United States v. Daugherty

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-20871
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MITCHELL RAY DAUGHERTY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
August 28, 2001
Before JOLLY, SMITH, and WIENER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Mitchell Daugherty appeals his conviction
of violating 18 U.S.C. § 922(g)(1) (2001),
which prohibits convicted felons from pos-
sessing firearms “in and affecting” interstate
commerce. We affirm.
I.
Daugherty was convicted in state court of
delivery of marihuana and injury to a child and
was imprisoned. In 1985, the state court
released him and placed him on “shock proba-
tion” for ten years. In 1995, the court dis-
charged him from probation.1
In March 2000, police officers responded to
a disturbance call placed by two sisters staying
in a motel room. They complained that
1 The order read, in pertinent part: “and it
further appearing to the satisfaction of the Court
that the period of probation herein has expired, and
that all conditions of probation have been
satisfactorily fulfilled, . . . the Defendant is dis-
charged from probation.”

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2
Daugherty had repeatedly harassed and
threatened them. The officers found Daugher-
ty standing outside the motel room, talked to
him, and searched him for weapons, finding
none. They then spoke with the two sisters,
who said Daugherty had a weapon in his truck.
One of the officers found a rifle, which
Daugherty admitted he owned and which was
manufactured in Egypt and imported through
Knoxville, Tennessee.
II.
Daugherty was indicted for being a felon in
possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). He filed
a motion to dismiss the indictment on the
ground that his two state felony convictions
did not prohibit him from possessing a firearm,
because he had been discharged from pro-
bation for both offenses. The court denied
that motion.
Daugherty consented to a bench trial based
on a written stipulation of facts. After the
government had presented its case, Daugherty
moved for a judgment of acquittal under FED.
R. CRIM. P. 29 on the basis that there was an
insufficient nexus with interstate commerce.
Daugherty again argued that his completion of
probation allowed him to possess a firearm.
The court overruled both motions and found
Daugherty guilty.
III.
The question whether a felony conviction
may serve as a predicate offense for a prosecu-
tion for being a felon in possession of a firearm
pursuant to § 922(g)(1) is “purely a legal one.”
United States v. Thomas, 991 F.2d 206, 209
(5th Cir. 1993). Consequently, “our review is
plenary.” Id. We affirm a § 922(g)(1)
conviction if substantial evidence exists to sup-
port it. United States v. Ybarra, 70 F.3d 362,
364 (5th Cir. 1995). The court must decide
“whether any substantial evidence supports the
finding of guilty,” id. (quoting United States v.
Davis, 993 F.2d 62, 66 (5th Cir. 1993)), and
“whether the evidence is sufficient to justify
the trial judge, as trier of the facts, in
concluding beyond a reasonable doubt that the
defendant was guilty.” Id.
No person “who has been convicted in any
court of a crime punishable by imprisonment
for a term exceeding one year” may possess a
firearm “in or affecting” interstate commerce.
§ 922(g)(1).2 The law of the jurisdiction in
which the proceedings were held determines
what constitutes a crime.3 So, Texas law
2 Section 922(g)(1) provides:
(g) It shall be unlawful for any personSS
(1) who has been convicted in any court of,
a crime punishable by imprisonment for a
term exceeding one year; . . .
to ship or transport in interstate or foreign
commerce, or possess in or affecting com-
merce, any firearm or ammunition; 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) (2001).
3 Beecham v. United States, 511 U.S. 368, 371
(1994).
What constitutes a conviction of such a
crime shall be determined in accordance
with the law of the jurisdiction in which the
proceedings were held. Any conviction
which has been expunged, or set aside or for
which a person has been pardoned or has
had civil rights restored shall not be
(continued...)

