           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 14, 2009

                                       No. 08-10596                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,
v.

CHRISTOPHER JOE CANTU,

                                                   Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:07-CR-197


Before DAVIS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Christopher Joe Cantu appeals his conviction for being a felon in
possession of a firearm. We affirm.
                                              I
       Officers Michael Conway and Patrick Burke were patrolling in a high
crime area of Dallas and observed a red Eagle Talon running two stop signs.
The officers turned on their emergency lights with the intent to make a traffic



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 08-10596

stop. The red car pulled into a grassy area alongside of a house, and the police
car pulled up a distance behind it.
      Officers Conway and Burke testified that they watched Cantu exit the car
and walk toward the left front quarter panel of a parked Suburban carrying a
medium-sized object. They then saw Cantu squat down below the Suburban and
place the object underneath the vehicle. After detaining Cantu, the officers
approached the place where Cantu had crouched near the Suburban and found
a blue bullet proof vest and a firearm.
      A jury convicted Cantu of being a felon in possession of a firearm.
Following Cantu’s conviction, the presentence report (PSR) recommended that
Cantu receive a base offense level of twenty-four because he committed the
instant offense after having at least two prior felony convictions for burglaries
of a habitation and a conviction for aggravated robbery with a deadly weapon.
Additionally, because Cantu had three prior convictions for a violent felony, he
was classified as an armed career criminal subject to an enhanced sentence
under the Armed Career Criminal Act (ACCA). This increased his recommended
total offense level to thirty-three. Based on a total offense level of thirty-three
and a criminal history category of VI, Cantu’s sentencing guidelines range was
235-293 months. The district court sentenced Cantu to a term of imprisonment
of 284 months. Cantu timely appealed.
                                              II
      Cantu argues that the evidence was insufficient to support his conviction.
In analyzing a sufficiency of the evidence challenge, this court “must decide
whether a rational trier of fact could have found that each element of the
charged criminal offense was proven beyond a reasonable doubt.” 1 “We consider




      1
          United States v. Guidry, 406 F.3d 314, 317-18 (5th Cir. 2005).

                                               2
                                  No. 08-10596

all the evidence in a light most favorable to the [G]overnment, drawing all
inferences and credibility choices in its favor.”2
      To prove possession of a firearm by a convicted felon under 18 U.S.C.
§ 922(g), the Government must prove that the defendant: (1) had previously been
convicted of a felony; (2) possessed a firearm; and (3) that the firearm traveled
in or affected interstate commerce.3      Cantu contests the sufficiency of the
evidence only as to the third element.
      “The interstate commerce element of a § 922(g)(1) charge is satisfied where
the [G]overnment demonstrates that the firearm was manufactured out of
state.”4 At trial, Jennifer McCarty, an expert in interstate nexus training,
testified that the firearm seized was manufactured in Croatia, shipped to the
Springfield Armory in Illinois, and was eventually sold by a dealer to a consumer
in Texas. The Government produced sufficient evidence from which a jury could
conclude beyond a reasonable doubt that the firearm possessed by Cantu
affected interstate commerce.
      Cantu also mounts an as-applied constitutional challenge to his conviction
under § 922(g)(1), arguing that the Government had to prove that his possession
of a firearm had a “substantial” effect on interstate commerce under United




      2
          Id. at 318.
      3
          Id.
      4
          Id.

                                         3
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States v. Lopez,5 United States v. Morrison,6 and Jones v. United States.7 As
Cantu concedes, this argument is foreclosed by our precedent.8
                                               III
       Cantu contends that the district court erred in instructing the jury that
constructive possession could provide a basis for a conviction in his case.
Because Cantu preserved his challenge to the jury instruction, our review is for
abuse of discretion.9
       “The trial court’s charge must not only be legally accurate, but also
factually supportable; the court may not instruct the jury on a charge that is not
supported by evidence.”10           In assessing whether the evidence sufficiently
supports the jury instruction, this court “view[s] the evidence and all reasonable
inferences that may be drawn from the evidence in the light most favorable to
the Government.” 11 Additionally, any error is subject to harmless error review.12
       The district court’s charge required the jury to find that Cantu “knowingly
possessed a firearm, as charged.” Cantu argues that there was no evidence to
support a finding of constructive possession because the Government failed to



       5
           514 U.S. 549 (1995).
       6
           529 U.S. 598 (2000).
       7
           529 U.S. 848 (2000).
       8
         See United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (“[N]either the holding
in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).”); United States
v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) (“Neither Jones nor Morrison affects or
undermines the constitutionality of § 922(g).”).
       9
           United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005).
       10
         United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (citation and
internal quotation marks omitted).
       11
            Id. (citation and internal quotation marks omitted).
       12
            Id.

