United States v. Emerson , 86 F. App'x 696 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-10104
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY JOE EMERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:98-CR-103-C
Before JONES, MAGILL,* and SMITH, Circuit Judges.
PER CURIAM:**
Timothy Joe Emerson has appealed his convictions for
possession of a firearm while under a restraining order in
violation of 18 U.S.C. § 922(g)(8). Previously this court reversed
the district court’s order dismissing the indictment on
*
Circuit Judge of the Eighth Circuit, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
constitutional grounds. See United States v. Emerson, 270 F.3d
203, 264–65 (5th Cir. 2001).
Emerson first contends that his convictions should be
reversed because the facts of the case establish the defense of
entrapment by estoppel and that his attorney rendered ineffective
assistance in failing to request a jury instruction on that
defense. Emerson raised these questions for the first time in his
motions for judgment of acquittal and for a new trial.
Because Emerson did not request a jury instruction on the
defense of entrapment by estoppel, we review for plain error the
district court’s failure to give the instruction. See United
States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003). The district
court’s denial of the motion for judgment of acquittal is reviewed
de novo. See United States v. Izydore, 167 F.3d 213, 219 (5th Cir.
1999). The denial of a motion for a new trial, a disfavored
motion, is reviewed for an abuse of discretion. See United States
v. Sullivan, 112 F.3d 180, 182 (5th Cir. 1997). Although questions
of ineffective assistance of counsel are generally not resolved on
direct appeal, we reach the issue in this case because the issue
was raised in Emerson’s motion for a new trial and because the
record has been developed adequately. See United States v.
Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999).
Under governing Fifth Circuit law, the defense of
entrapment by estoppel was not available to Emerson. Emerson was
not “actively misled” by a duly empowered federal official about
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the legality of his possession of firearms while under the state
restraining and protective orders. See United States v. Ortegon-
Uvalde, 179 F.3d 956, 959 (5th Cir. 1999); United States v. Spires,
79 F.3d 464, 466–67 (5th Cir. 1996). This court has already held
that Emerson was placed on constructive notice of the existence of
federal firearms laws pertaining to domestic relations cases. See
United States v. Emerson, 270 F.3d at 216. To the extent that
Emerson actually perceived a conflict between his duties under the
state court order and federal law, Emerson could have sought clari-
fication from the state court. It would not have been objectively
reasonable for Emerson to rely on the state court’s order requiring
him not to dispose of property as a pretext for possessing
firearms. See United States v. Trevino-Martinez, 86 F.3d 65, 69
(5th Cir. 1996). No error has been shown, plain or otherwise.
Because Emerson has not shown that he has a valid entrapment-by-
estoppel defense, he cannot show that his attorney’s failure to
request an instruction on the defense or to object to the lack of
an instruction was professionally unreasonable or that he was
prejudiced. See Strickland v. Washington, 466 U.S. 668, 687
(1984).
Next, Emerson has raised various constitutional
challenges to the legality of 18 U.S.C. § 922(g)(8). The constitu-
tionality of the statute was considered in the prior appeal in this
case. See Emerson, 270 F.3d at 212–72. Under the law-of-the-case
doctrine, “an issue of fact or law decided on appeal may not be
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reexamined . . . by the appellate court on a subsequent appeal.”
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).
The argument that Congress exceeded its authority under
the Commerce Clause by enacting 18 U.S.C. § 922(g)(8) has been
rejected by this court. See Emerson, 270 F.3d at 217; see also
United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998).
Citing a footnote in our prior opinion, see 270 F.3d at 217 n.8,
Emerson argues that his possession of firearms was purely passive
as the firearms were purchased prior to 1993 and that, since that
date, the weapons had never left Tom Green County, Texas. Emerson
argues also that counts one and two charged him with “purely
passive” possession of firearms on December 10, 1998. These
arguments are without merit. “Possession of a firearm is active,
not passive, conduct.” United States v. Shelton, 325 F.3d 553, 564
(5th Cir. 2003). Moreover, Emerson never attempted to dispute that
the weapons charged in the indictment never traveled in interstate
commerce after 1994. See Emerson I, 270 F.3d at 217, n.8; see also
United States v. Lee, 310 F.3d 787, 788 (5th Cir. 2002); United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Emerson’s Tenth Amendment argument is barred because it
was waived in the prior appeal, see Emerson I, 270 F.3d at 218.
