United States v. Hicks

United States Court of Appeals
Fifth Circuit
REVISED NOVEMBER 30, 2004
F I L E D
November 2, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-40655
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RICHARD HICKS
Defendant - Appellant
Appeal from the United States District Court for the
Eastern District of Texas, Sherman
Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.
KING, Chief Judge:
Richard Hicks, a federal prisoner, appeals his conviction
and sentence for violating 18 U.S.C. § 922(g)(8) by possessing
firearms and ammunition while he was subject to a domestic
restraining order. He alleges that the district court improperly
admitted evidence and testimony at trial, improperly sentenced
him, and incorrectly concluded that his challenge to the
underlying protective order was barred by Fifth Circuit
precedent. He also contends that the evidence against him was
insufficient for a conviction. For the following reasons, we
1
AFFIRM Hicks’s conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 25, 2000, Officers Michael Webster and James
Lamance of the Bells Police Department observed Richard Hicks
leave the Dusty Saddle, a local bar in Whitewright, Texas, in a
white pickup truck. While driving away from the Dusty Saddle,
Hicks crossed the road’s centerline. The officers activated
their emergency lights and tried to pull him over. In response,
Hicks pulled away, ran two stop signs, and led the officers on a
high-speed chase that ended in a field. At the field, the
officers’ vehicles got stuck, and they could not continue
pursuing Hicks.
Approximately one month later, on December 20, 2000, a white
pickup truck driven by Hicks led Officer Kevin Lamance and his
brother, Officer James Lamance, on a high-speed chase. The
officers had observed Hicks’s truck leaving the Dusty Saddle and
swerving on the road, and they had activated the overhead lights
of their patrol vehicle in an attempt to stop him. Instead of
stopping, however, Hicks accelerated and engaged the officers in
a pursuit that ended in the same field where the November chase
ended. During this chase, Hicks’s truck hit a bridge and slammed
into the opposite shoulder of the road. Because Officer James
Lamance’s vehicle had become stuck in the same field a month
before, the officers chose not enter the field. Later, they
located the damaged truck at Hicks’s residence. Approximately
2
three days after this chase, on or about December 22, 2000, Hicks
purchased a new white pickup truck.
On December 23, 2000, at around 1:00 a.m., Officers James
and Kevin Lamance spotted and followed a newer-model white pickup
truck leaving the Dusty Saddle. The truck was traveling at a
high rate of speed and appeared incapable of remaining in its
lane. The officers activated their overhead lights, but instead
of stopping, the truck accelerated. The truck then turned into
the same field where the November 25 and December 20 chases had
ended. Because the officers’ patrol vehicle was not equipped
with four-wheel drive, they once again chose not to enter the
field. Based on Hicks’s history of leading officers on similar
chases, the officers radioed that the driver they were pursuing
was likely Hicks. Eventually, the white truck stopped in the
field approximately 200 yards from the patrol car.
After the truck stopped in the field, Officer Kevin Lamance
heard and felt a bullet whiz by his head. Officer James Lamance
immediately radioed that shots had been fired. Shortly
thereafter, Officer Kevin Lamance heard another shot, felt the
patrol car begin to roll forward, and realized that his brother,
who was driving, had been shot. Officer Kevin Lamance exited the
vehicle and returned fire. The pickup truck then left the field,
and Officer Kevin Lamance radioed that an officer was down. His
brother, Officer James Lamance, died from a gunshot wound to the
head.
3
Officer Kevin Lamance did not clearly see who was driving
the white truck the night his brother was killed. He believed,
however, that Hicks was at the wheel given the similarities to
the other two chases in which Hicks had engaged the police.
Additionally, Fannin County Deputy Sheriff Matt Robbins had heard
Officer James Lamance’s radio transmissions about the white
pickup truck on December 23, 2000 and had headed to the scene of
the chase to render assistance. While en route to the scene,
Officer James Lamance advised him by radio that Hicks was
probably the driver. As Deputy Robbins approached the scene of
the shooting, he saw a pickup truck that matched the description
given by Officer James Lamance entering a nearby intersection.
Robbins continued driving with the pickup truck traveling behind
him, and eventually the truck pulled into the private drive to
Hicks’s residence and entered the garage. Although Robbins
followed the truck to Hicks’s house, he did not get a good look
at the driver and could not say for sure that it was Hicks.
Immediately following the shooting, Hicks’s house was placed
under surveillance. Later that evening, a SWAT team from a
nearby county arrived and, after unsuccessfully trying to contact
Hicks, forcibly entered the house and arrested him.
During Hicks’s arrest, officers observed a .30-30 rifle on a
gun rack in Hicks’s son’s room. This rifle was not in the same
position as the other three firearms on the rack and looked to
the officers as though it had been quickly thrown into place.
4
Subsequently, the officers obtained a search warrant for Hicks’s
home. When they searched his house, they seized, among other
things, the .30-30 rifle. They also found .30-30 shell casings
in the field where Officer James Lamance was shot. John Beene, a
criminalist with the Texas Department of Public Safety, performed
ballistics tests on the shell casings and the rifle, and he
concluded that the shell casings found at the scene of the
shooting were fired from the .30-30 rifle found in Hicks’s house.
Hicks was tried in state court for the capital murder of
Officer James Lamance. A jury found him not guilty of capital
murder and related offenses. On October 10, 2002, a federal
grand jury sitting in Sherman, Texas returned an eight-count
indictment against Hicks for possessing firearms and ammunition
while he was subject to a domestic restraining order, in
violation of 18 U.S.C. § 922(g)(8). Hicks was subject to a
domestic restraining order at the time of the shooting as a
result of an incident in which he fired gunshots at his ex-wife’s
home in Bonham, Texas. The restraining order, which his ex-wife
obtained on April 25, 2000, was valid for a period of two years
and prohibited Hicks from possessing either firearms or
ammunition.
On November 14, 2002, Hicks filed four pre-trial motions in
federal district court: (1) a motion to suppress evidence; (2) a
motion to dismiss the indictment; (3) a motion to exclude the
testimony of John Beene, the government’s ballistics expert; and
5
(4) a motion in limine to exclude evidence of Officer James
Lamance’s death. On December 17, 2002, Hicks filed a
supplemental motion to dismiss the indictment, in which he stated
new grounds for dismissal, including a collateral attack on the
validity of the underlying protective order. Subsequently, the
district court denied Hicks’s motions to dismiss, motion to
exclude the expert testimony of John Beene, and motion to
suppress. Immediately before trial, Hicks once again attempted
to limit the admission of evidence regarding Officer Lamance’s
death on relevancy grounds. In response to this request, the
district court limited the government’s use of its evidence
relating to Officer Lamance and decided to instruct the jury that
Hicks had been found not guilty of murder in state court.
