Opinion

United States v. Guadalupe Alcantar

  • 733 F.3d 143
  • 2013 U.S. App. LEXIS 20452
  • 2013 WL 5524731
Court
Court of Appeals for the Fifth Circuit
Filed
Oct 7, 2013
Status
Published
Author
Haynes
On the bench
Reavley, Elrod, Haynes
Cited by
369 cases
Authority
More cited than 99.4%

holding that “only an intervening change in the law (such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent,” and that “[s]uch an intervening change in the law must be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.”

How later courts described this case

  • holding that “only an intervening change in the law (such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent,” and that “[s]uch an intervening change in the law must be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.”
  • explaining that any allegedly intervening change in law based on a Supreme Court decision must be unequivocal—more than merely illuminating or a hint of how the Court may rule in the future
  • concluding precedent forecloses contention that 2 Case: 23-10663 Document: 00517044360 Page: 3 Date Filed: 01/25/2024 No. 23-10663 § 922(g)(1) violates Commerce Clause
  • holding that § 922(g)(1) does not violate the Commerce Clause

Written by the judges who cited it.

The opinion

Case: 12-10909 Document: 00512399416 Page: 1 Date Filed: 10/07/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 7, 2013

No. 12-10909 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GUADALUPE ALCANTAR,

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Defendant-Appellant Guadalupe Alcantar pleaded guilty to violating 18

U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to 63 months of

imprisonment, reserving his appeal rights. He now appeals the district court’s

denial of his motion to dismiss the indictment and the four-level sentencing

enhancement imposed under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”)

§ 2K2.1(b)(6)(B) (2011). We AFFIRM.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Abilene Police Department (“APD”) began investigating Alcantar for

cocaine possession with intent to deliver. During a traffic stop, APD officers

searched Alcantar and discovered that he was in possession of cocaine. A

Case: 12-10909 Document: 00512399416 Page: 2 Date Filed: 10/07/2013

No. 12-10909

subsequent search of his residence revealed various drug paraphernalia and

drug-manufacturing materials, including Ziploc bags with cut corners, digital

scales, a cutting agent, and a measuring cup with cocaine residue. APD officers

further discovered a dismantled 12-gauge shotgun. Both the drug paraphernalia

and the firearm were located in Alcantar’s bedroom. He was charged by the

state of Texas with possession of cocaine with intent to deliver. Alcantar had

previously been convicted of aggravated assault of a police officer, which is a

felony under Texas law.

Alcantar was indicted for “Convicted Felon in Possession of a Firearm” in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and “Possession of an

Unregistered Firearm” in violation of 26 U.S.C. §§ 5861(d) and 5871. He filed

a motion to dismiss the indictment, which the district court denied. In his

motion, Alcantar argued that § 922(g)(1) was unconstitutional, both on its face

and as applied, because it exceeded Congress’s Commerce Clause authority.

Acknowledging that his argument was foreclosed by existing Fifth Circuit

precedent, Alcantar sought to preserve his claim for appeal, urging that recent

Supreme Court decisions may affect our precedents on this issue.1

Alcantar pleaded guilty to the charge of “Convicted Felon in Possession of

a Firearm.” The pre-sentence report (“PSR”) recommended assessing a four-level

sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) based on

Alcantar’s use or possession of a firearm in connection with another felony

offense, namely, the state charge of possession of cocaine with the intent to

deliver. Alcantar filed a written objection to the proposed enhancement, arguing

that although the proximity of the firearm to the drug paraphernalia would

1

Alcantar’s motion relied on the Court’s decisions in United States v. Morrison, 529

U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000). Thereafter, he also relied

on the recently-decided case of National Federation of Independent Business v. Sebelius, 132

S. Ct. 2566 (2012).

2

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No. 12-10909

normally warrant the enhancement, the dissembled state of the firearm, his lack

of knowledge regarding reassembling it, and the absence of ammunition

rendered the firearm useless in facilitating another offense.2

In an addendum to the PSR, a probation officer reported that a special

agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

confirmed that the firearm was “designed to readily, and easily, be disassembled

and reassembled using the three pieces recovered.” According to the probation

officer, the ATF agent “estimated it could take as little as 10 to 30 seconds to

assemble the firearm’s three pieces depending on the individual’s knowledge of

the firearm,” and he explained that the “simplicity of the break down of the

firearm negated the need for instructions for assembly and also provided the

potential to facilitate the offense.”

The district court overruled Alcantar’s objection and found that the

“4-level increase [was] justified in that the firearm was possessed in connection

with another felony offense.” The court adopted the PSR and sentenced Alcantar

to 63 months of imprisonment. Alcantar timely appealed.

DISCUSSION

I. Constitutionality of § 922(g)(1)

Alcantar argues that his conviction should be vacated because § 922(g)(1)

exceeds Congress’s authority under the Commerce Clause. In United States v.

