                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 3, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20100
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MICHAEL EDWARD DUNN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:00-CR-739-ALL
                      --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Michael Edward Dunn appeals his jury conviction and sentence

for possession of a firearm by a convicted felon and making false

statements to licensed firearm dealers in violation of 18 U.S.C. §§

922(a)(6), 922(g)(1) and 924(a)(2).    For the reasons set forth

below, we affirm Dunn’s conviction, vacate his sentence, and remand

for resentencing.

     Dunn contends that the district court erred when it denied his

motion to suppress the weapons seized during a search of his


     *
       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this opinion should not be published and is not precedent except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. 04-20100
                                   -2-

residence conducted on October 25, 1999, because the seizure

exceeded the scope of the warrant.         Dunn did not raise this issue

in his pre-trial motion to suppress, and explicitly limited his

motion to an attack on the sufficiency of the affidavits at his

suppression hearing.    This issue is waived.         See United States v.

Carreon-Palacio, 267 F.3d 381, 389 (5th Cir. 2001) (“We recognize

that FED. R. CRIM. P. 12(b)(3) requires that parties move to suppress

before trial or risk waiver of such claim.”); United States v.

Chavez-Valencia, 116 F.3d 127, 129 (5th Cir. 1997) (failure to

raise a suppression issue at trial forecloses a defendant from

raising the issue for the first time on appeal).

     Dunn   also   contends   that   the   evidence    at    trial   was   not

sufficient to establish that he had a felony conviction as defined

by 18 U.S.C. § 921(a)(20) because the Government failed to prove

beyond a reasonable doubt that his civil rights, including his

right to possess firearms, had not been restored.           As an element of

its 18 U.S.C. § 922(g)(1) charge, the Government must prove that

Dunn was a convicted felon.     See United States v. Fields, 72 F.3d

1200, 1211 (5th Cir. 1996).      We have found that “[t]he question

whether a felony conviction may serve as a predicate offense for a

prosecution for being a felon in possession of a firearm pursuant

to [18 U.S.C.] § 922(g)(1) is a purely legal one.”            United States

v. Daugherty, 264 F.3d 513, 514 (5th Cir. 2001).            In addition, the

defendant bears the burden of proving that his conviction has been

expunged or set aside, or that he has been pardoned or had his
                                 No. 04-20100
                                      -3-

civil rights restored.      See United States v. Huff, 370 F.3d 454,

458-59 (5th Cir. 2004).           Dunn stipulated to his status as a

convicted felon, and this stipulation was introduced as evidence at

trial.     Accordingly, the Government produced sufficient evidence

for a reasonable jury to find that Dunn had been convicted of a

felony.    See United States v. Shelton, 325 F.3d 553, 564 (5th Cir.

2003) (stipulated evidence sufficient to prove interstate commerce

element of unlawful possession of weapon charge); United States v.

Mankins,    135   F.3d   946,    948-49   (5th   Cir.   1998)   (stipulation

sufficient to prove possession of drugs).

     Dunn also contends that the district court plainly erred in

failing to instruct the jury as to the correct definition of a

“conviction,” thereby depriving him of his Sixth Amendment right to

a trial by jury.     Because Dunn did not request a jury instruction

on the definition of a conviction, and did not object to the

district court’s failure to give such an instruction, a plain error

analysis applies.    See United States v. Daniels, 281 F.3d 168, 184

(5th Cir. 2002).     “We find plain error only if: (1) there was an

error; (2) the error was clear and obvious; and (3) the error

affected the defendant’s substantial rights.”             United States v.

Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).           As noted above,

whether Dunn’s prior convictions constituted “convictions” pursuant

to 18 U.S.C. § 921(a)(20) is a purely legal question to be decided

by the district court.          In addition, Dunn carried the burden of

proving that his civil rights had been restored.           As there was no
                             No. 04-20100
                                  -4-

evidence presented at trial that Dunn’s civil rights, including his

right to possess firearms, had been restored, Dunn cannot show that

the district court committed plain error in constructing the jury

charge.

     Dunn has not demonstrated any reversible error in connection

with his conviction, and his conviction is AFFIRMED.

     Regarding    the   sentence   imposed,   Dunn    contends   that   the

district court committed reversible plain error when it sentenced

him pursuant to the mandatory United States Sentencing Guidelines

system held unconstitutional in United States v. Booker, 125 S. Ct.

738 (2005).      Because Dunn did not object on this basis in the

district court, this court’s review is for plain error. See United

States v. Valenzuela-Quevedo,         F.3d        , No. 03-41754, 2005 WL

941353, at *3 (5th Cir. Apr. 25, 2005).

     The district court plainly erred when it sentenced Dunn

pursuant to the mandatory Guidelines system held unconstitutional

in Booker.    See Valenzuela-Quevedo, 2005 WL 941353, at *4.            The

error affected his substantial rights because it appears from the

district court’s comments at sentencing that it would have imposed

a lesser sentence under an advisory guidelines scheme.           See, e.g.,

United States v. Pennell,          F.3d       ,    No. 03-50926, 2005 WL

1030123 at *5 (5th Cir. May 4, 2005).         Because the error likely

increased his sentence, Dunn has shown that the error seriously

affected the fairness, integrity, or public reputation of the
                              No. 04-20100
                                   -5-

judicial proceedings.    See id. at *5-6.           Accordingly, Dunn’s

sentence is VACATED, and the case is REMANDED for resentencing.

     CONVICTION   AFFIRMED;    SENTENCE   VACATED    AND   REMANDED   FOR

RESENTENCING.
