United States v. Kevin Massey
2017 U.S. App. LEXIS 3227
5th Cir.2017Background
- Massey, a convicted felon, participated in an armed civilian patrol near the U.S.–Mexico border on property adjacent to Sabal Palms Sanctuary; he met with the sanctuary coordinator who would not turn the group away.
- During a Border Patrol response to reports of illegal entry, agents encountered armed patrollers; shots were fired by an agent at another patroller, and Agent Cantu encountered Massey armed with a Centurion 39 Sporter rifle.
- BATFE investigated; agents seized multiple firearms from Massey and his hotel, including an HS Produkt XDS .45 and another .45 seized from his room.
- Massey was indicted on four counts under 18 U.S.C. § 922(g)(1) (felon in possession); two counts were later dismissed and he was convicted on two counts after a bench trial, sentenced to 41 months and three years’ supervised release.
- Massey moved to dismiss arguing (1) constructive amendment/insufficient interstate-commerce proof, (2) Texas law permitted his possession (premises where he lives), and (3) the court failed to determine restoration of rights; he also raised constitutional challenges (Second Amendment, Commerce Clause, Ex Post Facto).
- The district court denied relief on these grounds; the Fifth Circuit affirmed in this opinion.
Issues
| Issue | Massey’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Constructive amendment / interstate-commerce element | Indictment insufficient because government must prove more than firearms previously moved in interstate commerce | Indictment tracked statute; proof that firearms traveled from manufacturers in Vermont and Croatia satisfied interstate-commerce element | Indictment not constructively amended; interstate-commerce element met by proof of manufacture and movement to Texas |
| Validity of possession under Texas law | Texas Penal Code §46.04(a)(2) purportedly allowed possession on premises where person lives, so federal charge inconsistent | State-law legality is irrelevant to federal §922(g); federal elements are prior felony, possession, and interstate commerce | Federal conviction need not consider state-law permissibility; §922(g) satisfied |
| Restoration of civil rights exception under 18 U.S.C. §921(a)(20) | Court should have determined whether Massey’s civil rights were restored, which would exempt him | Burden on defendant to prove restoration; Massey presented no evidence of restoration | No requirement for district court finding absent any evidence; Massey failed to meet burden |
| Constitutional challenges (Second Amendment, Commerce, Ex Post Facto) | §922(g) unconstitutional as applied; Commerce Clause/Ex Post Facto arguments tied to state-law changes | Precedent upholds §922(g) against Second Amendment and Commerce Clause attacks; state-law changes irrelevant to federal conviction | Claims foreclosed by Fifth Circuit precedent and Heller; Ex Post Facto claim irrelevant to federal statute |
Key Cases Cited
- United States v. Thomas, 348 F.3d 78 (5th Cir. 2003) (indictment following statutory language gives adequate notice)
- United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) (possession that is intrastate is covered when firearm previously traveled in interstate commerce)
- United States v. Rubio, 321 F.3d 517 (5th Cir. 2003) (constructive amendment occurs when conviction rests on a factual basis that alters essential element)
- United States v. Guidry, 406 F.3d 315 (5th Cir. 2005) (elements of §922(g)(1): prior felony, possession, interstate commerce)
- United States v. Huff, 370 F.3d 454 (5th Cir. 2004) (defendant bears burden to prove restoration of civil rights under §921(a)(20))
- National Rifle Ass’n of Am., Inc. v. BATFE, 700 F.3d 185 (5th Cir. 2012) (Fifth Circuit framework upholding §922(g) against Second Amendment challenges)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller preserves longstanding prohibitions on firearm possession by felons)
- United States v. de Leon, 170 F.3d 494 (5th Cir. 1999) (§922(g)(1) constitutionality under Commerce Clause upheld)
- United States v. Jacobs, 548 F.3d 375 (5th Cir. 2008) (rule of orderliness binds panels to prior circuit precedent)