                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                     January 28, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                  No. 03-10104



                         UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                     versus

                            TIMOTHY JOE EMERSON,

                                                        Defendant-Appellant.




             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 6:98-CR-103-C


Before JONES, MAGILL,* and SMITH, Circuit Judges.

PER CURIAM:**

           Timothy Joe Emerson has appealed his convictions for

possession    of    a   firearm   while    under   a   restraining   order    in

violation of 18 U.S.C. § 922(g)(8). Previously this court reversed

the   district      court’s   order       dismissing    the   indictment      on




      *
      Circuit Judge of the Eighth Circuit, sitting by
designation.
      **
      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this opinion should not be published and is not precedent except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.
constitutional grounds.        See United States v. Emerson, 270 F.3d

203, 264–65 (5th Cir. 2001).

            Emerson first contends that his convictions should be

reversed because the facts of the case establish the defense of

entrapment by estoppel and that his attorney rendered ineffective

assistance   in     failing   to   request   a   jury    instruction       on   that

defense.   Emerson raised these questions for the first time in his

motions for judgment of acquittal and for a new trial.

            Because Emerson did not request a jury instruction on the

defense of entrapment by estoppel, we review for plain error the

district court’s failure to give the instruction.                       See United

States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003).                 The district

court’s denial of the motion for judgment of acquittal is reviewed

de novo.   See United States v. Izydore, 167 F.3d 213, 219 (5th Cir.

1999).     The denial of a motion for a new trial, a disfavored

motion, is reviewed for an abuse of discretion.                See United States

v. Sullivan, 112 F.3d 180, 182 (5th Cir. 1997).               Although questions

of ineffective assistance of counsel are generally not resolved on

direct appeal, we reach the issue in this case because the issue

was raised in Emerson’s motion for a new trial and because the

record has    been    developed     adequately.         See    United    States   v.

Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999).

            Under    governing     Fifth   Circuit      law,    the     defense   of

entrapment by estoppel was not available to Emerson.                    Emerson was

not “actively misled” by a duly empowered federal official about

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the legality of his possession of firearms while under the state

restraining and protective orders.         See United States v. Ortegon-

Uvalde, 179 F.3d 956, 959 (5th Cir. 1999); United States v. Spires,

79 F.3d 464, 466–67 (5th Cir. 1996).            This court has already held

that Emerson was placed on constructive notice of the existence of

federal firearms laws pertaining to domestic relations cases.               See

United States v. Emerson, 270 F.3d at 216.                 To the extent that

Emerson actually perceived a conflict between his duties under the

state court order and federal law, Emerson could have sought clari-

fication from the state court.         It would not have been objectively

reasonable for Emerson to rely on the state court’s order requiring

him   not   to   dispose   of   property   as    a    pretext   for   possessing

firearms.     See United States v. Trevino-Martinez, 86 F.3d 65, 69

(5th Cir. 1996).      No error has been shown, plain or otherwise.

Because Emerson has not shown that he has a valid entrapment-by-

estoppel defense, he cannot show that his attorney’s failure to

request an instruction on the defense or to object to the lack of

an instruction was professionally unreasonable or that he was

prejudiced.      See Strickland v. Washington, 466 U.S. 668, 687

(1984).

            Next,    Emerson     has    raised        various   constitutional

challenges to the legality of 18 U.S.C. § 922(g)(8). The constitu-

tionality of the statute was considered in the prior appeal in this

case.   See Emerson, 270 F.3d at 212–72.             Under the law-of-the-case

doctrine, “an issue of fact or law decided on appeal may not be

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reexamined . . . by the appellate court on a subsequent appeal.”

United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).

          The argument that Congress exceeded its authority under

the Commerce Clause by enacting 18 U.S.C. § 922(g)(8) has been

rejected by this court.    See Emerson, 270 F.3d at 217; see also

United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998).

Citing a footnote in our prior opinion, see 270 F.3d at 217 n.8,

Emerson argues that his possession of firearms was purely passive

as the firearms were purchased prior to 1993 and that, since that

date, the weapons had never left Tom Green County, Texas.   Emerson

argues also that counts one and two charged him with “purely

passive” possession of firearms on December 10, 1998.         These

arguments are without merit.    “Possession of a firearm is active,

not passive, conduct.”   United States v. Shelton, 325 F.3d 553, 564

(5th Cir. 2003). Moreover, Emerson never attempted to dispute that

the weapons charged in the indictment never traveled in interstate

commerce after 1994.   See Emerson I, 270 F.3d at 217, n.8; see also

United States v. Lee, 310 F.3d 787, 788 (5th Cir. 2002); United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

          Emerson’s Tenth Amendment argument is barred because it

was waived in the prior appeal, see Emerson I, 270 F.3d at 218.