On January 14, 2003, after approximately three hours of
deliberation, the jury found Hicks guilty on all eight counts.
On February 3, 2003, Hicks moved for a new trial and judgment of
acquittal. The district court denied both requests.
The district court then conducted a two-day sentencing
hearing where both the government and Hicks presented evidence
about the cause of Office Lamance’s death. At the end of the
hearing, the district court found that Hicks killed Officer
Lamance and, accordingly, the court applied United States
Sentencing Guideline (“U.S.S.G.”) § 2K2.1(c)(1)(B)’s homicide
cross-reference provision, finding that Hicks’s conduct was most
analogous to second-degree murder. The district court then
6
downwardly departed, arriving at a total sentence of 180 months.
Specifically, the court sentenced Hicks to 120 months’
incarceration for count one, sixty of which were to be served
consecutively to the sentence for counts two through eight (120
months per count to be served concurrently). Hicks also received
eight concurrent three-year terms of supervised release and an
$800 special assessment.
The district court entered its judgment on May 2, 2003.
Hicks filed a notice of appeal the same day. In his appeal,
Hicks claims that the district court erred by: (1) admitting
evidence of Officer James Lamance’s death; (2) allowing John
Beene, the government’s ballistics expert, to testify at trial;
(3) denying Hicks’s motion to suppress evidence; (4) applying the
Sentencing Guideline’s second-degree murder guideline at
sentencing; (5) sentencing Hicks to consecutive sentences; (6)
failing to find that the evidence was insufficient for a
conviction; and (7) finding that Hicks’s challenge to the
validity of the underlying protective order was barred by Fifth
Circuit precedent. Below, the court addresses each of Hicks’s
allegations in turn.
II. EVIDENCE OF OFFICER JAMES LAMANCE’S DEATH
Hicks begins by alleging that the district court erred by
(1) allowing the government to introduce evidence of Officer
7
James Lamance’s death while (2) preventing Hicks from introducing
evidence that he was not responsible for Officer Lamance’s
death.1
This court reviews a district court’s evidentiary decisions
for an abuse of discretion. United States v. Pace, 10 F.3d 1106,
1115 (5th Cir. 1993). Even where the district court erroneously
admitted prejudicial evidence, the defendant’s conviction will
not be reversed if the error was harmless. See id. at 1116.
Hicks first contends that the district court should not have
allowed the government to introduce evidence of Officer James
Lamance’s death at trial. According to Hicks, this evidence
should have been excluded under FED. R. EVID. 402 as irrelevant
and under FED. R. EVID. 403 as substantially more prejudicial than
probative. Hicks also contends that the district court’s
limiting instruction, which cautioned the jury that Hicks was not
on trial for murder and had been previously acquitted of murder
in state court, was insufficient to cure the prejudicial
admission of this evidence.2
1
Hicks addresses these issues separately in his
appellate brief. For the ease of discussion, the court considers
them together.
2
The district court gave the jury the following limiting
instruction:
Members of the jury, the Defendant is not on trial in
this case for murdering anyone. He was charged in a
state court with having done so and he was found not
guilty. This testimony that you are now hearing is
admitted for the purpose of considering, your
8
When confronted with potentially prejudicial evidence, a
trial court must conduct a balancing test under FED. R. EVID. 403
to determine whether the probative value of the evidence is
outweighed by its undue prejudicial effect. United States v.
Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). Speaking generally
about the admission of “other acts” evidence--such as the
evidence in question suggesting that Hicks murdered Officer
Lamance--this court has stated:
One of the dangers inherent in the admission of “other
acts” evidence is that the jury might convict the
defendant “not for the offense charged but for the
extrinsic offense.” This danger is particularly great
where . . . the extrinsic activity was not the subject
of a conviction; the jury may feel that the defendant
should be punished for that activity even if he is not
guilty of the offense charged.
United States v. Ridlehuber, 11 F.3d 516, 521 (5th Cir. 1993)
(citations and internal quotation marks omitted). While “other
acts” evidence can be prejudicial, here it is unclear how the
admission of evidence regarding Officer Lamance’s death would
prejudice Hicks. Based on the evidence presented at trial, the
jury could not have concluded that Hicks was responsible for
Officer Lamance’s death unless it also concluded that he
possessed the ammunition in question. Thus, the traditional
rationale for excluding “other acts” evidence--that if the jury
was led to believe that the defendant committed one bad act, it
consideration insofar as you deem it relevant, as to
whether or not the Defendant possessed two live
cartridges on the morning of [December 23, 2000].
9
might unfairly find that he committed another separate bad act--
is inapplicable to this case. Additionally, the admission of
evidence regarding Officer Lamance’s death was reasonably
necessary for the jury to understand why Officer Lamance was not
available to testify. The evidence was, therefore, relevant, and
the district court did not abuse its discretion by concluding
that its probative value was not substantially outweighed by the
danger of unfair prejudice. Furthermore, the district court did
not abuse its discretion by giving the jury a limiting
instruction regarding this evidence. See United States v.
Sprick, 233 F.3d 845, 856 (5th Cir. 2000) (holding that in order
to mitigate any unfair prejudice, a trial court may give a
limiting instruction).
Even if the district court did err when it admitted evidence
regarding Officer Lamance’s death--something this court does not
conclude--we still would not reverse Hicks’s conviction because
ample other evidence was introduced from which the jury could
conclude that Hicks possessed two live rounds of .30-30
ammunition on the night in question, thereby making the error
harmless.3
3
This evidence includes, inter alia: (1) Hicks’s past
pattern of high-speed chases leading from the Dusty Saddle to the
field where the shots were fired; (2) Hicks’s recent purchase of
a new white pickup truck and the fact that the truck from which
the shots were fired was also new and white; (3) Deputy Robbins’s
testimony that he followed a white truck from the road adjacent
to the scene of the shooting to Hicks’s garage; (4) the
ballistics expert’s testimony that the .30-30 casings found in
10
Hicks fares no better when arguing that the district court
erred by not permitting him to introduce expert evidence that he
did not kill Officer Lamance because Lamance was shot by a
handgun rather than by a .30-30 rifle. Because Hicks presents no
proof that he attempted to offer this evidence at trial or that
the district court made it known that it would not revisit the
question of whether this evidence was admissible, Hicks has
failed to preserve this issue for appeal and the plain error
standard of review applies. See United States v. Jimenez, 256
F.3d 330, 342-43 (5th Cir. 2001) (“Objecting to an in limine
order excluding testimony or evidence does not relieve a party
from making an offer of proof [at trial] . . . [unless] the trial
court makes clear that it does not wish to hear further argument
on the issue.”). Hicks has pointed to no error whatsoever
committed by the district court when it ruled that Hicks’s
evidence was inadmissable. Moreover, there was a good reason for
excluding this evidence: admitting it could have confused the
issues before the jury by focusing its attention on whether
Officer Lamance died from shots fired from the truck or from
friendly fire, an issue irrelevant to the question of whether
Hicks possessed a gun and live .30-30 ammunition on the night in
question. Accordingly, the district court did not err by
the field were fired from the gun seized in Hicks’s son’s
bedroom; and (5) the fact that Hicks was alone inside his house
after the truck entered the garage.
