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

                                                                            FILED
                                                                         January 17, 2008

                                       No. 07-30177                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ROBERT W BROWN

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 06-CR-10008


Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Robert Brown pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). He reserved his right to appeal whether
his prior state-law conviction could serve as a predicate offense for a
prosecution under the federal felon-in-possession statute. For the reasons
that follow, we affirm.
       1.      Brown contends that his 1988 Louisiana conviction could not
               serve as a predicate offense to his federal felon-in-possession


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30177

                  prosecution. Both Brown and the United States agree that
                  whether his Louisiana conviction could serve as the predicate
                  offense depends on whether his probationary sentence for his
                  Louisiana conviction had been completed ten years before his
                  July 2005 arrest—in other words, whether he had completed his
                  Louisiana probation by July 1995.1 They disagree, however,
                  regarding when he completed his probation. Brown contends that
                  his probation ended in 1991. The Government contends that
                  Louisiana’s issuance of an arrest warrant for Brown for his
                  alleged probation violations in 1991 had the effect of continuing
                  his probation until 1996. Resolving this dispute is our lone issue
                  on appeal, for which we have plenary review.2
         2.       In Brown’s opening brief, he relies on two Louisiana Supreme
                  Court cases—State v. Phelps decided in 1979 and State v. Harris
                  decided in 1977—to support his position that his probation ended
                  in (and therefore his sentence was completed by) September
                  1991.3 In both Harris and Phelps, the Louisiana Supreme Court
                  held that the running of a probationary period is not
                  automatically suspended when an arrest warrant is issued;
                  instead, the period is suspended only if the warrant “cannot be
                  executed.”4 Brown argues that there has not been any showing
                  that his arrest warrant for allegedly violating his conditions on


         1
         See United States v. Dupaquier, 74 F.3d 615, 617–18 (5th Cir. 1996) (discussing the
interaction of the federal felon-in-possession statute and Louisiana law).
         2
             United States v. Daugherty, 264 F.3d 513, 514 (5th Cir. 2001).
         3
             See State v. Phelps, 377 So. 2d 341 (La. 1979); State v. Harris, 342 So. 2d 179 (La.
1977).
         4
             Phelps, 377 So. 2d at 342; Harris, 342 So. 2d at 181.

                                                  2
                                  No. 07-30177

          parole could not be executed and therefore the mere issuing of the
          warrant did not stop the running of his probation period. Thus,
          his probation ended in September 1991.
                 Brown’s argument cannot withstand close scrutiny of
          Harris and Phelps. When those courts mentioned the cannot-be-
          executed standard, they were simply quoting the then-existing
          statutory scheme under Louisiana law. As the Harris court
          explains, it was relying on Article 899 of the Louisiana Criminal
          Procedure Code, which provided that “[w]hen a warrant for a
          defendant’s arrest, issued [for a parole violation], cannot be
          executed, the defendant shall be deemed a fugitive from justice
          and the running of the period of probation shall cease as of the
          time the warrant was issued.”5 Likewise, the Phelps court cites to
          Article 899 when it states the cannot-be-executed requirement.6
          That language made the cessation of the probation period
          dependent on the diligence of the State’s attempt to execute the
          warrant. Article 899 was amended in 1985, however, and the
          article now provides: “When a warrant for a defendant’s arrest or
          a summons for defendant’s appearance is issued [for a parole
          violation], the running of the period of probation shall cease as of
          the time the warrant . . . is issued.” Thus, the pre-1985 cases are
          irrelevant; the current version of the statute governs the effect of
          the issuance of the arrest warrant and so the running of the
          probationary period is automatically stayed. Therefore, Brown’s
          probation was put on hold when the arrest warrant was issued.


5
    342 So. 2d at 180 (quoting the then-existing version of Article 899) (emphasis added).
6
    377 So. 2d at 342.

                                          3
                                       No. 07-30177

              The probationary period did not terminate until March 1996,
              meaning Brown could not own a gun under Louisiana statutory
              law until March 2006—i.e., he could not own a gun under federal
              law in July 2005 when he was arrested.
                     In supplemental briefing to this court, Brown argues that
              Harris and Phelps are good law because two other pre-1985 cases,
              State v. Jones and State v. Martens, cite the then-existing version
              of Article 899 and also state that defendants are entitled to
              certain “due process standards.”7 There is no question that before
              and after 1985, defendants had and have due process rights. But
              whether Brown’s due process rights were violated is a separate
              question (and a separate test) from whether he had a statutory
              right not to have his probation automatically extended because of
              the issuance of the arrest warrant.8 And it is clear with respect to
              the statutory question, the pre-1985 cases are no longer good law.
       3.     Brown also argues that his due process rights were violated when
              the State waited four years to execute his arrest warrant. As a
              threshold issue, however, the parties disagree on whether this
              issue was raised in the district court. The Government argues
              that Brown did not raise this issue below. Brown points to one
              sentence in his opposition to the Government’s motion for
              reconsideration on defendant’s motion to dismiss; in that



       7
         State v. Jones, 285 So. 2d 231, 234 (La. 1973) (“[I]n a hearing to revoke probation or
parole, the defendant is entitled to compliance with certain due process standards, including
a hearing and determination within a reasonably prompt time after the revocation charge is
made.”); accord State v. Martens, 338 So. 2d 95, 96 (La. 1976).
       8
        See Harris, 342 So. 2d at 180 n.3 (analyzing the defendant’s statutory argument
regarding the cannot-be-executed test and noting in a footnote that the defendant had also
made a second argument contending that his due process rights were violated).

                                              4
                             No. 07-30177

        opposition, Brown stated: “The indefinite tolling urged by the
        government is contrary to State law and amounts to violations of
        the due process clause of the 5th and 14th Amendment to the
        Constitution of the United States.” This effort is not sufficient to
        preserve his constitutional argument on appeal because Brown
        cited no cases in support of his assertion, made no attempt to
        apply the facts of his case to the law, and did not otherwise
        explain how his due process rights were violated. Moreover,
        Brown did not raise this issue in his opening brief to this court.
        Accordingly, we need not address the issue in this appeal. United
        States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (holding
        that an issue was waived by not being raised in the opening
        brief).
AFFIRMED.




                                   5