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3
determines whether Daugherty was a convict-
ed felon for purposes of § 922(g)(1). See,
e.g., United States v. Dupaquier, 74 F.3d 615,
617 (5th Cir. 1996).
“Not all . . . convictions, however, count
for purposes of § 922(g) . . . .” Caron v.
United States, 524 U.S. 308, 313 (1998). A
conviction for which the defendant’s civil
rights have been restored is not a predicate
offense “unless such . . . restoration of civil
rights expressly provides that the person may
not ship, transport, possess, or receive fire-
arms.” § 921(a)(20).4
Section 922(g)(1) has three requirements:
“(1) that the defendant previously had been
convicted of a felony; (2) that he possessed a
firearm; and (3) that the firearm traveled in or
affected interstate commerce.” United States
v. Gresham, 119 F.3d 258, 265 (5th Cir. 1997)
(citing United States v. Fields, 72 F.3d 1200,
1211 (5th Cir. 1996)). The parties have stipu-
lated that the first two factors are met.
Daugherty, however, contends that, under
TEX. CODE CRIM PROC. ANN. art. 42.12,§
20(a) (Vernon Supp. 2001), the successful
completion of his probation restored his civil
rights such that he no longer should be con-
sidered convicted.
That statute provides:
If the judge discharges the defendant un-
der this section, the judge may set aside
the verdict or permit the defendant to
withdraw his plea, and shall dismiss the
. . . indictment against the defendant,
who shall thereafter be released from all
penalties and disabilities resulting from
the offense or crime of which he has
been convicted . . . .
Daugherty reasons that, consequently, his two
felony convictions cannot serve as predicate
offenses under § 921(a)(20).
We have a two-part test to determine
whether the “unless clause” of § 921(a)(20),
which supports a § 922(g)(1) conviction, is
triggered. Dupaquier, 74 F.3d at 617. First,
we ask whether “the state which obtained the
underlying conviction revives essentially all
civil rights of convicted felons, whether af-
firmatively with individualized certification or
passively with automatic reinstatement.” Id.
(quoting Thomas, 991 F.2d at 213). Second,
we “determine whether the defendant was nev-
ertheless expressly deprived of the right to
possess a firearm by some provision of the re-
storation law or procedure of the state of the
underlying conviction.” Id. (emphasis added).
Because Daugherty’s rights were passively
revived by operation of law, not by individu-
3(...continued)
considered a conviction for purposes of this
chapter, unless such pardon, expungement,
or restoration of civil rights expressly pro-
vides that the person may not ship, trans-
port, possess, or receive firearms.
18 U.S.C. § 921(a)(20) (2001).
4 This is referred to as the “unless clause” of
§ 921(a)(20). See Caron, 524 U.S. at 309. In
passing the Firearm Owners Protection Act of
1986, Pub. L. No. 99-308, § 1(a), 100 Stat. 449
(1986), Congress amended Section 921(a)(20) “to
give federal effect to state statutes that fully restore
the civil rights of convicted felons when they are
released from prison, or are granted a pardon, or
have their convictions expunged.” Thomas, 991
F.2d at 209.

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4
alized certification,5 we examine Texas law to
decide whether any provision or procedure
limits his right to possess firearms. See Caron,
524 U.S. at 313-15, 317-18 (Massachusetts
law). The government contends that, even
assuming that Daugherty’s general civil rights
were restored under art. 42.12, § 20, so as to
fulfill the first part of the Dupaquier test, some
“procedure of the state of the underlying
conviction” expressly deprived him of the right
to possess a firearm.6
The government argues that TEX. PENAL
CODE ANN. § 46.04(a) (Vernon 2001) pro-
hibits Daugherty from possessing firearms.
That statute generally provides that it is un-
lawful for a person convicted of a felony to
possess a firearm. Daugherty claims that a
person discharged from probation under art.
42.12, § 20, is no longer “convicted.”
Neither art. 42.12, § 20, nor § 46.04 ex-
plains whether successful completion of proba-
tion supervision renders one “no longer con-
victed.” Before enactment of the “unless
clause,” however, the Supreme Court con-
cluded that one is considered convicted even
after the completion of probation.7 This cir
cuit has reached the same conclusion. In
United States v. Padia, 584 F.2d 85, 86 (5th
Cir. 1978), we affirmed a conviction of receiv-
ing firearms in interstate commerce by a con-
victed felon, stating that probation does not
erase the conviction8 but only “rewards a con-
victed party for good behavior during proba-
tion by releasing him from certain penalties
and disabilities otherwise imposed upon con-
victed persons by Texas law.” Id. (citing Gon-
zalez de Lara v. United States, 439 F.2d 1316,
1318 (5th Cir. 1971)).9
Although Padia and Lehmann applied art.
5 This circuit has considered only situations in
which the defendant’s civil rights were passively
restored by operation of state law. See Thomas,
991 F.2d at 209-16 (Texas law); Dupaquier, 74
F.3d at 617-19 (Louisiana law).
6 See Dupaquier, 74 F.3d at 617; Caron, 524
U.S. at 316-17 (holding that, because Massachu-
setts law expressly provided that felons could not
possess firearms, that law activated the “unless
clause” of § 921(a)(20) and prevented petitioner
from owning a firearm).
7 See Dickerson v. New Banner Inst., Inc., 460
(continued...)
7(...continued)
U.S. 103, 112 n.6, 113-14 (1983). There, the
Court stated that “Congress’ intent in enacting
§§ 922(g) and (h) . . . was to keep firearms out of
the hands of presumptively risky people.” Id. at
112 n.6 (citation omitted). Bearing legislative in-
tent in mind, the Court stated: “[F]or purposes of
the federal gun control laws, we equate a plea of
guilty and its notation by the state court, followed
by a sentence of probation, with being convicted
within the language of §§ 922(g) and (h).” Id. at
114 (citation omitted).
8 Padia involved an application of TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 7 (subsequently
recodified as art. 42.12, § 20), to 18 U.S.C.
§ 922(h). Padia, 584 F.2d at 85.
9 Accord United States v. Morales, 854 F.2d
65, 68 (5th Cir. 1988) (“We have previously held
that persons given probated sentences for Texas
felony convictions, whether the probations are still
pending, . . . or successfully completed, . . . are
persons convicted for purposes of 18 U.S.C. §§
922(g), (h) (1982). The rationale of those
precedents furnish guidance today.”) (citations and
quotation marks omitted); United States v.
Lehmann, 613 F.2d 130, 135 (5th Cir. 1980) (fol-
lowing Padia’s holding that “a prior conviction did
exist where a defendant, convicted of a crime in
Texas, was given probation”).