11
excluding this evidence.
III. THE TESTIMONY OF BALLISTICS EXPERT JOHN BEENE
Hicks next contends that the district court abused its
discretion by admitting, over his pre-trial and trial objections,
the testimony of the government’s ballistics expert, John Beene.
Hicks asserts that Beene’s testimony--concluding that the bullet
casings in the field were fired from the .30-30 rifle found in
Hicks’s son’s bedroom--should have been excluded under FED. R.
EVID. 702 because Beene was not qualified to render an expert
opinion on shell casing comparisons. Further, Hicks claims that
the government failed to demonstrate that the method Beene
employed when comparing the casings met the criteria for
reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).4
This court reviews a district court’s decision to admit
expert testimony under an abuse-of-discretion standard. Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“[This]
standard applies as much to the trial court’s decisions about how
to determine reliability as to its ultimate conclusion.”). “If
we find an abuse of discretion in admitting the evidence, we
consider any error under the harmless error doctrine, affirming
the judgment unless the ruling affected a substantial right of
4
Hicks argues in separate sections of his appellate
brief that (1) Beene was unqualified to render an expert opinion
and (2) Beene’s methodology was unreliable. The court will
discuss these related issues together.
12
the complaining party.” United States v. Norris, 217 F.3d 262,
268 (5th Cir. 2000).
Hicks argues that John Beene’s shell casing comparison
technique did not meet the criteria for reliability set forth in
Daubert for several reasons. First, he contends that Beene could
not say: (1) if the technique had ever been empirically tested;
(2) if the technique had been published in a peer-reviewed
article; (3) if any studies have been performed to calculate the
rate of error for the technique; and (4) if any standards exist
for making shell-casing-to-firearm comparisons.5 Hicks also
notes that Beene admitted that he had read articles and heard
presentations critiquing shell casing comparisons precisely
because no objective standards or criteria exist for making
matches. Moreover, Hicks argues that Beene’s application of the
casing comparison technique in this case was particularly
unreliable because Beene could not remember (even when looking at
his notes) how many marks he used to make the match, how wide or
deep the markings were, and precisely where the marks were
located on the casings. Additionally, Hicks notes that Beene
admitted that he did not test-fire other .30-30 rifles to exclude
markings that were not unique to the rifle found at Hicks’s
5
Hicks originally raised these issues at the state-court
Daubert hearing during his trial for Officer Lamance’s murder.
The district court based its decision to admit Beene’s expert
testimony on the evidence presented at this state-court Daubert
hearing.
13
house. Finally, Hicks challenges Beene’s qualifications,
alleging that Beene was not qualified as an expert to testify
that shell casings discovered at the crime scene were fired from
the rifle found at Hicks’s home.
As for Hicks’s challenge to Beene’s qualifications as a
ballistics expert, there was more than ample evidence to permit
the district court to find that he is a qualified ballistics
expert. This court has held that “[t]o qualify as an expert,
‘the witness must have such knowledge or experience in [his]
field or calling as to make it appear that his opinion or
inference will probably aid the trier in his search for truth.’”
United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)
(second alteration in original) (quoting United States v.
Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978)). Additionally,
FED. R. EVID. 702 states that an expert may be qualified based on
“knowledge, skill, experience, training, or education . . . .”
See also Kuhmo Tire Co., 526 U.S. at 151 (discussing witnesses
whose expertise is based purely on experience). At the state-
court Daubert hearing, Beene testified that he had a degree in
chemistry, had received training in firearms comparisons testing
from the FBI, and had done firearms examinations for over twenty
years. At Hicks’s trial in federal court, Beene repeated most of
these claims, adding that he had performed more than a thousand
cartridge-firearm comparisons in the course of his twenty-eight-
year career with the Texas Department of Public Safety without a
14
suggestion that any of his matches were incorrect. Based on
Beene’s training, twenty-eight years of experience, and numerous
prior cartridge comparisons, the district court did not abuse its
discretion in allowing him to testify as an expert at trial.
Turning to Hicks’s attack on the reliability of Beene’s
methodology, the court notes that under FED. R. EVID. 702, expert
testimony is permissible if the district court finds, pursuant to
Rule 104(a), that the expert is testifying to (1) scientific
knowledge that (2) will assist the trier of fact to understand or
determine a fact issue. Daubert, 509 U.S. at 592. “Under
Daubert, Rule 702 charges trial courts to act as ‘gate-keepers,’
[and to] mak[e] a ‘preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.’” Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (quoting
Daubert, 509 U.S. at 592-93).
In Daubert, the Supreme Court announced several factors
that courts should consider when exercising their gate-keeping
function, including: (1) whether the technique in question has
been tested; (2) whether the technique has been subjected to peer
review and publication; (3) the error rate of the technique; (4)
the existence and maintenance of standards controlling the
technique’s operation; and (5) whether the technique has been
generally accepted in the scientific community. Daubert, 509
15
U.S. at 593-94. The proponent of expert testimony--here, the
government--has the burden of showing that the testimony is
reliable. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276
(5th Cir. 1998) (en banc). To show that expert testimony is
reliable, however, the government need not satisfy each Daubert
factor. As the Supreme Court has stated, the test of reliability
“is ‘flexible,’ and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every
case. Rather, the law grants a district court the same broad
latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination.”
Kumho Tire Co., 526 U.S. at 141 (emphasis in original).
Reaffirming the latitude given to trial judges to determine
reliability, the Supreme Court further stated in Kumho Tire that
“whether Daubert’s specific factors are, or are not, reasonable
measures of reliability in a particular case is a matter that the
law grants the trial judge broad latitude to determine.” Id. at
153.
In support of his claim that Beene’s methodology is
unreliable, Hicks invites the court’s attention to Sexton v.
