1District Judge of the Northern District of California,

sitting by designation.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-40176

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LEROY SPIRES, III,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

March 21, 1996

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER,1

District Judge.

DUHÉ, Circuit Judge:

Defendant appeals his conviction and sentence contending that

the law he broke, 18 U.S.C. § 922(g), is unconstitutional, the

judge improperly instructed the jury and his sentence is too harsh.

None of his contentions merit reversal.

Leroy Spires is a convicted felon who, while on state

probation, was charged with a drug violation by Texas authorities.

In return for leniency, Spires and his wife agreed to cooperate
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with the West Central Texas Interlocal Crime Task Force. During

their service to the task force, Spires and his wife showed a task

force agent a gun in their truck that was owned by Mrs. Spires.

The task force agent told the couple that they could not carry a

gun and that they should leave the gun in the truck and put it away

at home. 

Over a year later, Spires met with his state probation

officer, Janice Hale. Spires told Hale that he had a gun in his

truck and intended to pawn it. Hale reminded Spires that one

condition of his probation was that he not possess a firearm.

After Spires left the meeting, Hale followed Spires to the pawn

shop and reported him to the police. The police arrested Spires

several hours later. After receiving his Miranda warnings, Spires

admitted that he had pawned the gun. 

Spires pleaded not guilty to possession by a felon of a

firearm which had been previously shipped in interstate commerce in

violation of 18 U.S.C. § 922(g). Spires was convicted and

sentenced. On appeal, Spires argues that § 922(g) is

unconstitutional under the reasoning of United States v. Lopez, 115

S.Ct. 1624 (1995), that he was entitled to a jury instruction on

the defense of entrapment by estoppel and that the district court

abused its discretion when it denied Spires a two-level sentence

reduction for acceptance of responsibility. 

Spires argues that the reasoning of Lopez, which held 18

U.S.C. § 922(q) unconstitutional, renders § 922(g) unconstitutional

as well. Because Spires did not challenge the constitutionality of
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§ 922(g) at trial, we review only for plain error. United States

v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993); United States v.

Calverley, 37 F.3d 160 (5th Cir. 1994)(en banc). To be plain, the

error must be clear under law current at the time of trial. Olano,

113 S.Ct. at 1777; Calverley, 37 F.3d at 162-63. “[T]hey are

errors which are so conspicuous that ‘the trial judge and

prosecutor were derelict in countenancing [them], even absent the

defendant’s timely assistance in detecting [them].’” Calverley, 37

F.3d at 163 (citing United States v. Frady, 456 U.S. 152 (1982)).

Spires argues that we must consider Lopez even though rendered

after his trial because Lopez establishes a new rule of conduct for

criminal prosecutions and must be applied retroactively. Griffith

v. Kentucky, 479 U.S. 314 (1987); United States v. Knowles, 29

F.3d 947 (5th Cir. 1994). We do not decide whether this case

falls within the parameters of Griffith or Knowles because, even

after Lopez, the failure to address the constitutionality of §

922(g) when not raised by defendant is not plain error.

In Lopez, the Supreme Court held that in enacting 18 U.S.C.

§ 922(q), which criminalizes possession of a firearm in a school

zone, Congress exceeded its power under the Commerce Clause. The

court held that the possession of firearms on school grounds did

not substantially affect commerce because § 922(q) was not an

essential part of a larger regulation of economic activity and it

did not contain a jurisdictional element which would ensure,

through case-by-case inquiry, that the firearm possession affected

interstate commerce. Lopez, 115 S.Ct. at 1631. Lopez does not
 

2Defendant alludes to but prudently does not raise a similar

defense of acting under public authority. The public authority

defense is available when the defendant is engaged by a government

official to participate or assist in covert activity. United

States v. Achter, 52 F.3d 753 (8th Cir. 1995). One of the

conditions imposed by the task force on cooperating individuals is

that the individual not carry a firearm. The task force agent’s

instruction to Spires and his wife was consistent with the task

force requirements.

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address § 922(g). It does not determine whether § 922(g) is an

essential part of a larger regulation of economic activity nor does

it address whether the § 922(g) requirement that the firearm have

traveled in commerce ensures on a case-by-case basis that the

possession of a firearm by a felon affected interstate commerce.

In contrast, the precursor to § 922(g) was upheld as a valid

exercise of Congress’s commerce clause power long before Lopez.

Scarborough v. United States, 431 U.S. 563 (1977); United States v.

Bass, 404 U.S. 336 (1971); United States v. Wallace, 889 F.2d 580

(5th Cir. 1989), cert. denied, 497 U.S. 1006 (1990). Additionally,

§ 922(g) has survived Commerce Clause challenges after Lopez in the

Seventh and Ninth Circuits. United States v. Bell, 70 F.3d 495

(7th Cir. 1995); United States v. Collins, 61 F.3d 1379 (9th Cir.

