United States v. Knowles ( 1994 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    ___________________________________
    No. 93-1557
    ___________________________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RODNEY EUGENE KNOWLES,
    Defendant-Appellant.
    ____________________________________________________
    Appeal from the United States District Court for the
    Northern District of Texas
    ___________________________________________________
    (August 10, 1994)
    Before GOLDBERG, KING, and WIENER, Circuit Judges.
    GOLDBERG, Circuit Judge:
    Fort Worth police officers arrested Rodney Eugene Knowles on
    the   campus   of    Eastern   Hills   High    School   on    April    15,   1992.
    Knowles, who    had     previously     been    convicted     of   a   felony,   was
    carrying a fully loaded handgun.
    In a two count indictment, federal authorities charged
    Knowles with one count of being a convicted felon in possession of
    a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of
    possession of a firearm in a school zone in violation of 18 U.S.C.
    § 922(q)(1)(A).       Without entering into a plea agreement, Knowles
    pleaded guilty to both counts.                The district court sentenced
    Knowles to a 63-month term of imprisonment on the possession of a
    firearm by a felon count and to an 18-month term of imprisonment on
    the possession of a firearm in a school zone count.      The district
    judge ordered the 18-month sentence to be served consecutively to
    the 63-month sentence, resulting in a total term of imprisonment of
    81 months.
    On the same day that he was sentenced, June 11, 1993,
    Knowles's attorney filed a Notice of Appeal.       In this notice,
    Knowles appealed "to the United States Court of Appeals for the
    Fifth Circuit from the sentence entered in this matter."        Three
    days later, on June 14, 1993, the district court entered the
    judgment in this case.1    After the district court entered the
    judgment, but before any briefs in this appeal had been filed, this
    court delivered an opinion in United States v. Lopez, 
    2 F.3d 1342
    (5th Cir. 1993), cert. granted, 
    114 S. Ct. 1536
    (1994).      In that
    case, we found 18 U.S.C. § 922(q) unconstitutional, stating that
    Congress had not properly invoked its power under the Commerce
    Clause when it enacted that statute.   
    Id. at 1367-68.
      In his brief
    to this court Knowles took up this argument and asserted that Lopez
    requires reversal of his conviction and sentence on the possession
    of a firearm in a school zone count.   Knowles also argued that the
    district court imposed the 18-month sentence on the possession of
    a firearm in a school zone count in violation of the federal
    1
    The fact that Knowles filed his Notice of Appeal before the
    judgment was entered in this case is of no consequence. Rule
    4(b) of the Federal Rules of Appellate Procedure provides that a
    "notice of appeal filed after the announcement of a decision,
    sentence, or order--but before entry of the judgment or order--is
    treated as filed on the date of and after the entry."
    Accordingly, Knowles's Notice of Appeal will be treated as filed
    on June 14, 1993, the date that the district court entered the
    judgment in this case.
    2
    sentencing guidelines.         In its brief, the government did not
    question   the    adequacy    of    Knowles's    Notice   of   Appeal.   The
    government responded to both Knowles's Lopez argument and the
    contentions based on the sentencing guidelines.
    Raising the matter sua sponte at oral argument, see United
    States v. Cronan, 
    937 F.2d 163
    , 164 (5th Cir. 1991), we requested
    the parties to address whether Knowles's Notice of Appeal, which
    stated only that Knowles appealed from the "sentence entered in
    this matter," was sufficient to allow him to appeal his underlying
    convictions and challenge the constitutionality of section 922(q).
    The parties addressed this issue in supplemental briefs.             Knowles
    argued that his Notice of Appeal was adequate to allow him to
    challenge his conviction on the possession of a firearm in a school
    zone count.      Alternatively, Knowles moved for leave to correct or
    amend his Notice of Appeal.          For its part, the government agreed
    that Knowles's Notice of Appeal was sufficient to allow a challenge
    to the constitutionality of the conviction based on section 922(q),
    but registered its opposition to Knowles's motion to correct or
    amend his Notice of Appeal.            We will address the adequacy of
    Knowles's Notice of Appeal before turning to the other issues
    presented in this appeal.