Texas, 93 S.W.3d 96 (Tex. Crim. App. 2002). Sexton, however, is
inapposite. In Sexton, the Texas Court of Criminal Appeals
assessed the reliability of the technique of using magazine
markings to connect spent shell casings found at a crime scene
with live shell casings found at another location. The expert in
16
Sexton had testified that certain spent shell casings and live
shell casings had at one time been in the same magazine or
magazines because they had similar magazine marks; however, the
magazines that allegedly made those marks were never found.
Similarly, the gun used to shoot the spent shell casings was
never found. The Texas Court of Criminal Appeals held that the
expert’s methodology was not proven to be reliable given that the
absence of the magazines rendered the expert unable to make test
marks for comparison. Id. at 101. Hicks’s case is wholly
distinguishable from Sexton because the .30-30 rifle suspected of
having produced the spent shell casings was available and was
used for purposes of comparison testing.
Moreover, the matching of spent shell casings to the weapon
that fired them has been a recognized method of ballistics
testing in this circuit for decades. See United States v.
Washington, 550 F.2d 320, 324 (5th Cir. 1977) (“firearms expert
testified that the shell casing found in the trunk of the Mercury
Comet had been fired from the pistol ‘to the exclusion of all
other weapons in existence’”); see also United States v. Lopez-
Escobar, 920 F.2d 1241, 1243 (5th Cir. 1991) (observing that the
district court directed the prosecutor to arrange a comparison of
a casing found near the scene of the arrest and casings to be
test-fired from a specific gun). We have not been pointed to a
single case in this or any other circuit suggesting that the
methodology employed by Beene is unreliable.
17
Additionally, standards controlling firearms comparison
testing exist. As Beene testified at the state-court Daubert
hearing, he followed well-accepted methods and scientific
procedures in making his comparisons. He also testified in
federal court that the Association of Firearm and Tool Mark
Examiners produces literature about firearms comparison testing
that he relied on and that is authoritative in the field of
firearms and tool mark examination. Further buttressing the
reliability of his methodology, Beene also testified at the
state-court Daubert hearing that the error rate of firearms
comparison testing is zero or near zero.
Based on the widespread acceptance of firearms comparison
testing, the existence of standards governing such testing, and
Beene’s testimony about the negligible rate of error for
comparison tests, the district court had sufficient evidence to
find that Beene’s methodology was reliable. Accordingly, it did
not abuse its discretion by admitting his testimony.
IV. HICKS’S MOTION TO SUPPRESS EVIDENCE
Hicks next argues that the district court erred by denying
his motion to suppress. In his motion to suppress, Hicks claimed
that the police seized evidence, including the .30-30 rifle, from
his house in the absence of either a warrant or exigent
circumstances. Based on a transcript of testimony presented at
the state-court suppression hearing (when Hicks was tried for
18
Officer Lamance’s murder), the district court denied Hicks’s
motion to suppress, concluding that exigent circumstances
justified the warrantless entry into Hicks’s home that led to the
seizure of the evidence. Hicks now claims that the district
court reached this conclusion in error.
When a defendant challenges the denial of a motion to
suppress, this court reviews the district court’s findings of
fact for clear error and its conclusions of law de novo. United
States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004) (per
curiam). Under the Fourth Amendment, it is “presumptively
unreasonable” for law enforcement officers to enter a suspect’s
home in order to arrest him without a warrant. Payton v. New
York, 445 U.S. 573, 586 (1980). “[T]he presence of exigent
circumstances may justify a warrantless entry into a home for the
purposes of arrest,” however, if there is probable cause to
believe the suspect has committed a crime.6 United States v.
Vasquez, 953 F.2d 176, 179 (5th Cir. 1992). Because the
determination of whether exigent circumstances exist is highly
fact-specific, this court will not reverse a district court’s
finding of exigency unless it is clearly erroneous. Id.7
6
Hicks does not appeal the district court’s probable
cause determination. Hence, this court will only consider his
challenge to the district court’s finding that exigent
circumstances existed.
7
In Tamez v. City of San Marcos, 118 F.3d 1085, 1094
(5th Cir. 1997), a panel of this court adopted a bipartite
standard of review for exigency: first, it examined the district
19
According to Hicks, the police violated his Fourth Amendment
rights by engaging a SWAT team to enter his home to arrest him in
the absence of either an arrest warrant or exigent circumstances.
Additionally, based on his allegation that the firearms the
police officers observed through a window of his home were made
visible by the SWAT team’s actions during his arrest,8 he
contends that the subsequent search warrant, which was based on
the SWAT team’s observations, was invalid. Thus, he argues that
the evidence seized from his house pursuant to the search
warrant, including the .30-30 rifle, should have been suppressed
as the fruits of a poisonous tree. In support of these claims,
Hicks contends that the district court’s finding of exigency was
erroneous, especially in light of the fact that the SWAT team
waited nearly five hours from the time that the police arrived at
his home until it entered his house and arrested him. According
to Hicks, nothing happened during these five hours, and the
police could easily have used this time to obtain a warrant.
court’s underlying factual findings for clear error; second, it
examined the district court’s ultimate determination of exigency
de novo. Vasquez, however, was decided before Tamez and has been
regularly followed in this circuit. See, e.g., United States v.
Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (applying the standard
of review found in Vasquez). Accordingly, this court will use
the clearly erroneous standard of review found in Vasquez.
8
Hicks does not explain this theory on appeal. In his
motion to suppress, he contended that the SWAT team shot a hole
in the window of his son’s bedroom where several shotguns were
stored in a gun rack. He further claimed that the officer whose
affidavit was used to obtain the search warrant was only able to
view these firearms by peering through this hole in the window.
20
In this circuit, exigent circumstances exist when the
“societal costs of obtaining a warrant . . . outweigh the reasons
for prior recourse to a neutral magistrate.” United States v.
Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (quoting Arkansas v.
Sanders, 442 U.S. 753, 759 (1979)). Accordingly, this court has
held that “[e]xigent circumstances include those in which
officers reasonably fear for their safety, where firearms are
present, or where there is a risk of a criminal suspect’s
escaping or fear of destruction of evidence.” United States v.
Rico, 51 F.3d 495, 501 (5th Cir. 1995).
Based on this circuit’s understanding of when exigent
circumstances exist, the district court did not clearly err in
finding that exigent circumstances justified the SWAT team’s
warrantless entry into Hicks’s home. First and foremost, the
officers were confronted with a suspect who they believed had
just shot and killed a fellow police officer. See Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984) (holding that “an important
factor to be considered when determining whether any exigency
exists is the gravity of the underlying offense for which the
arrest is being made”). Moreover, the officers reasonably
believed that Hicks was armed and dangerous. See Rico, 51 F.3d
at 501 (holding that the presence of firearms is a factor
militating in favor of a finding of exigency). The officers also
had reason to believe that Hicks had gone to great lengths in the
past to avoid capture. Likewise, although the officers had
21
information that Hicks was likely alone in the home, they did not
know for certain whether there were any other persons inside.
