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

                                                                            FILED
                                                                          October 4, 2007

                                       No. 06-20922                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

JUAN URIEL GARZA, agent of Juan Uriel Garza-Garza,
also known as Juan Diaz Garza,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:06-CR-259-1


Before JONES, Chief Judge, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The issue before the court is whether Garza’s prior Texas conviction for
being a felon in possession of a weapon qualifies as an “aggravated felony”
because it is “described in” 18 U.S.C. § 922(g). Because we find that it does, we
find the district court’s application of the eight-level enhancement proper, and
AFFIRM.
               I. FACTUAL AND PROCEDURAL BACKGROUND


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20922

       On July 26, 2006, a federal grand jury indicted Garza for being found
unlawfully present in the United States after being previously convicted of an
aggravated felony and subsequently removed, in violation of 8 U.S.C. §§ 1326 (a)
and (b)(2). On September 7, 2006, Garza pled guilty to the indictment without
a plea agreement.
       The probation officer prepared a presentence investigation report (“PSR”)
utilizing the 2005 edition of the sentencing guidelines. The base offense level
was eight, with an eight-level increase under the United States Sentencing
Guidelines (“USSG”) § 2L1.2(b)(1)(C) for Garza's prior Texas conviction for
possession of a firearm by a felon,1 and a three-level reduction for accepting
responsibility, for a total offense level of thirteen. Garza's criminal history score
was thirteen, placing him in criminal history category VI. His applicable
guidelines range was thirty-three to forty-one months.
       Garza objected to the PSR's application of the eight-level enhancement,
contending that neither of his prior offenses qualified as an aggravated felony
under § 2L1.2(b)(1)(C). The district court overruled Garza's challenge. With
regard to the felon-in-possession conviction, the district court stated that United
States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), supported application
of the enhancement. Garza was sentenced to forty-one months in prison, to be
followed by a three-year term of supervised release. Garza timely appealed.
                                  II. APPLICABLE LAW
       This Court reviews de novo the district court’s interpretation of the USSG.
United States v. Sarmiento-Funes, 347 F.3d 336, 338 (5th Cir. 2004).



       1
         The PSR also indicated that Garza’s prior conviction for possession of marijuana would
qualify for the 8-level increase under 2L1.2(b)(1)(C). The district court found that this
conviction would serve as an alternative basis for the increase, but this finding is incorrect in
light of Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006). Recognizing this, on appeal the
Government only asserts Garza’s felon-in-possession conviction as supporting the 8-level
increase.

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      Under § 2L1.2 (b)(1)(C) of the USSG, a district court must increase a
defendant's total offense level by eight levels if the defendant had been
previously deported after conviction for an “aggravated felony.” The guidelines
provide that "aggravated felony" has the meaning given that term in § 101(a)(43)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43), which contains
a lengthy list of categories of “aggravated felonies.” The parties agree that the
only relevant category in this case is set out by § 1101(a)(43)(E)(ii), which states
that “aggravated felonies” include “an offense described in § 922 (g)(1) . . . of Title
18, United States Code (relating to firearm offenses).” Section 922(g)(1), in
relevant part, prohibits anyone “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . . . to possess in or
affecting commerce, any firearm or ammunition.”
      The Texas statute under which Garza was convicted, Texas Penal Code
(“TPC”) § 46.04, bars possession of a firearm by a felon for the first five years
following the felon's release from prison or supervision, as well as possession of
a firearm outside the home after that five year period. Tex. Penal Code § 46.04.
                                 III. DISCUSSION
      The issue on appeal is whether Garza’s conviction for felon-in-possession
under TPC § 46.04 is an “offense described in § 922(g)(1).”
      Garza argues that the district court erred in imposing the eight-level
enhancement because his Texas firearm conviction did not constitute an
aggravated felony. He contends that § 1101(a)(43)(E)(ii)’s use of the terms
“described in” indicates that any state statute must contain the same elements
as the federal statute. Here, the Texas statute is both broader and narrower
than the federal statute, and thus does not contain the same elements. The
statute is narrower than the federal law because, after five years, a felon
possessing a firearm in his home would not have committed an offense under
state law, but could still be charged under § 922(g)(1). He contends the Texas


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statute is broader than the federal statute because Texas does not require that
the firearm possession be “in or affecting commerce.” The Government argues
that the enhancement was proper, relying on the Ninth Circuit’s decision in
United States v. Castillo-Rivera, 244 F.3d 1020, 1021-24 (9th Cir. 2001), which
found that a state felon-in-possession statute is “described in” § 922(g) even
though the state statute lacked an interstate commerce element.              The
Government further argues that Garza reads the “described in” language too
narrowly and that the distinctions between the federal and state statutes are
insufficient to establish that the Texas offense is not an aggravated felony.
      In determining whether an offense qualifies as an aggravated felony, we
begin by making a categorical comparison between the state statute of conviction
and the relevant definition of an aggravated felony in § 1101(a)(43). See Lopez
v. Gonzales, 127 S. Ct. 625, 633 (2006) (a state offense constitutes a “felony
punishable under the Controlled Substances Act” only if it proscribes conduct
punishable as a felony under that federal law); see also United States v. Diaz-
Diaz, 327 F.3d 410, 414-415 (5th Cir. 2003). If the full range of conduct covered
by the statute of conviction falls within the meaning of an aggravated felony
under § 1101(a)(43), then the state offense will be considered an aggravated
felony. Here, both TPC § 46.04 and § 922(g)(1) generally prohibit a person from
possessing a firearm after a felony conviction. However, conviction under the
federal statute requires proof that the firearm was possessed “in or affecting
commerce,” while the Texas statute requires no such showing. Garza therefore
argues, that because the full range of conduct encompassed by the state statute
in question includes possession of a firearm without an interstate commerce
nexus, his conviction does not constitute an aggravate felony as an offense
described in the federal felon in possession provision. However, the Government
argues that the interstate commerce nexus in the federal statute is merely a
jurisdictional basis and the lack of such a requirement in the Texas statute does