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5
42.12, § 7, to § 922(g)(1) before enactment of
the “unless clause,” see Padia, 584 F.2d at 86,
this circuit’s precedent regarding the effect
that probation has on a conviction in Texas has
not changed since Congress enacted the “un-
less clause.” In United States v. Morales, 854
F.2d 65, 68 (5th Cir. 1988), we noted
specifically that the successful completion of
probation does not expunge a conviction for
purposes of § 922(g). We decided Morales
two years after Congress amended § 922(g) to
include the “unless clause.” Thus, under Fifth
Circuit precedent, Daugherty remained a
convicted felon.
The government also contends that the
Concealed Handgun Act (“CHA”), TEX.
GOV’T CODE ANN. § 411.171(4) (Vernon
Supp. 2001), prevents Daugherty from owning
a firearm. The government strongly relies on
Tune v. Tex. Dep’t of Pub. Safety, 23 S.W.3d
358 (Tex. 2000), in which the defendant was
denied a license to carry a concealed handgun
because he had been convicted of a felony.
See id. at 360. He argued that, because his
conviction had been was set aside under art.
42.12, § 20, he was no longer “convicted” un-
der the CHA. Id. at 363. The Texas Supreme
Court, noting that the CHA deemed a felon
convicted “after an adjudication of guilt is
entered against him whether or not his sen-
tence is subsequently probated and he is dis-
charged from supervision,” id. (citation omit-
ted), declared that Tune was not eligible for a
concealed-handgun license. Id. at 364. After
Tune, most Texas courts have held that a per-
son applying for a concealed-handgun license
remains convicted for purposes of the CHA.10
Daugherty responds correctly that Tune ap-
plied only to the definition of “convicted” as
provided in the CHA and thus is not squarely
on point here. The court in Tune stated, how-
ever, that “the Legislature may wish to keep
concealed handguns out of the hands of per-
sons who have been convicted of a felony,
even if those persons satisfactorily completed
community supervision.” Id. That rationale
also applies here, because the Texas Legisla-
ture has passed laws designed to keep firearms
out of the hands of convicted felons. See
§ 46.04.
Both § 46.04 and the CHA demonstrate the
power of the legislature “to regulate the wear-
ing of arms, with a view to prevent crime.”
TEX. CONST. art. I, § 3. Thus, Tune provides
strong analogous support for affirming Daugh-
erty’s conviction. Even without Tune,
however, Padia and its progeny are con-
10 See Texas Dep’t of Pub. Safety v. McLendon,
35 S.W.3d 632, 633 (Tex. 2000) (per curiam)
(following Tune and rendering judgment that Mc-
(continued...)
10(...continued)
Lendon was not eligible for a license); Tex. Dep’t
of Pub. Safety v. Kreipke, 29 S.W.3d 334, 337-38
(Tex. App.SSHouston [14th Dist.] 2000, pet. de-
nied) (holding that Kreipke was not eligible for a
concealed-handgun license because of a previous
felony conviction, even though his crime was no
longer a felony and the conviction had been set
aside); Tex. Dep’t of Pub. Safety v. Randle, 31
S.W.3d 786, 787-88 (Tex. App.SSHouston [1st
Dist.] 2000, no pet.) (following the reasoning of
Kreipke and rendering judgment that defendant was
not eligible for a concealed handgun license). But
see Cuellar v. State, 40 S.W.3d 724, 725-29 (Tex.
App.SSSan Antonio 2001, no pet.) (holding that
the art. 42.12 order relieved Cuellar of the penalty
limiting his right to possess a firearm); Kreipke, 31
S.W.3d at 338-40 (Wittig, J., concurring in part
and dissenting in part) (stating that “[t]oday’s
erosion of right, however slight, is not unlike one of
the first drops of rain on Noah’s head”) (emphasis
added).