Finally, Hicks’s characterization of the stand-off as simply a
five-hour period where nothing happened is disingenuous. In
fact, the record shows that the SWAT team organizer was notified
at 2:00 a.m. that the team was needed. Once the team was
assembled at the sheriff’s office and all of the relevant
equipment was gathered, it left for Hicks’s home at approximately
3:45 or 4:00 a.m. The team then formulated its plan of action,
and it conducted visual, aerial, and thermal surveillance to
determine the least-risky way of entering Hicks’s home. Finally,
it fired tear gas and pepper spray into Hicks’s home and, after
this did not work, it entered the home. In light of the fact
that the police believed that Hicks was armed, had just killed a
police officer, and did not want to be captured, exigent
circumstances existed and the SWAT team had no reason to delay
entry into Hicks’s house once it was ready to act. See Warden v.
Hayden, 387 U.S. 294, 298-99 (1967) (“The Fourth Amendment does
not require police officers to delay in the course of an
investigation if to do so would gravely endanger their lives or
the lives of others.”); Rico, 51 F.3d at 501. Accordingly, the
district court did not err when it found that exigent
circumstances justified the SWAT team’s entry into Hicks’s home.
Hicks similarly fails in arguing that observations made by
the SWAT team during and after its warrantless entry into his
22
house were improperly used as the basis for a subsequent search
warrant. According to Hicks, the judge who issued the search
warrant should not have relied on these observations to support a
finding of probable cause because they were obtained during an
illegal search. As discussed above, however, exigent
circumstances justified the SWAT team’s warrantless entry into
Hicks’s house, and the guns inside Hicks’s house were in plain
view during the SWAT team’s protective sweep of the house
incident to Hicks’s arrest. See Maryland v. Buie, 494 U.S. 325,
327 (1990) (defining a “protective sweep” as “a quick and limited
search of a premises, incident to an arrest and conducted to
protect the safety of police officers or others”). The
observations in question were not, therefore, made during an
illegal search. Accordingly, Hicks has shown no error on the
part of the district court in denying his motion to suppress.
V. APPLICATION OF THE SECOND-DEGREE MURDER GUIDELINE
Hicks next contends that the district court erred at
sentencing when it overruled his objection to the use of U.S.S.G.
§ 2A1.2, the second-degree murder guideline, to increase his
offense level. Specifically, Hicks alleges that the district
court erred by: (1) using the second-degree murder guideline
instead of the manslaughter guideline; and (2) applying the
second-degree murder guideline without first requiring proof
beyond a reasonable doubt that Hicks committed second-degree
23
murder.9
This court reviews a district court’s factual findings
during sentencing for clear error and its interpretation of the
Sentencing Guidelines, including its application of the cross-
reference provisions of § 2K2.1(c), de novo. See United States
v. Levario-Quiroz, 161 F.3d 903, 905 (5th Cir. 1998). “A
sentence will be upheld unless it was imposed in violation of
law, was an incorrect application of the sentencing guidelines,
or is outside the range of the applicable sentencing guideline.”
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).
Hicks contends that the district court improperly applied
U.S.S.G. § 2K2.1(c)(1)(B)’s cross-reference provision when it
used the guideline for second-degree murder (U.S.S.G. § 2A1.2)
rather than the guideline for involuntary manslaughter (U.S.S.G.
§ 2A1.4) to determine his offense level. Under U.S.S.G. § 2K2.1,
which applies to federal firearms offenses, “[i]f the defendant
used or possessed any firearm or ammunition in connection with
the commission . . . of another offense [and] . . . if death
resulted,” a district court should apply “the most analogous
[homicide] offense guideline” to determine the defendant’s base
offense level, provided that the resulting offense level is
greater than the otherwise-applicable level under § 2K2.1.
9
Hicks raises these issues separately in his appellate
brief. The court considers them together for the ease of
discussion.
24
U.S.S.G. § 2K2.1(c)(1)(B) (2002). After conducting a hearing on
the question of Hicks’s involvement in Officer Lamance’s death,
the district court found that Officer Lamance was killed by a
.30-30 round fired by the driver of the white pickup truck that
the police had chased. Because the jury had previously
concluded, beyond a reasonable doubt, that Hicks was the driver
in question, the district court found that Hicks killed Officer
Lamance. Specifically, the court concluded that Hicks saw the
light bar on top of Officer Lamance’s patrol car and shot at it,
killing him. The court then found that Hicks’s conduct was more
analogous to second-degree murder than to involuntary
manslaughter, and it calculated Hicks’s base offense level under
the second-degree murder guideline (U.S.S.G. § 2A1.2). According
to Hicks, the district court erred by using this guideline.
Hicks contends that the district court erred by applying
U.S.S.G. § 2A1.2 for two reasons. First, he asserts that, in
light of the evidence presented at trial and in the sentencing
hearing, the “most analogous” offense to what he allegedly
committed was involuntary manslaughter, an offense that has a
significantly lower base offense level than second-degree murder.
Second, he argues that the district court erred by not requiring
the government to demonstrate beyond a reasonable doubt that he
caused Officer Lamance’s death. Hicks alleges that this failure
led to a violation of his due process rights. He also claims
25
that the district court should have used the beyond-a-reasonable-
doubt standard because he had been previously acquitted of murder
in state court. Finally, Hicks buttresses these arguments in a
supplemental brief by referencing Blakely v. Washington, 124
S. Ct. 2531 (2004), which he claims stands for the propositions
that, under the Sentencing Guidelines: (1) a sentence cannot be
enhanced on the basis of a fact not alleged in the indictment;
and (2) any fact used to increase a sentence should be submitted
to the jury and proven beyond a reasonable doubt. Since the
federal jury did not find that Hicks killed Officer Lamance, he
argues that the district court’s use of the second-degree murder
guideline (based solely on its finding that Hicks killed Officer
Lamance) was improper in light of Blakely.
The court first turns to Hicks’s claim that the district
court erred when it computed his sentence using the second-degree
murder guideline (U.S.S.G. § 2A1.2) rather than the involuntary
manslaughter guideline (U.S.S.G. § 2A1.4). In applying the
cross-reference provisions of U.S.S.G. § 2K2.1(c), the district
court was required to determine what federal homicide offense was
most analogous to the conduct it found that Hicks had committed.