Wallace, 889 F.2d 580, 583 (5th Cir. 1989), we concluded that § 922(g)(1) is a

valid exercise of Congress’s authority under the Commerce Clause. Following

Wallace, we have consistently upheld the constitutionality of § 922(g)(1),

2

During the sentencing hearing, Alcantar also presented the testimony of a staff

investigator for the Federal Public Defender. The investigator testified that the firearm was

discovered in three different pieces and that no ammunition was found in the residence. The

investigator further reported—based on his conversations with Alcantar’s girlfriend—that

Alcantar did not know how to assemble the firearm and that the firearm had been left at the

residence by the former husband of Alcantar’s girlfriend when he moved away.

3

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No. 12-10909

including after the Supreme Court’s decisions concerning Congress’s Commerce

Clause authority in 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).

See United States v. Schmidt, 487 F.3d 253, 255 (5th Cir. 2007) (holding that the

Court’s decisions in Lopez, Jones, and Morrison “do not alter th[e] conclusion”

that § 922(g)(1) is constitutional); United States v. Daugherty, 264 F.3d 513, 518

(5th Cir. 2001) (“[T]he constitutionality of § 922(g) is not open to question.”);

United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999) (“This court has

repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to

question.”).

Alcantar argues on appeal that the Supreme Court’s decision in National

Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012),

overrules our long-standing precedent upholding § 922(g)(1). Under our rule of

orderliness, only an intervening change in the law (such as by a Supreme Court

case) permits a subsequent panel to decline to follow a prior Fifth Circuit

precedent. Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.

2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our

court may not overturn another panel’s decision, absent an intervening change

in the law, such as by a statutory amendment, or the Supreme Court, or our en

banc court.”) Such an intervening change in the law must be unequivocal, not a

mere “hint” of how the Court might rule in the future. See In re Texas Grand

Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (explaining that

in order to diverge from our prior precedent a “Supreme Court decision must be

more than merely illuminating with respect to the case before us, because a

panel of this court can only overrule a prior panel decision if such overruling is

unequivocally directed by controlling Supreme Court precedent”).

Whatever the merits of Alcantar’s argument on this point, we are not at

liberty to overrule our settled precedent because the Supreme Court’s decision

4

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No. 12-10909

in National Federation did not overrule it.3 National Federation involved, in

relevant part, a challenge to the “individual mandate” portion of the Patient

Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).

132 S. Ct. at 2577. It did not address the constitutionality of § 922(g)(1), and it

did not express an intention to overrule the precedents upon which our

cases—and numerous other cases in other circuits—relied in finding statutes

such as § 922(g)(1) constitutional. See United States v. Roszkowski, 700 F.3d 50,

58-59 (1st Cir. 2012), cert. denied, 133 S. Ct. 1278 (2013) (“[E]ven if [National

Federation] changed the Supreme Court’s Commerce Clause jurisprudence, it did

nothing to undermine the validity of 18 U.S.C. § 922(g)(1).”). Accordingly, we are

bound by our prior precedents and conclude that this issue is foreclosed.4

II. Applicability of Enhancement

Alcantar further argues that the district court procedurally erred by

assessing the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Because

Alcantar preserved this argument in the district court, we review the application

of the Guidelines de novo and the district court’s factual findings—along with

the reasonable inferences drawn from those facts—for clear error. See United

States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012), cert. denied, 133 S. Ct. 1845

(2013); United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). “A factual

finding is not clearly erroneous if it is plausible in light of the record as a whole.”

Coleman, 609 F.3d at 708.

3

For this reason, we do not reach the Government’s argument that the Commerce

Clause discussion in National Federation was dicta.

4

We note that while Alcantar seeks de novo review of the district court’s decision, the

Government suggests that plain error review should apply because Alcantar may not have

preserved this issue for our review. Regardless of whether we review the district court’s denial

of Alcantar’s motion de novo or for plain error, we affirm the court’s decision because this issue

is foreclosed by our prior precedent.

5

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No. 12-10909

U.S.S.G. § 2K2.1(b)(6)(B) provides for a four-level increase in the offense

level “[i]f the defendant used or possessed any firearm . . . in connection with

another felony offense; or possessed or transferred any firearm . . . with

knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” (emphasis added). The application

notes provide that, in examining the “in connection with” element, the

enhancement applies, in general, “if the firearm or ammunition facilitated, or

had the potential for facilitating, another felony offense or another offense,

respectively.” U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14(A). The application notes

further explain that U.S.S.G. § 2K2.1(b)(6)(B) “appl[ies] . . . in the case of a drug

trafficking offense in which a firearm is found in close proximity to drugs,

drug-manufacturing materials, or drug paraphernalia. In these cases,

application of [U.S.S.G. § 2K2.1(b)(6)(B)] is warranted because the presence of

the firearm has the potential of facilitating another felony offense or another

offense, respectively.” U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14(B)(ii) (emphasis

added).