    I.    Appellate Jurisdiction
    Rule 3(c) of the Federal Rules of Appellate Procedure
    instructs appellants to "designate the judgment, order or part
    thereof appealed from."            We have consistently given a liberal
    interpretation to this requirement.             See, e.g., United States v.
    3
    Ramirez, 
    932 F.2d 374
    , 375 (5th Cir. 1991); see also Smith v.
    Barry, 
    112 S. Ct. 678
    , 681 (1992) ("Courts will liberally construe
    the requirements of Rule 3.").        For example, in United States v.
    Rochester, 
    898 F.2d 971
    (5th Cir. 1990), we wrote that a "[f]ailure
    to   properly   designate    the     order   appealed       from    is     not   a
    jurisdictional defect, and may be cured by an indication of intent
    in the briefs or otherwise."          
    Id. at 976
    n.1.           Similarly, in
    Turnbull v. United States, 
    929 F.2d 173
    (5th Cir. 1991), we
    explained that "a mistake in designating a judgment appealed from
    should not bar an appeal as long as the intent to appeal a specific
    judgment can be fairly inferred and the appellee is not prejudiced
    or misled by the mistake."          
    Id. at 177;
    see also S.E.C. v. Van
    Waeyenberghe,   
    990 F.2d 845
    ,    847   n.3   (5th   Cir.    1993);     In    Re
    Transamerican Natural Gas Corp., 
    978 F.2d 1409
    , 1414 (5th Cir.
    1992), cert. dismissed, 
    113 S. Ct. 1892
    (1993); Friou v. Phillips
    Petroleum Co., 
    948 F.2d 972
    , 974 (5th Cir. 1991).
    Applying the rules articulated in these cases, we held in
    Turnbull that the appellant, who had only appealed from a district
    court order that denied a motion for a new trial, could raise
    arguments   addressing   the   underlying        judgment      in   that    case.
    
    Turnbull, 929 F.2d at 178
    .          We reached an identical result in
    United States v. Lopez-Escobar, 
    920 F.2d 1241
    (5th Cir. 1991) and
    in Osterberger v. Relocation Realty Serv. Corp., 
    921 F.2d 72
    (5th
    Cir. 1991).
    Our opinion in 
    Ramirez, supra
    , is particularly instructive
    in this case.   In that case, the appellant prepared a typewritten
    4
    notice of appeal stating that he appealed the judgment and his
    sentence.   The    appellant   then       drew   a   line   through   the   word
    "sentence," leaving intact the portion of the notice of appeal that
    referred to the judgment.      We granted the appellant's motion to
    correct or amend the notice of appeal and allowed him to challenge
    the sentence on appeal, despite the fact that he had originally
    crossed out the reference to "sentence" in the notice.                
    Ramirez, 932 F.2d at 375
    .   We explained that this action was consistent with
    our approach to other similar cases.                 
    Id. The appellant
    had
    addressed his challenge to the sentence in his brief and hence had
    fairly indicated his intent to appeal the sentence.              We also found
    that allowing the defendant to challenge the sentence in that case
    did not prejudice the government. These factors satisfied our rule
    that "when the intent to appeal an unnamed or mislabeled ruling is
    apparent (from the briefs or otherwise) and no prejudice results to
    the adverse party, the appeal is not jurisdictionally defective."
    Id.; see also 
    Turnbull, 929 F.2d at 177
    .
    United States v. Winn, 
    948 F.2d 145
    (5th Cir. 1991), cert.
    denied, 
    112 S. Ct. 1599
    (1992) is also illuminating.             In that case,
    the defendant filed a notice of appeal after the jury returned its
    guilty verdict, but before the sentenced was imposed and the
    judgment was entered.    We held that we had jurisdiction over an
    appeal of the defendant's sentence even though the notice of appeal
    mentioned only the jury verdict--not the sentence or the judgment
    that incorporated it--and even though the notice of appeal was
    filed before the sentence had been imposed.                 We first explained
    5
    that the defendant's failure to specify expressly in his notice of
    appeal that he was appealing his sentence did not ipso facto bar an
    appeal of the sentence.     
    Id. at 154.
