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United States v. Massey

United States Court of Appeals, Fifth Circuit

February 22, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
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 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 property. 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 conversation 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 arresting 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 convicted 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 satisfy the jurisdictional element of Section 922(g), the government was required to prove more than just that the firearms had traveled in interstate commerce.

          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 presented evidence that Massey had a 1988 Texas conviction of burglary of a habitation 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 possession 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 ...


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