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                                        No. 08-10596

show that the firearm was already under the Suburban and that Cantu knew of
its location. Assuming, arguendo, that Cantu is correct, any error is harmless.
      Possession of a firearm may be actual or constructive.13 Cantu does not
argue that the Government did not have evidence to prove actual possession.
Officers Conway and Burke provided unrebutted testimony that Cantu carried
objects from his car and placed them under the Suburban and that the officers
recovered the firearm and vest from that location. A rational juror could have
found beyond a reasonable doubt that Cantu had actual possession of the
firearm.      Thus, we conclude that any error in the jury instruction was
harmless.14
                                               IV
      Cantu argues that the district court erred in finding that he was subject
to the ACCA enhancement. “We review de novo the legal conclusions underlying
the district court’s application of the ACCA.”15
      Pursuant to the ACCA, a defendant convicted under 18 U.S.C. § 922(g)
who has three prior convictions “for a violent felony . . . committed on occasions
different from one another” is subject to a mandatory minimum sentence of
fifteen years imprisonment.16 A “violent felony” is defined by the ACCA as any
crime that is punishable by a term of imprisonment exceeding one year and “is
burglary, arson, or extortion, involves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 17


      13
           United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005).
      14
          See Mendoza-Medina, 346 F.3d at 134-35 (holding that the error in giving a
deliberate ignorance instruction was harmless because there was substantial evidence of
actual knowledge).
      15
           United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006).
      16
           18 U.S.C. § 924(e)(1).
      17
           § 924(e)(2)(B)(ii).

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                                         No. 08-10596

       The Supreme Court has interpreted “burglary” in § 924(e) to require that
the state statute contain, at a minimum, the following elements: “an unlawful
or unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” 18 Under Texas Penal Code § 30.02(a)(1), a person
commits burglary if, without the effective consent of the owner, that person
“enters a habitation, or a building (or any portion of a building) not then open to
the public, with the intent to commit a felony, theft, or an assault.” Further,
under Texas Penal Code § 30.02(a)(3) a person commits burglary if that person
“enters a building or habitation and commits or attempts to commit a felony,
theft, or an assault.” This court has previously held that the offense of burglary
of a habitation under Texas Penal Code § 30.02(a)(1) qualifies as a generic
burglary for purposes of the ACCA.19 This court has also determined that a
burglary conviction under § 30.02(a)(3) is not a conviction for generic burglary
because it does not require an intent to commit another crime at the time of
entry.20
       In determining whether an offense satisfies the ACCA, a court is limited
to “examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented,” 21 or to “some comparable judicial
record of this information.” 22 The court may examine a judicial confession to




       18
            Taylor v. United States, 495 U.S. 575, 598 (1990).
       19
          United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992); see also United States v.
Fuller, 453 F.3d 274, 278 (5th Cir. 2006) (same).
       20
            United States v. Constante, 544 F.3d 584, 585-86 (5th Cir. 2008).
       21
            Shepard v. United States, 544 U.S. 13, 16 (2005).
       22
            Id. at 26.

                                                6
                                         No. 08-10596

determine whether a prior conviction qualifies as a crime of violence.23
       Cantu contends that the Government failed to prove that he has three
prior convictions for violent felonies. Cantu does not dispute that his conviction
for aggravated robbery with a deadly weapon is a violent felony.                          The
Government also concedes that one of Cantu’s three burglary convictions does
not qualify under the ACCA because it was reduced to a misdemeanor offense.
Therefore, at issue are two of Cantu’s prior burglary convictions in Texas.
                                                A
       In regard to Cantu’s first burglary offense, case number F-9573956, the
Government supplemented the record on appeal with a confession by Cantu.
The confession reads, in relevant part, that Cantu did:
       unlawfully, knowingly and intentionally enter a habitation without
       the effective consent of . . . the owner thereof, with the intent to
       commit theft . . . .
       Through the production of Cantu’s confession, the Government has shown
that Cantu’s burglary conviction in case number F-9573956 violated Texas Penal
Code § 30.02(a)(1) and was therefore a violent felony.
                                                B
       Cantu claims that his second Texas burglary conviction, case number
F-9575353, does not qualify as a violent felony. Cantu did not object to the
ACCA enhancement based on this conviction in the district court. Therefore, we
review this claim for plain error.24 To prevail under the plain error standard,
Cantu must demonstrate (1) error, (2) that is clear and obvious, (3) that affected
substantial rights, and (4) that seriously affected the fairness, integrity, or



       23
         United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.) (holding that a federal
court may rely on a written judicial confession in determining the nature of a Texas offense
to which a defendant pleaded guilty), cert. denied, 129 S. Ct. 353 (2008).
       24
            United States v. Molina, 530 F.3d 326, 329 (5th Cir. 2008).