        We then examined Ramirez and
    found that the defendant could appeal both the conviction and the
    sentence.   
    Id. at 155.
            As in previous cases, the defendant had
    briefed the issues that related to his sentence and thereby fairly
    expressed   his   intent   to    appeal   the   sentence.   Moreover,   the
    government conceded that it was not misled or prejudiced.         We thus
    held that the defendant could appeal his sentence.
    Some of our cases have suggested that it is more acceptable
    to allow a defendant who has appealed only his or her conviction to
    contest the sentence than it is to allow a defendant who has only
    appealed the sentence to challenge his or her conviction.               For
    instance, in 
    Ramirez, 932 F.2d at 376
    , we wrote that "[a] criminal
    defendant who appeals his sentence but not his conviction is likely
    acknowledging his guilt and merely contesting his punishment.           The
    converse is not necessarily so because a defendant . . . who
    appeals his conviction is almost always appealing his sentence
    too."   Although this statement may be accurate as an empirical
    matter, we do not believe that it is necessarily true.           It seems
    equally plausible to us that there may be (1) defendants who only
    appeal their sentences who have challenges to their underlying
    convictions and (2) defendants who only appeal their convictions
    who do not have challenges to their sentences.          Nevertheless, the
    point that we wish to make is a more narrow one.             Distinctions
    between defendants who appeal their convictions and defendants who
    6
    appeal their sentences should not be determinative when questions
    concerning potentially defective notices of appeal arise.                   The
    standard by which we determine whether a notice of appeal should be
    read to allow an appeal of an unnamed or mislabeled ruling should
    be what we have traditionally required:             whether the appealing
    party has exhibited an intent to appeal the ruling and whether the
    opposing party was misled or prejudiced. 
    Ramirez, 932 F.2d at 375
    ;
    
    Turnbull, 929 F.2d at 177
    .
    In the present case, Knowles specified only his sentence in
    his Notice of Appeal; he did not indicate that he was appealing his
    conviction on the possession of a firearm in a school zone count.
    However, the failure of Knowles's Notice of Appeal to refer to this
    conviction "does not per se preclude appealing" his conviction.
    
    Winn, 948 F.2d at 154
    .       We must apply the rule we articulated in
    Ramirez and similar cases: "[W]hen the intent to appeal an unnamed
    . . . ruling is apparent (from the briefs or otherwise) and no
    prejudice    results    to   the     adverse   party,   the   appeal   is   not
    jurisdictionally defective."          
    Ramirez, 932 F.2d at 375
    (emphasis
    supplied).     Here, Knowles demonstrated his intent to appeal his
    conviction on the possession of a firearm in a school zone count in
    his brief to this Court.           Moreover, the government has conceded
    that it was not misled or prejudiced by the allegedly defective
    Notice of Appeal.        Therefore, we find that Knowles should be
    allowed   to   appeal   both    his    conviction   and   sentence     on   the
    possession of a firearm in a school zone count.
    II.    The Merits
    7
    We now turn to the merits of Knowles's argument in favor of
    reversal of his conviction for possession of a firearm in a school
    zone, a violation of the Gun Free School Zones Act, 18 U.S.C. §
    922(q)(1)(A).    In Lopez, we concluded that "section 922(q), in the
    full reach of its terms, is invalid as beyond the power of Congress
    under the Commerce Clause."        
    Lopez, 2 F.3d at 1367-68
    .       Knowles
    maintains   that    our   Lopez   decision   requires   reversal    of   his
    conviction on the possession of a firearm in a school zone count.
    Before we can address Knowles's contentions, though, we must
    confront the fact that Knowles failed to raise any challenge to the
    constitutionality of the Gun Free School Zones Act in the district
    court below.       Because of this failure, our review of Knowles's
    challenge to the constitutionality of section 922(q) is confined to
    a search for plain error.         See Fed. R. Crim. P. 52(b) ("Plain
    errors or defects affecting substantial rights may be noticed
    although they were not brought to the attention of the court.").