Cf. United States v. Perez, 897 F.2d 751, 753 n.2 (5th Cir. 1990)
(discussing a prior version of U.S.S.G. § 2K2.1(c)(1)). Under
federal law, the distinction between second-degree murder and
involuntary manslaughter turns on whether the defendant committed
26
the killing with “malice” or with a reduced level of culpability.
See United States v. Browner, 889 F.2d 549, 551-52 (5th Cir.
1989). Second-degree murder is defined as “the unlawful killing
of a human being with malice aforethought.” 18 U.S.C. § 1111(a)
(2000). Malice aforethought “encompasses three distinct mental
states: (1) intent to kill; (2) intent to do serious bodily
injury; and (3) extreme recklessness and wanton disregard for
human life (‘depraved heart’).” Lara v. United States Parole
Comm’n, 990 F.2d 839, 841 (5th Cir. 1993). Conversely, to be
convicted of involuntary manslaughter, a defendant must have:
(1) act[ed] with gross negligence, meaning a wanton or
reckless disregard for human life, and (2) [had] knowledge
that his or her conduct was a threat to the life of another
or knowledge of such circumstances as could reasonably have
enabled the defendant to foresee the peril to which his or
her act might subject another.
United States v. Fesler, 781 F.2d 384, 393 (5th Cir. 1986).
Based on the factual findings made by the district court at
sentencing (which Hicks does not argue are clearly erroneous),
the district court did not err when it applied the second-degree
murder guideline rather than the manslaughter guideline. By
intentionally firing his gun at Officer Lamance’s police cruiser,
which Hicks likely knew to be occupied because it had just been
driven up to the field, Hicks displayed the requisite extreme
recklessness and disregard for human life that constitutes malice
under federal law sufficient for a finding of second-degree
27
murder. See United States v. Shaw, 701 F.2d 367, 392 n.3, 393
(5th Cir. 1983) (“[T]o support a conviction for either first or
second degree murder, the government need only prove that Shaw
intended to shoot at the passing car with a ‘heart . . . without
regard for the life and safety of others.’”) (second alteration
in original) (quoting United States v. Hinkle, 487 F.2d 1205,
1207 (D.C. Cir. 1973)). Accordingly, Hicks’s contention that the
district court erred by applying the second-degree murder
guideline rather than the manslaughter guideline fails.
Hicks’s contention that the district court erred by applying
the second-degree murder guideline at sentencing without
requiring proof beyond a reasonable doubt that he committed
second-degree murder is similarly unavailing. With respect to
Hicks’s claim that the district court’s use of a lower standard
of proof violated his Fifth Amendment due process rights, the
court notes that it is well-settled in this circuit that a
district court may increase a defendant’s sentence under the
Sentencing Guidelines based on facts found by the court by a
preponderance of the evidence, provided that the resulting
sentence does not exceed the statutory maximum expressed in the
U.S. Code. See United States v. Kinter, 235 F.3d 192, 201 (5th
Cir. 2000); see also United States v. Pineiro, 377 F.3d 464, 472-
73 (5th Cir. 2004), petition for cert. filed (July 14, 2004) (No.
04-5263) (refusing to hold that the Supreme Court’s decision in
28
Blakely altered this ruling).
As for Hicks’s contention that the district court should
have applied a heightened standard of proof because he had been
acquitted of murder in state court, this contention fails for two
reasons. First, the fact that a state jury acquitted Hicks of
capital murder does not mean that he did not commit second-degree
murder under federal law, since the standard for capital murder
in Texas is higher than the standard for the federal offense of
second-degree murder. Compare TEX. PENAL CODE ANN. §§ 19.02(b)(1),
19.03(a) (Vernon 2003) (requiring for capital murder that the
defendant “intentionally or knowingly cause[d] the death of an
individual”); with Lara, 990 F.2d at 841 (holding that death
caused by extreme recklessness and a disregard for human life is
sufficient for second-degree murder under federal law). Second,
this court has explicitly held that a state-court jury’s
acquittal of a defendant for a specific crime “does not preclude
the district court from finding in a sentencing hearing,” by a
preponderance of the evidence, that “[he] did commit that
offense.” United States v. Branch, 91 F.3d 699, 742-43 (5th Cir.
1996) (applying a similar cross-reference provision of U.S.S.G. §
2K2.1(c)). Accordingly, the district court did not err by
applying the second-degree murder guideline to Hicks’s sentence
without requiring proof beyond a reasonable doubt that he
committed second-degree murder.
29
VI. THE USE OF CONSECUTIVE SENTENCES
Hicks next argues that the district court violated his Fifth
and Sixth Amendment rights by sentencing him to a total of 180
months’ imprisonment when the statutory maximum penalty for each
count of the indictment was ten years.
This court reviews a district court’s application of the
Sentencing Guidelines, including its decision to run sentences
consecutively, de novo. United States v. Garcia, 322 F.3d 842,
845 (5th Cir. 2003).
In calculating Hicks’s offense level, the district court
began by adding two points to his base offense level of fourteen
for the possession of three to seven firearms. The district
court then added four points under U.S.S.G. § 2K2.1(b)(5) for the
use or possession of a firearm or ammunition in connection with
another felony offense. Next, the district court applied the
cross-reference under U.S.S.G. § 2K2.1 based on the death of an
officer to count eight, finding the second-degree murder
guideline to be most applicable. As a result, Hicks’s base
offense level was set at thirty three. The district court then
added three additional levels under U.S.S.G. § 3A1.2(b)(1) for
the involvement of a law enforcement officer, giving Hicks a
total offense level of thirty six. Because of Hicks’s criminal
history category (Category I), the district court arrived at a
guideline range of 188-235 months’ imprisonment. Finally, the
30
district court downwardly departed from this range because it
felt that this case was outside of the heartland of cases
contemplated by the Sentencing Guidelines, sentencing Hicks to
180 months’ imprisonment (120 months on each count with 60 months
of count one to be served consecutively to the other counts).
Hicks contends that the district court improperly sentenced
him to 180 months because the statutory maximum under the U.S.
Code for each count was ten years. According to Hicks, if count
eight was not considered in the district court’s sentencing
calculation, the cross-reference under § 2K2.1 and the additional
three levels under § 3A1.2 would not have applied, resulting in a
total base offense level of sixteen. Hicks then argues that
using the district court’s finding that he was responsible for
Officer Lamance’s death as the basis for enhancing his sentence
under count eight to a sentence above the statutory maximum
applicable to each individual count violated his due process and
jury trial rights, as well as the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
The district court properly sentenced Hicks to 180 months’
imprisonment. Since the offense level for counts one through
eight largely depended on the total quantity of firearms
involved, U.S.S.G. § 3D1.2 instructs the district court to group
these counts together for sentencing purposes. See U.S.S.G.
