Thursday, May 17, 2007

Prior Felony Conviction for Burglary of Vehicle Qualified as § 922(g) Predicate, Even Though Offense Is Now Only a Misdemeanor

United States v. Schmidt, No. 06-10525 (5th Cir. May 16, 2007) (Garwood, Smith, DeMoss)

In 1985, Schmidt was convicted of burglary of a vehicle in Texas state court. The offense was a third degree felony at the time, but in 1993 the Texas legislature reduced it to a Class A misdemeanor. At some point after that Schmidt was charged with and convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), with the vehicle burglary conviction serving as the predicate felony. Schmidt raised three challenges to his FIP conviction, all of which the court rejected.

First, "Schmidt argue[d] 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." The court initially acknowledged that "[t]his case turns on what point in time is used to measure the incarceration term of the predicate offense." (Schmidt obviously argued that it's at the time of the firearm possession giving rise to the alleged § 922 offense, while the Government argued that it's at the time of the predicate felony.) But then the court says it doesn't need to resolve that question because of a non-retroactivity clause in the legislation that reduced burglary of a vehicle from a felony to a midemeanor. That clause provides that the misdemeanor classification only applies if the offense is committed on or after September 1, 1994, which was the effective date of the amendment. So, according to the court, it doesn't matter whether you use the date of the prior offense or the date of the alleged § 922(g)(1) offense, because Schmidt's prior offense would have been punishable as a felony on either date since he committed the offense in 1985.

Schimdt's second argument was that "the plain language of [§922(g)(1)] requires the government to prove that he knew not only that he was possessing a firearm, but also that he was a felon." The Fifth Circuit has rejected this argument, both pre- and post-Staples, and rejects it again here.

Finally, "Schmidt urge[d, on the basis of Lopez, Jones, and Morrison,] that § 922(g)(1) is unconstitutional on its face, and as applied to him, because it does not require a 'substantial' effect on interstate commerce." This one was also foreclosed by Fifth Circuit precedent.



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