    The Supreme Court has recently clarified an appellate court's power
    under Rule 52(b) "to correct errors that were forfeited because not
    timely raised in the District Court."        United States v. Olano, 
    113 S. Ct. 1170
    , 1176 (1993).         In Olano, Justice O'Connor explained
    that an appellate court may exercise its authority under Rule 52(b)
    only if there is an "error", and the error is "plain", and the
    plain   error   affects   "substantial    rights".      
    Id. at 1777-78.
    "Deviation from a legal rule is ``error' unless the rule has been
    8
    waived."     
    Id. at 1777.2
          An error is "plain" if it is "clear" or
    "obvious".     
    Id. Finally, in
    most cases, a plain error affects
    "substantial rights" when it is "prejudicial".           In other words, it
    must affect "the outcome of the District Court proceedings."               
    Id. at 1778.
       Once these conditions have been met, Rule 52(b) gives the
    Courts of Appeals the discretion to correct errors not brought to
    the   attention      of    a   District   Court.   The   Supreme   Court   has
    instructed us on how to exercise this discretion:             the Courts of
    Appeals should "correct a plain and forfeited error affecting
    substantial rights if the error ``seriously affect[s] the fairness,
    integrity or public reputation of judicial proceedings.'"             
    Id. at 1779
    (quoting United States v. Atkinson, 
    297 U.S. 157
    , 160 (1936)).
    The fact that Knowles is asserting an argument based on the
    Constitution does not nullify the applicability of Rule 52(b).              It
    is a truism that a "constitutional right may be forfeited in
    criminal as well as civil cases by the failure to make timely
    assertion of the right before a tribunal having jurisdiction to
    determine it."       Yakus v. United States, 
    321 U.S. 414
    , 444 (1944).
    Many courts, including ours, have found that alleged constitutional
    errors in criminal convictions--that do not amount to plain error--
    are forever forfeited by the failure to object contemporaneously to
    that error in the district court.             See, e.g., United States v.
    Vontsteen, 
    950 F.2d 1086
    , 1089 (5th Cir.) (en banc) (collecting
    2
    "Waiver" in this context "is the ``intentional
    relinquishment or abandonment of a known right.'" 
    Id. (quoting Johnson
    v. Zerbst, 
    304 U.S. 458
    , 464 (1938)). "Forfeiture", in
    contrast, is the "failure to make the timely assertion of a
    right." 
    Id. 9 cases),
    cert. denied, 
    112 S. Ct. 3039
    (1992).                However, we have
    long       held   that,     under   the   plain   error   inquiry,    errors   of
    constitutional dimension will be noticed more freely than less
    serious errors.           United States v. Faulkner, 
    17 F.3d 745
    (5th Cir.
    1994); Alexander v. United States, 
    390 F.2d 101
    , 103 n.3 (5th Cir.
    1968).
    In the present case, we have no difficulty concluding that
    Knowles's attack on the constitutionality of the Gun Free School
    Zones Act satisfies the requirements of Rule 52(b).                  It is self-
    evident that basing a conviction on an unconstitutional statute is
    both "plain" and an "error" as Olano defines those terms.               It is of
    no consequence that Lopez was decided after the proceedings in the
    district court concluded.            Since this case is on direct appeal,
    newly announced rules apply.              Griffith v. Kentucky, 
    479 U.S. 314
    (1987) ("[A] new rule for the conduct of criminal prosecutions is
    to be applied retroactively to all cases, state or federal, pending
    on direct review or not yet final, with no exception for cases in
    which the new rule constitutes a ``clear break' with the past.").
    In any event, the novelty of our decision in Lopez3 also militates
    in favor of allowing Knowles to raise a Lopez-based argument for
    the first time here on direct appeal.              Cf. Reed v. Ross, 
    468 U.S. 1
    , 16 (1984) ("[W]here a constitutional claim is so novel that its
    legal basis is not reasonably available to counsel, a defendant has
    cause for his failure to raise the claim" on direct appeal and may
    3
    The dearth of statutes that have been struck down as beyond
    Congress's power under the Commerce Clause since the 1930s speaks
    to the novelty of the Lopez decision.