“The waiver doctrine bars consideration of an issue that a party

could have raised in an earlier appeal in the case.”   United States

v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999), rev’d on other

grounds, 530 U.S. 120 (2000).     His contention that this statute

                                  4
violates the Second Amendment was rejected in the court’s prior

opinion.     See Emerson, 270 F.3d 260–63.

             Emerson contends that 18 U.S.C. § 922(g)(8) violates the

Fifth Amendment guarantee of due process, facially and as applied

to him.      Emerson complains: (1) that the statute does not require

express notice of the deprivation of the right to keep and bear

arms; (2) that application of the statute in this case was funda-

mentally unfair because it was impossible for him to maintain the

assets of the marital estate and to divest himself of possession of

his guns; and (3) that the statute criminalizes passive activity in

violation of the rule in Lambert v. People of the State of

California, 355 U.S. 225, 228–30 (1957).             Emerson distinguishes

between his firearms possession on November 16, 1998, as charged in

count three of the superseding indictment, and his possession on

December 10, 1998, as charged in counts one and two, suggesting

that   the    former   possession   was   “active”   and   the   latter   was

“passive.”

             As was previously discussed, a similar argument was

rejected in Shelton, 325 F.3d at 564, in which we clarified that

“[p]ossession of a firearm is active, not passive, conduct.”

Moreover, Emerson’s first and third contentions have been rejected

and are without merit.      In Emerson I, 270 F.3d at 216–17, the court

noted in a footnote that this case does not present a situation in

which possession of the firearm was incident to a good faith effort

by the defendant to rid himself of continued possession of a

                                     5
previously possessed firearm.      Id. at 216 n.6.      The panel also

rejected the Lambert argument.     Id.   Application of the statute to

Emerson was not fundamentally unfair.

            Regarding his sentence, Emerson objects to the assessment

of a criminal history point pursuant to U.S.S.G. § 4A1.1(c).

Because, as he admits, assessment of the criminal history point did

not affect his sentence, any error by the district court was

harmless.    See Williams v. United States, 503 U.S. 193, 202–03

(1992); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).

            Emerson also objected in the district court that U.S.S.G.

§ 2K2.1(a)(5) violates the Second Amendment as applied to him.       The

probation officer concluded that Emerson’s base-offense level was

18, under U.S.S.G. § 2K2.1(a)(5), because the offense involved a

firearm described in 18 U.S.C. § 921(a)(30) (defining the term

“semiautomatic assault weapon”), i.e., a Polytech Model AK47S.

Emerson argues that he legally possessed the Polytech AK47S prior

to entry of the state court order.          He argues also that the

Guideline   makes   no   distinction   between   semiautomatic   assault

weapons grandfathered under 18 U.S.C. § 922(v) and those which are

not.   In so doing, he contends, “§ 2K2.1(a)(5) artificially in-

flates the punishment for those who lawfully exercise their Second

Amendment right to own a grandfathered semiautomatic assault weapon

and later become subject to a prohibition . . . .”       This argument

is without merit.



                                   6
            Under 18 U.S.C. § 922(v)(1) it is generally unlawful to

possess a semiautomatic assault weapon.               The assault-weapon ban

does not apply “to the possession or transfer of any semiautomatic

assault weapon otherwise lawfully possessed under Federal law on

the date of the enactment” of subsection 922(v).               See 18 U.S.C.

§ 922(v)(2).    The exemption in 18 U.S.C. § 922(v)(2) applies only

to prosecution for violations of 18 U.S.C. § 922(v)(1).               Congress

enacted 18 U.S.C. § 922(v) to address the increased threat and harm

resulting from criminals and mentally deranged individuals using

semiautomatic      assault   weapons       to   commit    unlawful    violence.

See   H. R. REP. NO. 103-489,      12–20        (1994),   reprinted    in   1994

U.S.C.C.A.N. 1801, 1820–28.        The sentencing guideline does not

exempt   pre-ban    weapons.     See       U.S.S.G.   §   2K1.2(a)(5).      The

Sentencing Commission’s decision to punish offenses involving such

weapons more severely is “reasonable and not inconsistent with the

right of Americans generally to keep and bear their private arms

. . . .”    Emerson, 270 F.3d at 261.

            For the foregoing reasons, the judgment and sentence are

AFFIRMED.




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