    Case: 16-40041   Document: 00513886208     Page: 1   Date Filed: 02/22/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals

                               No. 16-40041
                                                                         Fifth Circuit

                                                                       FILED
                                                             February 22, 2017
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

KEVIN LYNDEL MASSEY,

                                          Defendant–Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Kevin Massey challenges his conviction of possession of a firearm by a
convicted felon. We affirm.

                                     I.
     Massey participated in an armed citizen group that patrolled the border
between the United States and Mexico to deter the entry of illegal aliens. At
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                                   No. 16-40041
the time of his arrest, the group was camped near the Sabal Palms Sanctuary
on the property of Rusty Monsees. Massey met with Guillermo Aguilar, the
program coordinator of the sanctuary, to discuss conducting patrols on its prop-
erty. Aguilar could not authorize the group to patrol in the sanctuary but told
Massey he would not turn them away. Aguilar believed, based on his conver-
sation with Massey, that the patrols were coordinated with the Border Patrol.

      Later, while patrolling the sanctuary, Massey encountered the Border
Patrol when it responded to a report of illegal aliens in the area. Agent Danny
Cantu first encountered a different person on patrol and advised him to leave.
During that conversation, fellow Border Patrol Agent Marcos Gonzales fired
several shots at another armed patrolman nearby. Cantu responded to the
sound of the shots and at that time ran into Massey, who was armed with a
Centurion 39 Sporter long rifle.

      The Border Patrol seized the firearms carried by Massey and the other
patrolmen; Massey was also carrying a Springfield XDS .45 caliber pistol. The
encounter was investigated by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“BATFE”). Massey was arrested in the parking lot of the hotel in
which he was staying; he informed the agents that he was armed. The arrest-
ing agent removed an HS Produkt model XDS .45 caliber handgun from Mas-
sey’s front pocket and seized another .45 caliber handgun from his hotel room.

                                       II.
      Massey was charged with four counts of possession of a firearm by a con-
victed felon under 18 U.S.C. § 922(g). He moved to dismiss on the grounds that
he was complying with Texas’s felon-in-possession statute and that Section
922(g) is unconstitutional as applied to him. He also maintained that, to sat-
isfy the jurisdictional element of Section 922(g), the government was required
to prove more than just that the firearms had traveled in interstate commerce.
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That motion was denied.

      At Massey’s bench trial, evidence was presented that all of the firearms
he possessed were manufactured in Vermont or Croatia. The government pre-
sented evidence that Massey had a 1988 Texas conviction of burglary of a hab-
itation for which he was sentenced to five years. Massey moved for a directed
verdict based on his interstate-commerce theory. The district court denied the
motion and found Massey guilty on all counts. Two of the four counts were
dismissed on the government’s motion, and judgment was entered against
Massey on the remaining two. He was sentenced, within the guideline range,
to 41 months’ imprisonment and three years of supervised release.

                                      III.
      Massey contends, on three grounds, that there was insufficient evidence
to convict him of violating Section 922(g). He claims that the indictment was
constructively amended because the government did not prove that his posses-
sion of the firearms affected interstate commerce. He asserts that under Texas
law, he was permitted to have the firearms because he possessed them on
“premises at which the person lives.” TEX. PENAL CODE § 46.04(a)(2). Finally,
he believes it was error for the district court to make no determination on
whether his rights had been restored. All three of these theories fail.

                                       A.
      Massey’s indictment was not constructively amended, because the lan-
guage of his indictment mirrored that of the statute of conviction. “[A]n indict-
ment which follows the language of the statute under which it is brought is
sufficient to give a defendant notice of the crime of which he is charged.”
United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (internal quotation



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marks omitted). The jurisdictional element of Section 922(g)(1) includes cir-
cumstances in which the possession of the firearm was intrastate, but the fire-
arm had previously traveled in interstate commerce, including from the place
it was manufactured to the place of the relevant possession. United States v.
Rawls, 85 F.3d 240, 243 (5th Cir. 1996). In contrast, “[a] constructive amend-
ment occurs when the jury is permitted to convict the defendant upon a factual
basis that effectively modifies an essential element of the offense charged.”
United States v. Rubio, 321 F.3d 517, 521 (5th Cir. 2003).

       The wording of Massey’s indictment and the statute are nearly identical.
The indictment charged that Massey “did knowingly possess in and affecting
interstate commerce a firearm.” The statute’s interstate commerce element
requires the defendant to “possess in or affecting commerce, any firearm or
ammunition.” 18 U.S.C. § 922(g). Pursuant to that indictment, the govern-
ment put on evidence that Massey’s firearms had traveled to Texas from Ver-
mont and Croatia, where they were manufactured.                The indictment was not
constructively amended.

