United States v. Schmidt

United States Court of Appeals
Fifth Circuit
F I L E D
May 16, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-10525
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY NEIL SCHMIDT,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jerry Schmidt appeals his conviction. Be-
cause the district court properly found that
Schmidt’s prior conviction was a predicate of-
fense for purposes of 18 U.S.C. § 922(g)(1),
we affirm.
I.
Schmidt was charged with four counts of
being a felon in possession of a firearm in vio-
lation of § 922(g)(1), which prohibits the pos-
session of a firearm by “any person who has
been convicted in any court of, a crime pun-
ishable by imprisonment for a term exceeding
one year . . . .” 18 U.S.C. § 922(g)(1).
Schmidt’s predicate offense was a 1985 Texas

-- 1 of 3 --

2
felony conviction of burglary of a vehicle, and
it is not disputed that in 1985 the offense was
punishable by more than one year’s incarcera-
tion.
In 1994 Texas modified its penal code, and
burglary of a vehicle was reduced from a third
degree felony to a Class A misdemeanor. Un-
der Texas law, misdemeanors are punishable
by a maximum of one year’s incarceration.
TEX. PENAL CODE § 12.21. Schmidt argues
that because, at the time of the events giving
rise to his § 922 offense, burglary of a vehicle
was not punishable by a term of more than one
year, it cannot properly be a predicate offense.
II.
This case turns on what point in time is
used to measure the incarceration term of the
predicate offense. Schmidt argues that, be-
cause Congress used the term “punishable”
instead of “was punishable,” the correct point
to use is the time of the events giving rise to
his § 922 conviction, when burglary of a ve-
hicle was not punishable by over one year’s
incarceration. The government reasons that
the correct point is the time of the predicate
conviction, when burglary of a vehicle was
punishable by more than one year. A close
reading of the 1994 amendment, however,
shows that we do not need to resolve this
question to decide Schmidt’s appeal.
The 1994 amendment includes a retroactiv-
ity clause stating that the changes apply “only
to an offense committed on or after [Septem-
ber 1, 1994].” Acts 1993, 73rd Leg., R.S., ch.
900, § 1.18, 1993 Tex. Gen. Laws 3708. The
amendment further states that “[a]n offense
committed before [September 1, 1994] is cov-
ered by the law in effect when the offense was
committed, and the former law is continued in
effect for that purpose.” Id.1 Texas courts
that have sentenced defendants after Septem-
ber 1, 1994, for offenses committed before
that date have used the pre-amendment code.2
It is not disputed that Schmidt’s predicate
offense, burglary of a vehicle, was committed
in 1985. Because this was before the effective
date of the amendment, the offense is gov-
erned by the pre-amendment code. Thus, it is
irrelevant which point in time is chosen to ex-
amine Schmidt’s potential sentence for the
burglarySSunder the pre-1994 code, burglary
of a vehicle is punishable by more than one
year. Regardless of whether the incarceration
term is measured at the time of the conviction
or at the time of the events giving rise to the
§ 922(g)(1) conviction, Schmidt’s burglary-of-
a-vehicle conviction was punishable by more
than one year. Even if he were being sen-
tenced today for his 1985 burglary of a vehi-
cle, he would be sentenced under the pre-
amendment code and would face incarceration
term of more than one year. Accordingly, his
state conviction is a predicate offense for pur-
poses of § 922(g)(1).
1 See also Davila v. State, 930 S.W.2d 641,
654 (Tex. App. 1996) (“In amending the Penal
Code, the Legislature specifically provided that an
offense committed before the effective date of the
amendments is governed by the law in effect when
the offense was committed.”).
2 See, e.g., Delgado v. State, 908 S.W.2d 317,
318-19 (Tex. App.SSEl Paso 1995, pet. ref’d);
Poledore v. State, 8 S.W.3d 22, 25 (Tex. App.SS
Houston [14th Dist.] 1999, pet. ref’d) (holding that
it was proper to sentence defendant under the more
severe pre-amendment code for an offense commit-
ted in 1989, even though the sentencing proceeding
was conducted in 1996 (because the defendant had
been placed on deferred adjudication)).

-- 2 of 3 --

3
III.
Schmidt argues that the plain language of
the statute requires the government to prove
that he knew not only that he was possessing
a firearm, but also that he was a felon. We re-
jected this claim in United States v. Dancy,
861 F.2d 77, 81-82 (5th Cir. 1988), in which
we held that conviction under § 922(g)(1) re-
quires proof that the defendant knew that he
had received (or possessed or transported) a
firearm but does not require proof that he
knew that the firearm had an interstate nexus
or that he was a felon. Id.
Schmidt contends that the holding of Dancy
has been rendered invalid by Staples v. United
States, 511 U.S. 600 (1994), and Bryan v.
United States, 524 U.S. 184 (1998). We dis-
agree. In United States v. Privett, 68 F.3d
101, 104 n.1 (5th Cir. 1995), we rejected the
notion that Staples nullifies Dancy with re-
spect to the mens rea requirement of § 922-
(g)(1).
“[U]nless the text of the statute dictates a
different result, the term ‘knowingly’ merely
requires proof of knowledge of the facts that
constitute the offense.” Bryan, 524 U.S. at
193. At issue in Bryan was whether the term
“willful” in 18 U.S.C. § 924(a)(1)(D) requires
specific, or merely general, intent. The Bryan
Court was not confronted with whether to ex-
tend a mens rea requirement to a defendant’s
felony status.
In any event, Schmidt does not claim ig-
norance of his 1985 Texas conviction for burg-
lary of a vehicle, and any ignorance he may
have had with respect to whether, in light of
the 1994 Texas amendments, that conviction
renders him a person ‘who has been convicted
in any court of a crime punishable by imprison-
ment for term exceeding one year’ for pur-
poses of § 922(g)(1) as applied to his charged
2005 firearm possession, would be merely
ignorance of the law.
IV.
Schmidt urges that § 922(g)(1) is unconsti-
tutional on its face, and as applied to him, be-
cause it does not require a “substantial” effect
on interstate commerce. He bases this on
United States v. Lopez, 514 U.S. 549 (1995),
Jones v. United States, 529 U.S. 848 (2000),
and United States v. Morrison,529 U.S. 598
(2000). Our precedent forecloses this argu-
ment: “[T]he constitutionality of § 922(g)(1)
is not open to question.” United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Lopez, Jones, and Morrison do not alter this
conclusion. Id.
The judgment of conviction is AFFIRMED.

-- 3 of 3 --