“The waiver doctrine bars consideration of an issue that a party
could have raised in an earlier appeal in the case.” United States
v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999), rev’d on other
grounds, 530 U.S. 120 (2000). His contention that this statute
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violates the Second Amendment was rejected in the court’s prior
opinion. See Emerson, 270 F.3d 260–63.
Emerson contends that 18 U.S.C. § 922(g)(8) violates the
Fifth Amendment guarantee of due process, facially and as applied
to him. Emerson complains: (1) that the statute does not require
express notice of the deprivation of the right to keep and bear
arms; (2) that application of the statute in this case was funda-
mentally unfair because it was impossible for him to maintain the
assets of the marital estate and to divest himself of possession of
his guns; and (3) that the statute criminalizes passive activity in
violation of the rule in Lambert v. People of the State of
California, 355 U.S. 225, 228–30 (1957). Emerson distinguishes
between his firearms possession on November 16, 1998, as charged in
count three of the superseding indictment, and his possession on
December 10, 1998, as charged in counts one and two, suggesting
that the former possession was “active” and the latter was
“passive.”
As was previously discussed, a similar argument was
rejected in Shelton, 325 F.3d at 564, in which we clarified that
“[p]ossession of a firearm is active, not passive, conduct.”
Moreover, Emerson’s first and third contentions have been rejected
and are without merit. In Emerson I, 270 F.3d at 216–17, the court
noted in a footnote that this case does not present a situation in
which possession of the firearm was incident to a good faith effort
by the defendant to rid himself of continued possession of a
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previously possessed firearm. Id. at 216 n.6. The panel also
rejected the Lambert argument. Id. Application of the statute to
Emerson was not fundamentally unfair.
Regarding his sentence, Emerson objects to the assessment
of a criminal history point pursuant to U.S.S.G. § 4A1.1(c).
Because, as he admits, assessment of the criminal history point did
not affect his sentence, any error by the district court was
harmless. See Williams v. United States, 503 U.S. 193, 202–03
(1992); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).
Emerson also objected in the district court that U.S.S.G.
§ 2K2.1(a)(5) violates the Second Amendment as applied to him. The
probation officer concluded that Emerson’s base-offense level was
18, under U.S.S.G. § 2K2.1(a)(5), because the offense involved a
firearm described in 18 U.S.C. § 921(a)(30) (defining the term
“semiautomatic assault weapon”), i.e., a Polytech Model AK47S.
Emerson argues that he legally possessed the Polytech AK47S prior
to entry of the state court order. He argues also that the
Guideline makes no distinction between semiautomatic assault
weapons grandfathered under 18 U.S.C. § 922(v) and those which are
not. In so doing, he contends, Ҥ 2K2.1(a)(5) artificially in-
flates the punishment for those who lawfully exercise their Second
Amendment right to own a grandfathered semiautomatic assault weapon
and later become subject to a prohibition . . . .” This argument
is without merit.
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Under 18 U.S.C. § 922(v)(1) it is generally unlawful to
possess a semiautomatic assault weapon. The assault-weapon ban
does not apply “to the possession or transfer of any semiautomatic
assault weapon otherwise lawfully possessed under Federal law on
the date of the enactment” of subsection 922(v). See 18 U.S.C.
§ 922(v)(2). The exemption in 18 U.S.C. § 922(v)(2) applies only
to prosecution for violations of 18 U.S.C. § 922(v)(1). Congress
enacted 18 U.S.C. § 922(v) to address the increased threat and harm
resulting from criminals and mentally deranged individuals using
semiautomatic assault weapons to commit unlawful violence.
See H. R. REP. NO. 103-489, 12–20 (1994), reprinted in 1994
U.S.C.C.A.N. 1801, 1820–28. The sentencing guideline does not
exempt pre-ban weapons. See U.S.S.G. § 2K1.2(a)(5). The
Sentencing Commission’s decision to punish offenses involving such
weapons more severely is “reasonable and not inconsistent with the
right of Americans generally to keep and bear their private arms
. . . .” Emerson, 270 F.3d at 261.
For the foregoing reasons, the judgment and sentence are
AFFIRMED.
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