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trolling.
Under Texas law, Daugherty remained con-
victed even after successfully completing
probation.11 Consequently, he is subject to the
penalties that state law imposes on convicted
felons. Section 46.04 prohibits felons from
possessing firearms outside their homes. Ac-
cordingly, Texas statutory law activated the
“unless clause” in § 921(a)(20) and prevents
Daugherty from possessing a firearm.
IV.
Daugherty avers that the government failed
to prove that he possessed a firearm “in and
affecting” interstate commerce, as required by
§ 922(g)(1). See Gresham, 119 F.3d at 265
(citing Fields, 72 F.3d at 1211). He claims
that this case is “a classic example of a purely
local offense.” In evaluating a Commerce
Clause challenge under United States v. Lopez,
514 U.S. 549 (1995), however, we repeatedly
have said that evidence similar to that pre-
sented in Daugherty’s case suffices to maintain
a § 922(g)(1) conviction,12 and Daugherty
admits as much. Thus, his constitutional
challenge to § 922(g) fails, because “the
constitutionality of § 922(g) is not open to
question.” United States v. DeLeon, 170 F.3d
494, 499 (5th Cir.), cert. denied, 528 U.S. 863
(1999).
Daugherty urges us to reconsider the inter-
state commerce element of § 922(g)(1) in light
of two recent, intervening decisions: United
States v. Morrison, 529 U.S. 598 (2000), and
Jones v. United States, 529 U.S. 848 (2000).
Both, however, are distinguishable from the
present case, because a plain jurisdictional ele-
ment exists in § 922(g), and there is stipulated
evidence showing that the gun traveled in
interstate commerce. Neither Jones nor Mor-
rison affects or undermines the constitution-
ality of § 922(g).
IV.
Because the Texas Supreme Court has not
addressed the first issue in this case, we must
“decide the case as would an intermediate ap-
pellate court of the state in question . . . .”
Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d
1245, 1247 (5th Cir. 1997) (per curiam) (quot-
ing DiPascal v. N.Y. Life Ins. Co., 749 F.2d
255, 260 (5th Cir. 1985)). There is substantial
support in Texas law for the proposition that
persons convicted of a felony are still consid-
ered convicted felons even after they success-
fully complete community supervision. This
circuit has repeatedly reached that conclusion,
and Daugherty cites no cases in opposition.
There was a sufficient nexus between Daugh-
erty’s possession of the weapon and interstate
commerce.
AFFIRMED.
11 See United States v. Sauseda, 2001 WL
694490, at *3 (W.D. Tex. Jan. 10, 2001) (finding
defendant guilty of violating. § 922(g)(1)).
12 See United States v. Kuban, 94 F.3d 971 (5th
Cir. 1996) (affirming a § 922(g)(1) conviction
where the weapon was manufactured in Belgium
and possessed in Texas); United States v. Rawls,
85 F.3d 240 (5th Cir. 1996) (affirming a § 922-
(g)(1) conviction where the weapon was manu-
factured in Massachusetts and possessed in Texas).

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