from the United States District Court for the Southern
District of Texas
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
E. SMITH, Circuit Judge
Massey challenges his conviction of possession of a firearm
by a convicted felon. We affirm.
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
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.
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.
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.
motion was denied.
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.
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 ...