by including two points in his criminal-history

calculation for a prior one-year sentence for criminal trespass that was imposed upon an adjudication

of guilt for conduct that was part of the offense of co nviction. I n performing the criminal history

calculation, the district court adds two points “for each prior sentence of imprisonment” of at least

sixty days and no t exceeding one year and one month. U.S.S.G. § 4A1.1(a) and (b). “The term

‘prior sentence’ means any sentence previously imposed upon adjudication of guilt” provided that the

sentence is “for conduct not part of the instant offense.” Id. § 4A1.2(a)(1).

The Government concedes that the district court erroneously included two points in Henry’s

criminal-history calculation for a prior sentence that was imposed upon an adjudication of guilt for

conduct that was part of the offense of conviction. T he Government further urges this Cour t to

remand Henry’s case for re-sentencing. We agree. The district court committed plain error by

including two points in Henry’s criminal-history calculation. Henry’s state conviction for criminal

trespass and federal conviction for possession of a firearm while under a restraining order clearly

resulted from the same conduct on November 14, 1998. Accordingly, we vacate and remand Henry’s

sentence for further proceedings.

D. CONCLUSION

For the above reasons, we AFFIRM the district court’s judgment of conviction and VACATE

and REMAND Henry’s sentence for re-sentencing.