The Guidelines’s “application notes [are] authoritative unless [they]

violate[] the Constitution or a federal statute, or [are] inconsistent with, or a

plainly erroneous reading of, that [G]uideline.” See United States v. Miller, 607

F.3d 144, 148 n.2 (5th Cir. 2010) (citation and internal quotation marks

omitted); see also Stinson v. United States, 508 U.S. 36, 38 (1993). Here, because

the other felony—possession of cocaine with intent to deliver—is a drug

trafficking offense, application note 14(B)(ii) applies. See U.S.S.G. § 2L1.2 cmt.

n.1(B)(iv) (“‘Drug trafficking offense’ means an offense under federal, state, or

local law that prohibits . . . the possession of a controlled substance . . . with

intent to . . . distribute . . . .”)5; see also United States v. Marban-Calderon, 631

5

This definition of “drug trafficking offense” explicitly includes “possession . . . with

intent to . . . distribute” and, therefore, is unlike the definition construed in United States v.

6

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No. 12-10909

F.3d 210, 212 (5th Cir. 2011). Therefore, the district court could assess the

enhancement after finding that the firearm was discovered in close proximity to

Alcantar’s drug-manufacturing materials or drug paraphernalia.6 See United

States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009) (explaining that with respect

to drug trafficking offenses, application note 14(B)(ii) provides that the “the

enhancement automatically applies” when “a firearm is found in close proximity

to drugs, drug-manufacturing materials, or drug paraphernalia”).

Here, according to the PSR, APD officers discovered drug paraphernalia,

drug-manufacturing materials, and a dismantled firearm in Alcantar’s bedroom.

The district court could adopt these facts as described by the PSR unless

Alcantar presented “rebuttal evidence or otherwise demonstrate[d] that the

information in the PSR is unreliable.” See United States v. Trujillo, 502 F.3d

353, 357 (5th Cir. 2007); see also Harris, 702 F.3d at 230. Alcantar did not

present evidence rebutting the proximity of the firearm to the drug

paraphernalia and drug-manufacturing equipment. Instead, based on the

testimony of the Federal Public Defender’s staff investigator, he asserted that

because the unloaded firearm was in three pieces and he did not know how to

assemble it, the firearm was “decidedly unhelpful” to the distribution of drugs.

He also argued that the Government’s contention that the firearm could be

assembled in as little as ten to thirty seconds did not account for the

Silva-De Hoyos, 702 F.3d 843, 847-48 (5th Cir. 2012), which required actual distribution (not

mere possession with intent to distribute) to qualify as a “drug trafficking offense.”

6

Alcantar urges that the district court should have applied the three-part analysis of

United States v. Juarez, 626 F.3d 246, 253 (5th Cir. 2010), to determine whether the firearm

had the potential to facilitate another felony offense. However, Juarez is inapplicable here

because it applies the general rule set forth in application note 14(A) to another felony offense

not involving drug trafficking, rather than the more specific analysis of application note

14(B)(ii), which applies here because the other felony involves a drug trafficking offense. See

id. at 255.

7

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No. 12-10909

“uncontroverted evidence” showing that he did not have the capacity to assemble

the shotgun.7

Despite Alcantar’s arguments, the proximity of the firearm to the drug

paraphernalia and drug-manufacturing materials makes it plausible for the

district court to have concluded that Alcantar possessed the firearm in

connection with another felony offense.8 See U.S.S.G. § 2K2.1(b)(6)(B), cmt.

n.14(B)(ii); see also Jeffries, 587 F.3d at 692-93. Thus, regardless of whether we

would have decided this issue the same way, it was not clear error to find as the

district court did. Therefore, the court did not err in assessing the four-level

enhancement under § 2K2.1(b)(6)(B).9

AFFIRMED.

7

Although we have observed that the “inoperable character” of a firearm does not

prevent it from being used or possessed in connection with another felony because “an

unloaded or broken gun may be of use in a criminal act,” United States v. Paulk, 917 F.2d 879,

882 (5th Cir. 1990), we need not reach that issue here because Alcantar does not contend that

the firearm was broken or in need or repair. Instead, he merely asserts that it was

“inoperable” because it was disassembled. The Government presented evidence that the

firearm could be assembled in as little as ten to thirty seconds and, therefore, the district court

plausibly concluded that this firearm was capable of being used or possessed in connection

with Alcantar’s felony drug offense.

8

Because U.S.S.G. § 2K2.1(b)(6)(B) applies to possession of either a firearm or

ammunition, the district court did not err in concluding that the absence of ammunition was

not dispositive. See U.S.S.G § 2K2.1(b)(6)(B).

9

Alcantar also argues that the Government failed to show that he possessed the

firearm with knowledge or intent that it would be used in connection with another felony

offense. Importantly, U.S.S.G. § 2K2.1(b)(6)(B) requires that the defendant either (1) “[u]sed

or possessed any firearm in connection with another felony offense”; or (2) “possessed or

transferred any firearm . . . with knowledge, intent, or reason to believe that it would be used

or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Because

the district court did not err in concluding that Alcantar “used or possessed any firearm in

connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), we need not consider

whether U.S.S.G. § 2K2.1(b)(6)(B)’s enhancement could be assessed based on the possession

of the firearm with knowledge or intent that it would be used in connection with another

felony offense.

8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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