1995); United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995). 

The pre- and post-Lopez jurisprudence is fatal to Spires’s

claim of plain error. Even should Spires’s contention that Lopez

renders 922(g) unconstitutional be correct, it is not plainly so.

Spires next argues that his conviction should be reversed

because the district court refused to instruct the jury on the

defense of entrapment by estoppel.2 A conviction can not be

overturned for failure to instruct the jury on a defense unless the
 

3See also United States v. Corso, 20 F.3d 521 (2d Cir. 1994);

United States v. Smith, 940 F.2d 710 (1st Cir. 1991). 

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requested but omitted instruction has an evidentiary basis in the

record which would lead to acquittal. United States v. Duvall, 846

F.2d 966 (5th Cir. 1988). The evidence at Spires’s trial precludes

application of the defense. 

The defense of entrapment by estoppel is applicable when a

government official or agent actively assures a defendant that

certain conduct is legal and the defendant reasonably relies on

that advice and continues or initiates the conduct. Cox v.

Louisiana, 379 U.S. 559 (1965)(convictions for demonstrating near

courthouse reversed where highest police officials of city, in

presence of sheriff and mayor, gave demonstrators permission to

picket across the street from courthouse); Raley v. Ohio, 360 U.S.

423 (1959)(convictions for failure to testify reversed because

inquiring body told defendants they could invoke Fifth Amendment).3

The defense is a narrow exception to the general rule that

ignorance of the law is no excuse and is based on fundamental

fairness concerns of the Due Process Clause. The focus of the

inquiry is on the conduct of the government not the intent of the

accused. 

Spires is not entitled to an instruction on the defense

because the task force agent is not an authorized federal

government agent. To satisfy the requirements of the defense when

charged with a federal crime, a defendant is required to show

reliance either on a federal government official empowered to
 

4Accord, United States v. Caron, 64 F.3d 713 (1st Cir. 1995);

United States v. Ethridge, 932 F.2d 318 (4th Cir. 1991), partial

reh’g granted on other grounds, No. 94-2026, __ F.3d __, 1996 WL

71722 (1st Cir. Feb. 26, 1996). 

6

render the claimed erroneous advice, or on an authorized agent of

the federal government who has been granted the authority from the

federal government to render such advice. United States v.

Brebner, 951 F.2d 1017 (9th Cir. 1991); United States v.

Bruscantini, 761 F.2d 640 (11th Cir. 1985).4 This record reveals

that the task force agent does not consider herself a federal

officer or agent and has never held a federal commission. The

agent’s commission was held through the Jones County Sheriff’s

office. The task force is a federally funded but state operated

investigative unit ultimately run by the Texas Governor’s office.

The task force and its agents are state actors. Federal funding

alone does not make agents of the task force federal government

officials or agents.

Spires’s last complaint is that the district court

erroneously denied Spires a two-level reduction of his sentencing

level for acceptance of responsibility under Section 3E1.1 of the

Sentencing Guidelines. Whether a defendant has accepted

responsibility for a crime is a factual question and the standard

of review is even more deferential than clear error. United States

v. Allibhai, 939 F.2d 244 (5th Cir. 1991). Because the trial

court’s assessment of a defendant’s contrition will depend heavily

on credibility assessments, the “clearly erroneous” standard will

nearly always sustain the judgment of the district court. United
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States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989). 

Spires argues that because he did not dispute his factual

guilt and admitted all elements of the offense, he is entitled to

the reduction. He relies on Application Note 2 of § 3E1.1 which

states in part:

In rare situations a defendant may clearly demonstrate an

acceptance of responsibility for his criminal conduct

even though he exercises his constitutional right to

trial. This may occur, for example, where a defendant

goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional

challenge to a statute or a challenge to the

applicability of a statute to his conduct).

Sentencing Guidelines § 3E1.1, Application Note 2 (1994). This

case is not one of those “rare situations.” Compare United States

v. Fells, No. 95-10296, ___ F.3d ___ (5th Cir. March 7,

1996)(defendant challenged legality of conviction in improper

venue). At trial, Spires put forth two defenses, entrapment by

estoppel and duress, both of which required proof of additional

facts. The record reveals that these additional facts were

disputed at trial and Spires’s version of the facts was rejected by

the jury. 

We are persuaded by the Ninth Circuit’s treatment of a similar

argument in United States v. Molina, 934 F.2d 1440 (9th Cir. 1991).

In Molina, the defendant admitted the factual elements of the

offense but presented the defense of entrapment. The court

recognized that by its very nature, the defense of entrapment

requires an admission of the actual criminal activity. The court

nevertheless found no error in refusing the reduction where, on

defense of entrapment, the defendant provided “a story very
8

different from the one the government offered.” Molina, 934 F.2d

at 1450-51. 

We AFFIRM Spires’s conviction and sentence.