                                                7
                                      No. 08-10596

public reputation of judicial proceedings.25
      In case number F-9575353, the Government charged Cantu with the
alternative theories of burglary under Texas Penal Code § 30.02(a)(1) and
§ 30.02(a)(3). The indictment reads, in relevant part that:
                 Cantu, Christopher Joe, defendant,
      on or about the 9th day of June A.D. 1995 in the county of Dallas
      and said State, did
      unlawfully, knowingly and intentionally enter a habitation without
      the effective consent of . . . the owner thereof, with the intent to
      commit theft,
      and further, said defendant did knowingly and intentionally enter
      a habitation without the effective consent of . . . the owner thereof,
      and did then and there commit and attempt to commit theft.
      The Government produced a confession from Cantu that included only the
second sentence of the first paragraph and the entire second paragraph in the
indictment. The confession reads, in relevant part:
      On the 9 day of June 1995, in Dallas County, Texas, I did
      unlawfully,
                 consent of . . . the owner thereof with the intent to
                 commit theft,
                 and further, said defendant did knowingly and
                 intentionally enter a habitation without the effective
                 consent of . . . the owner thereof, and did then and there
                 commit and attempt to commit theft.
In addition to the specific admissions above, the confession included a general,
boiler-plate clause that stated, “I further judicially confess that I committed the
offense with which I stand charged exactly as alleged in the indictment in this
cause.”
      This court has previously considered information contained within a plea
document to determine the character of a prior offense even though the

      25
           Id.

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                                         No. 08-10596

information did not specifically relate to the charge in question. In United States
v. Lopez-DeLeon, the defendant had pled no contest in a California court to that
state’s equivalent of statutory rape and to one count of “lewd act with a child
under the age of 14.”26 Lopez-DeLeon was deported and was later arrested for
illegal reentry.27 At sentencing, the district court found that Lopez-DeLeon’s
prior conviction for statutory rape was a “crime of violence” pursuant to United
States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii).28              The California crime of
statutory rape does not meet the generic definition of statutory rape because a
person may be convicted for actions with a victim as old as seventeen. 29
Nevertheless, this court held that the defendant’s stipulation to the child’s
younger age in the related count sufficiently established a generic statutory
rape.30
       Similar to Lopez-DeLeon, here the sum of Cantu’s confession sufficiently
establishes that he committed a generic burglary. In the second paragraph of
the confession, Cantu admitted that he knowingly and intentionally entered a
habitation without the consent of the owner.                  In the portion of the first
paragraph of the indictment included in the confession, Cantu confessed that,
on the same date, he had the intent to commit theft.                    While the sentence
including the intent portion is of poor quality, it is legible and entered into
evidence without objection. Cantu’s generic admission that he committed the
offense as charged in the indictment, coupled with his specific admissions,



       26
            513 F.3d 472, 473, 474 n.2 (5th Cir. 2008).
       27
            Id. at 473.
       28
            Id.
       29
        Id. at 475 (“Thus, § 261.5(c) is overly broad for the purposes of defining statutory rape
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).”).
       30
            Id. at 475-76.

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                                           No. 08-10596

supports a conclusion that Cantu confessed to committing burglary under Texas
Penal Code § 30.02(a)(1).31 Therefore, we cannot say that the district court
clearly erred in its determination that Cantu’s Texas burglary conviction, case
number F-9575353, qualifies as a violent felony.
                                       *        *         *
       AFFIRMED.




       31
         See United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir. 2008) (holding that
the defendant’s specific confession of the crime charged as well as a boiler-plate statement that
he “committed the offense with which [he] stand[s] charged exactly as alleged in the
indictment in this case” conclusively established that the defendant’s prior conviction qualified
as a drug trafficking offense under the United States Sentencing Guidelines).

                                               10