§ 3D1.2(d) (grouping together offenses covered by U.S.S.G.
31
§ 2K2.1). Thus, the district court’s calculation of Hicks’s
sentence, although ultimately guided by the cross-reference to
second-degree murder and by the count-eight enhancement for the
involvement of a police officer, logically encompassed Hicks’s
conduct on all eight charges. Moreover, since the resultant
minimum total punishment required by the Sentencing Guidelines,
188 months, exceeded the statutory maximum for each count in the
indictment (ten years per count), the district court was required
to “impose consecutive sentences to the extent necessary to meet
the minimum total punishment [under the Guidelines].” United
States v. Garcia, 322 F.3d at 845. The only exception to this
rule, which the district court employed to Hicks’s benefit,
derives from the court’s authority to depart downwardly. See
United States v. Martinez, 950 F.2d 222, 226 (5th Cir. 1991)
(stating that “sentencing courts retain at least some discretion
under [18 U.S.C.] § 3584 [regarding the imposition of] concurrent
sentence[s], but that discretion is limited to the district
court’s power to depart from the Guidelines”).
Not only was the district court’s discretion in sentencing
Hicks curtailed by this circuit’s precedent, but Hicks’s argument
that the district court violated Apprendi--by increasing his
sentence beyond the statutory maximum based solely on factors
found by the judge and not by the jury--is similarly precluded by
circuit precedent. In United States v. McWaine, 290 F.3d 269,
32
276 (5th Cir. 2002), this court adopted the Second Circuit’s
position that Apprendi “poses no obstacle to guideline
calculations that do not result in a sentence exceeding the
statutory maximum on any single count. This is true even when
the total punishment exceeds the statutory maximum on any
particular count.” Id. (internal citations omitted). Thus, as
long as the district court’s sentence for each count did not
exceed the statutory maximum, Apprendi is not violated even
though the calculation is partly based on factors found by a
judge rather than by a jury. Id.; see also Pineiro, 377 F.3d at
472-73. Accordingly, because Hicks’s sentence on each count did
not exceed the statutory maximum expressed in the U.S. Code, his
Fifth and Sixth Amendment rights were not violated, and the
district court’s sentence was proper.
VII. THE SUFFICIENCY OF THE EVIDENCE
Hicks next argues that the evidence presented at trial was
insufficient to support his conviction under count eight of the
indictment, in which he was charged with possessing two live
Remington .30-30 cartridges while under a protective order. In
support of this claim, Hicks states that no witness identified
him as the driver of the white pickup truck, no one testified to
seeing Hicks fire the weapon that killed Officer Lamance, and the
physical evidence refutes the claim that Hicks was present in the
field on the night in question.
33
In reviewing a claim regarding the sufficiency of evidence,
this court must determine “‘whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Bellew, 369
F.3d 450, 452 (5th Cir. 2004) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). When there is a conflict over testimony,
the court will defer to the fact finder’s resolution with respect
to the weight and credibility of the evidence. United States v.
Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987). To be
sufficient, the evidence need not exclude every reasonable
hypothesis of innocence, so long as the totality of the evidence
permits a conclusion of guilt beyond a reasonable doubt. United
States v. Vasquez, 953 F.2d 176, 181 (5th Cir. 1992).
Hicks contends that the physical evidence presented at trial
directly refuted the allegation that he shot Officer Lamance. In
support of this claim, Hicks references, among other things: (1)
trial testimony regarding the State’s inability to match soil
samples of the field to soil samples on his boots; (2) the
State’s inability to match tire tracks from the field to his
truck’s tires; (3) the absence of bois d’arc material from the
undercarriage of his car when it was clear that the shooter’s
truck had run over such material; and (4) the absence of gunshot
residue on his hands when he was arrested. Hicks also argues
34
that the evidence must be insufficient because he was acquitted
of capital murder by a state jury.
Hicks’s argument that the evidence presented at trial was
insufficient because he was acquitted of capital murder by a
state court is unconvincing. Count eight of the indictment
charged Hicks with the possession of live ammunition while
subject to a protective order, not with murder. Contrary to what
Hicks suggests, the fact that a state-court jury acquitted Hicks
of capital murder says little about whether there was sufficient
evidence to show that he possessed live ammunition on December
23, 2000 (because, e.g., the state-court jury may have believed
that Hicks lacked the requisite intent for capital murder while
simultaneously concluding that he possessed live ammunition on
the night in question). Likewise, Hicks’s claim that the
physical evidence shows that he did not shoot Officer Lamance is
unavailing. As previously discussed, there is more than ample
evidence supporting the determination that Hicks’s possessed live
ammunition on December 23, 2000. For instance, it was shown at
trial that: (1) Hicks led the police on high-speed chases on two
occasions shortly before the shooting, both of which ended in the
field that was the scene of the shooting; (2) Hicks purchased a
new white pickup truck shortly before the shooting that matched
the description of the truck involved in the shooting; (3) after
the shooting, Deputy Robbins spotted a new white pickup truck
35
leaving from the direction of the field, and he followed it to
Hicks’s home; (4) two .30-30 spent casings were found at the
scene, and a .30-30 rifle was seized from Hicks’s residence; and
(5) ballistics tests showed that the two .30-30 casings found at
the scene of the shooting were fired from the .30-30 rifle seized
from Hicks’s home. Thus, when “all reasonable inferences and
credibility choices [are] made in favor of the jury verdict[,]”
it is clear that a rational jury could have found beyond a
reasonable doubt that Hicks was guilty of possessing ammunition
as alleged in count eight of the indictment. United States v.
Strong, 371 F.3d 225, 227 (5th Cir. 2004).
VIII. THE VALIDITY OF THE UNDERLYING PROTECTIVE ORDER
Finally, Hicks contends that the state-court protective
order against him, which is an essential element of each of his
eight convictions under 18 U.S.C. § 922(g)(8), is void because it
was issued by a court lacking subject-matter jurisdiction to
issue it under Texas law.10 The district court held that this
challenge by Hicks to the protective order is barred by Fifth
Circuit precedent. Hicks contends that the district court
reached this legal conclusion in error.
This court reviews a district court’s legal conclusions de
10
Although Hicks stipulated to the existence of the
protective order below, he explicitly refused to waive his
objection to the order’s legality.
36
novo. United States v. Shelton, 325 F.3d 553, 557 (5th Cir.
2003); United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th
Cir. 1999).