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not remove the Texas statute from inclusion as an offense “described in §
922(g)(1).” With the exclusion of the link to interstate commerce, it is clear that
the conduct proscribed by TPC § 46.04 would result in a federal conviction under
§ 922(g)(1). Thus, the relevant inquiry is whether the connection to interstate
commerce is an essential element of the offense, or whether it is merely
jurisdictional.
       It is undisputed that in order to obtain a conviction under § 922(g), the
government must prove that the “defendant’s charged possession of the [firearm]
was ‘in or affecting commerce.’” United States v. Chambers, 408 F.3d 237, 241
(5th Cir. 2005). However, in Castillo-Rivera, the Ninth Circuit addressed §
922(g) and found that the interstate commerce nexus required by the federal
statute is a “mere jurisdictional requirement,” not an essential element of the
offense. 244 F.3d at 1023. The court found that the wording of 8 U.S.C. §
1101(a)(43) “makes evident that Congress clearly intended state crimes to serve
as predicate offenses for the purpose of defining what constitutes an aggravated
felony.” Id. Further, interpreting the jurisdictional element of § 922(g) to be
necessary in order for a state firearm conviction to constitute an aggravated
felony under § 1101(a)(43)(E)(ii) would reduce the number of state firearm
offenses that would qualify to “no more than a negligible number.” Id. In
addition, the court noted, the sentencing guidelines themselves support this
conclusion, as the relevant guideline provides that “[f]irearms offense means any
offense covered by Chapter Two, Part K, Subpart 2, or any similar offense under
state or local law.” Therefore, the Ninth Circuit concluded that the defendant’s
prior California felon-in-possession conviction was an offense “described in” §
922(g)(1) and qualified as an aggravated felony under § 1103(a)(43)(E)(ii). See
also United States v. Mendoza-Reyes, 331 F.3d 1119, 1121 (9th Cir. 2003)
(Washington state conviction for felon-in-possession constitutes an aggravated
felony under § 1103(a)(43)(E)(ii)).

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      We agree with the Ninth Circuit, and reject Garza’s argument that §
922(g)’s connection with interstate commerce is an essential element of the
offense for this analysis.    Looking at § 922(g)(1), the core of the offense
proscribed is conviction of a felony and ownership and possession of a handgun.
This is the same conduct prohibited by the Texas statute. As we have previously
stated, in a federal criminal statute, the “interstate commerce [requirement]
serves as a mere jurisdictional hook,” United States v. Webster, 162 F.3d 308, 330
(5th Cir. 1998), not an essential element of the offense. Garza is correct in his
assertion that in order for a state conviction to constitute an aggravated felony
“described in” a specific federal statute, the state statute must proscribe conduct
punishable as a felony under that federal statute. See, e.g. Diaz-Diaz, 327 F.3d
at 415; McNeil v. Attorney General of the United States, No. 05-4512, 2007 U.S.
App. LEXIS 20582 (3d Cir. 2007) (conviction under state statute does not qualify
as an aggravated felony because an individual may violate state statute without
that conviction qualifying as a federal felony). This will ordinarily require a
showing that the elements of the state offense are contained within the elements
of the federal offense. However, a connection with interstate commerce is not an
essential element for the purpose of this analysis. Therefore, we conclude that
a state felon in possession offense is not required to include a commerce nexus
as one of its elements in order to qualify as an aggravated felony for sentencing
purposes.
      Garza also argues the Texas statute is narrower than the federal law, and
thus a conviction under the state statute would not be “described in” § 922(g)(1).
He points to the fact that under TPC § 46.04, after five years, a felon possessing
a firearm in his home would not have committed an offense under state law, but
could still be charged under § 922(g)(1). While this is an identifiable difference
between the two statutes, it is not relevant to our inquiry. The essential
question that the court must face when determining whether a state offense

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constitutes an aggravated felony “described in” a federal statute is whether the
state offense would be punishable under the federal statute. See Lopez v.
Gonzales, 127 S. Ct. 625, 633 (2006). That a state offense encompasses less
behavior than a federal offense does not change the fact that any behavior
punished by the state offense would be punishable under the federal offense.
      Here, with the exception of the jurisdictional link to interstate commerce,
conduct criminalized under the state statute would be punishable under the
federal statute as well. Therefore, we hold that Garza’s conviction under TPC
§ 46.04 is a felony “described in” § 922(g)(1), and thus constitutes an aggravated
felony within the meaning of § 1101(a)(43)(E)(ii). The eight-level enhancement
applied by the district court was proper.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Garza also
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
                              IV.    CONCLUSION
      Because we conclude that Garza’s prior conviction under TPC § 46.04 is
an offense described in § 922(g)(1), and thus constitutes an aggravated felony,
we AFFIRM the district court’s application of the 8-level enhancement.




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