    10
    thus raise it in a habeas corpus proceeding).4           It is also evident
    that this error affected the outcome of the proceedings below. Had
    the Lopez argument been raised in the district court, it should
    have resulted in the dismissal of the Gun Free School Zones Act
    count from Knowles's indictment.             Finally, we agree that our
    failure to address Knowles's challenge to the constitutionality of
    the Gun Free School Zones Act would seriously affect the fairness,
    integrity,    and      public   reputation    of   judicial     proceedings.
    Accordingly, since this Court found in Lopez that the Gun Free
    School   Zones   Act    is   unconstitutional,     we   must   conclude   that
    Knowles's conviction based on that Act must be reversed.
    The government has attempted to distinguish this case from
    Lopez, but we find these distinctions unavailing. The government's
    first argument is rooted in the following dicta that appears in
    Lopez:    "Conceivably, a conviction under section 922(q) might be
    sustained if the government alleged and proved that the offense had
    a nexus to 
    commerce." 2 F.3d at 1368
    (footnote omitted).      Even if
    we assume that a conviction under section 922(q) could be sustained
    by alleging and proving a commerce nexus, we do not think that this
    is such a case.     The government maintains that Knowles's Gun Free
    School Zones Act conviction is proper because the indictment
    alleged, and the factual resume filed in this case stated, that
    Knowles's firearm traveled in interstate commerce. It is true that
    4
    But cf. Teague v. Lane, 
    489 U.S. 288
    , 301 (1989)
    (prohibiting the retroactive application of "new" rules in habeas
    corpus proceedings "not dictated by precedent existing at the
    time the defendant's conviction became final.")
    11
    the     indictment   alleged   that    Knowles's   handgun    traveled   in
    interstate commerce.      However, this allegation appeared only in
    Count One of the indictment, the count that charged Knowles with
    being a convicted felon in possession of a firearm.          Count Two, the
    count that charged Knowles with violating the Gun Free School Zones
    Act, did not allege that the firearm that Knowles was carrying
    traveled in interstate commerce.           This omission is fatal to the
    government's argument because the failure of Count Two to allege
    any commerce nexus renders that charge fundamentally defective.
    See 
    Lopez, 2 F.3d at 1368
    .       While it is true that an allegation
    made in one count of an indictment may be incorporated by reference
    in another count of the indictment, see Fed.R.Crim.P. 7(c)(1), we
    have held that any such incorporation must be expressly done.
    United States v. Hajecate, 
    683 F.2d 894
    , 901 (5th Cir. 1982), cert.
    denied, 
    461 U.S. 927
    (1983); Davis v. United States, 
    357 F.2d 438
    (5th Cir.), cert. denied, 
    385 U.S. 927
    (1966); see also 1 Charles
    A. Wright, Federal Practice and Procedure: Criminal § 123 at 349
    (1982) ("[E]ach count is considered as if it were a separate
    indictment and must be sufficient without reference to other counts
    unless they are expressly incorporated by reference.") (footnotes
    omitted).     Here, Count Two, the count that charged Knowles with
    possession of a firearm in a school zone, did not expressly refer
    to the interstate commerce nexus alleged in Count One, the count
    that charged Knowles with being a felon in possession of a firearm.
    This omission renders Count Two defective.           See Lopez, F.3d at
    1368.
    12
    Noting that a guilty plea generally waives defects in the
    underlying proceedings, the government also claims that Knowles's
    conviction on Count Two is proper because Knowles pleaded guilty.
    This   argument   is   not   persuasive.     We   have   reversed    other
    convictions against defendants who had pleaded guilty to charges
    brought under the Gun Free School Zones Act.       See United States v.
    Handy, No. 93-1485 (5th Cir. Oct. 20, 1993) (unpublished).          We have
    done so for the well-established reason that a guilty plea does not
    waive the right of the defendant to challenge the constitutionality
    of the statute under which he is convicted.       See Menna v. New York,
    
    423 U.S. 61
    , 62-63 n.2 (1975) ("[A] plea of guilty to a charge does
    not waive a claim that--judged on its face--the charge is one which
    the State may not constitutionally prosecute.").
    III.   Conclusion
    Knowles's conviction on the possession of a firearm in a
    school zone count is REVERSED, and the sentence imposed based upon
    that conviction is VACATED.
    13