Hicks claims that the court that issued the protective
order--the Fannin County Court--did not have jurisdiction to
issue the order. The district court, however, held that this
challenge to the Fannin County Court’s jurisdiction was barred by
this court’s decision in United States v. Emerson, 270 F.3d 203
(5th Cir. 2001). In Emerson, the defendant asserted that his
firearms conviction should be overturned because the court that
entered the restraining order had implicitly, but not explicitly,
found that he posed a credible threat to his family or a child (a
finding required for a conviction under 18 U.S.C. § 922(g)(8)).
The Emerson court refused to entertain this challenge to the
restraining order because “nothing in section 922(g)(8) suggests
that the validity of the particular predicate court order may be
inquired into in the section 922(g)(8) criminal prosecution.”
Id. at 213. The court then concluded that a defendant “may not
collaterally attack [a] predicate order in [a] section 922(g)(8)
prosecution, at least so long as the order . . . is not so
transparently invalid as to have only a frivolous pretense to
validity.” Id. at 264.
Hicks argues that his collateral attack against the state-
court protective order is not barred by the rule announced in
37
Emerson because the protective order against him was facially
invalid. In support of this claim, he states that his ex-wife
applied for the protective order in the County Court for Fannin
County less than a month after the 336th Judicial District Court
finalized the couple’s divorce. According to Hicks, under Texas
law, his ex-wife was required to file her protective order
application in the same court that had entered the divorce
decree, i.e., the 336th Judicial District Court. See TEX. FAM.
CODE ANN. § 85.063 (West 2002) (after a divorce is complete, an
application for a protective order by a party wishing to obtain
one “shall be filed in the court that rendered the final order
[of divorce] . . . .”); see also Cooke v. Cooke, 65 S.W.3d 785,
790 (Tex. App.--Dallas 2001, no pet.). Thus, Hicks contends that
the Fannin County Court lacked subject-matter jurisdiction over
his wife’s application for a protective order and, accordingly,
the protective order was void ab initio.
Hicks’s argument that the protective order was void ab
initio fails in light of this circuit’s rule against collaterally
attacking protective orders in criminal proceedings brought under
18 U.S.C. § 922. While Emerson is this circuit’s only relevant
precedent directly mentioning § 922(g)(8), the two main cases on
which it relies--Lewis v. United States, 445 U.S. 55 (1980) and
United States v. Chambers, 922 F.2d 228 (5th Cir. 1991)--explain
why Hicks may not collaterally attack the protective order here.
38
In Lewis, a defendant charged as a felon in possession of a
firearm, in violation of the predecessor to § 922(g), argued that
his predicate felony conviction was invalid because he was
deprived of his constitutional right to representation by counsel
when he was convicted of the underlying felony. Lewis, 445 U.S.
at 56-58. The Supreme Court disagreed that this constitutional
error, which it assumed had occurred, affected the defendant’s
status under the statute as a person who had been convicted of a
felony. Id. at 60. Specifically, the Supreme Court found that
the federal firearms statute was meant to prevent all convicted
felons from possessing firearms, regardless of whether the
“felony conviction ultimately might turn out to be invalid,”
since “‘[n]othing on the face of the statute suggests a
congressional intent to limit its coverage to persons [whose
convictions are not subject to collateral attack].’” Id. at 62
(second alteration in original) (quoting United States v.
Culbert, 435 U.S. 371, 373 (1978)). Concluding that “Congress
clearly intended that the defendant clear his status [as a
convicted felon] before obtaining a firearm,” the Supreme Court
affirmed the defendant’s felon-in-possession conviction without
entertaining the defendant’s collateral attack on the predicate
felony. Lewis, 445 U.S. at 64, 66.
This court extended Lewis’s reasoning to a subsection of
18 U.S.C. § 922 in Chambers, 922 F.2d at 238. In Chambers, the
39
defendant was convicted of receiving a firearm while “under
indictment for a crime punishable by imprisonment for a term
exceeding one year,” in violation of 18 U.S.C. § 922(n).
Chambers, 922 F.2d at 231 (quoting 18 U.S.C. § 922(n)). After
the jury entered its verdict, Chambers successfully moved in
state court to quash the indictment that formed the basis of his
§ 922(n) conviction by demonstrating that the grand jury was
improperly empaneled under Texas law. On appeal to this court,
Chambers contended that he had not violated § 922(n) because he
was only subject to an invalid indictment on the date he received
the firearm. This court disagreed, holding that “[t]he federal
gun laws . . . focus not on reliability, but on the mere fact of
conviction, or even indictment, in order to keep firearms away
from potentially dangerous persons.” Chambers, 922 F.2d at 238
(alterations in original) (quoting Lewis, 445 U.S. at 67). This
court further observed that, under federal law, a lack of
subject-matter jurisdiction does not generally “render void the
final judgment of a court” unless the court’s attempt to exert
jurisdiction was “a manifest abuse of authority.” Id. at 239.
With these two principles in mind, the court concluded:
[E]ven if Chambers’ state indictment were ultimately held to
be so invalid as to confer no jurisdiction whatever on the
state court, its pretense to validity was nevertheless not
so frivolous or transparent that Chambers could simply
ignore it and notwithstanding its pendency engage in the
self-help of acquiring a firearm. We believe that Congress,
in section 922(n), intended that in such a situation
firearms acquisitions be postponed until the validity of the
40
indictment is determined.
Id. at 240.
Like the provisions at issue in Lewis and Chambers, nothing
in the language of 18 U.S.C. § 922(g)(8) indicates that it
applies only to persons subject to a valid, as opposed to an
invalid, protective order. Moreover, when Hicks’s ex-wife
obtained the protective order, it was standard practice for the
Fannin County Court to entertain applications for protective
orders submitted after divorces were rendered by the 336th
Judicial District Court because the District Court sat in Fannin
County only one week per month (it sat in Grayson County for the
rest of the month, including on the day that Hicks’s ex-wife
filed her application for a protective order). Thus, the
protective order at issue had more than a frivolous pretense to
validity. If Hicks truly believed that it was invalid, he should
have objected to the Fannin County Court’s subject-matter
jurisdiction at the original court hearing, appealed the order
for lack of jurisdiction, or sought a writ of mandamus from the
local appellate court before possessing either firearms or
ammunition. See Cooke, 65 S.W.3d at 785, 787-88. Because Hicks
did not take any of these steps, he violated the plain meaning of
18 U.S.C. § 922(g)(8) by possessing firearms and ammunition while
he was subject to a protective order, and his conviction stands.
IX. CONCLUSION
41
For the foregoing reasons, we AFFIRM Hicks’s conviction and
sentence.
42