                                            B.
       The government was not required to prove the legality, under Texas law,
of Massey’s possession of the firearms, because that is irrelevant to his convic-
tion under Section 922(g). To convict under Section 922(g)(1), the government
must prove three elements: “(1) that the defendant previously had been con-
victed of a felony; (2) that he possessed a firearm; and (3) that [it] traveled in
or affected interstate commerce.” United States v. Guidry, 406 F.3d 315, 318
(5th Cir. 2005); 18 U.S.C. § 922(g)(1). 1 The statute contains no requirement




       1“It shall be unlawful for any person—(1) who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in
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that the possession be illegal under state law. Texas law is relevant only to
evaluating the applicability of Massey’s prior conviction. The prior conviction
charged in the indictment was his 1988 Texas conviction of burglary of a habi-
tation, and the government presented evidence of that conviction.

                                           C.
      The district court was not required to address whether Massey’s rights
had been restored in Texas such that he would be permitted to possess a fire-
arm. Massey does not identify the statutory basis of that claim, but we assume
he is referring to the exception to Section 922(g) for “[a]ny conviction which has
been expunged, or set aside or for which a person has been pardoned or has
had civil rights restored . . . unless such pardon, expungement, or restoration
of civil rights expressly provides that the person may not ship, transport, pos-
sess, or receive firearms.” 18 U.S.C. § 921(a)(20).

      Massey has the burden to show that his rights had been restored such
that his burglary conviction was not applicable under Section 922(g). United
States v. Huff, 370 F.3d 454, 458–59 (5th Cir. 2004). He has pointed to no
evidence that his rights had been restored after his 1988 burglary conviction.
Without that evidence, the district court was not required to make any finding
regarding the restoration of Massey’s rights.

                                          IV.
      Massey’s conviction does not violate the Second Amendment, the Com-
merce Clause, or the Ex Post Facto Clause of the U.S. Constitution. His Second
Amendment and Commerce Clause theories are foreclosed by the rule of




interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammu-
nition; or to receive any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
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                                      No. 16-40041
orderliness, which forbids us to overrule the holdings of this court. 2                His
Ex Post Facto Clause claim with respect to amendments to Texas’s felon-in-
possession statute is irrelevant to his conviction under federal law.

                                            A.
       The Second Amendment framework adopted in National Rifle Ass’n of
America, Inc. v. BATFE, 700 F.3d 185, 194 (5th Cir. 2012), precludes this panel
from reexamining, as Massey claims we must, the constitutionality of Sec-
tion 922(g). In District of Columbia v. Heller, 554 U.S. 570, 626 (2008), the
Court specifically preserved the constitutionality of felon-in-possession stattes:
“[N]othing in our opinion should be taken to cast doubt on the longstanding
prohibitions on the possession of firearms by felons and the mentally ill . . . .”
We reaffirmed the constitutionality of Section 922(g) in both United States v.
Anderson, 559 F.3d 348, 352 & n.6 (5th Cir. 2009), and National Rifle Ass’n,
700 F.3d at 194 n.7. The rule of orderliness does not permit us to revisit those
holdings. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008).

                                            B.
       Massey’s notion that his conviction under Section 922(g)(1) violates the
Commerce Clause in light of United States v. Lopez, 514 U.S. 549 (1995), is also
foreclosed. We have considered that reasoning and rejected it. See Rawls,
85 F.3d at 242. “This court has repeatedly emphasized that the constitution-
ality of § 922(g)(1) is not open to question.” United States v. de Leon, 170 F.3d
494, 499 (5th Cir. 1999). We are bound to hold that Section 922(g)(1) is con-
stitutional under Lopez. See Jacobs, 548 F.3d at 378.



       2 See, e.g., Vaughan v. Anderson Reg’l Med. Ctr., No. 16-60104, 2017 WL 629265, at *3
(5th Cir. Feb. 15, 2017).
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                                      C.
      Massey’s conviction does not violate the Ex Post Facto Clause as a result
of amendments to Texas’s felon-in-possession statute, Texas Penal Code
§ 46.04, because that statute is irrelevant to his conviction. As discussed in
Part III.B, supra, state law is relevant only to the prior-conviction element of
Section 922(g). That was satisfied by Massey’s burglary conviction.

      AFFIRMED.




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