United States of America, Plaintiff-appellee, v. James Eli Huff, Ii, Defendant-appellant, 370 F.3d 454 (5th Cir. 2004)

Appellant-defendant James E. Huff II (Huff) appeals his sentence.

Huff was charged in a one count information filed December 20, 2002 with violating 18 U.S.C. §§ 922(g) (1) and 924(a) (2) by having, on August 30, 2002, when he had previously been convicted of a crime punishable by imprisonment for a term of more than one year, possessed a firearm in and affecting interstate or foreign commerce. On the same day the government filed its notice of intention to seek enhanced penalties under 18 U.S.C. § 924(e) on account of Huff's three prior convictions for violent felonies or serious drug offenses, namely his June 1982 Texas conviction for burglary of a habitation, his June 1987 Texas conviction for burglary of a habitation, and his December 1995 federal conviction for possession with intent to distribute and distribution of marihuana. On December 30, 2002, Huff filed his written waiver of indictment and on January 31, 2003, he pleaded guilty to the information. There was no plea agreement. At the sentencing hearing on May 16, 2003, the district court, finding that Huff had three prior convictions for violent felonies or serious drug offenses as stated in the government's notice of intent to seek enhanced penalties, sentenced Huff in accordance with section 924(e) to 180 months' confinement and five years' supervised release, a $3,000 fine and a $100 special assessment.

DISCUSSION

1. Section 921(a) (20).

Huff's primary contention on appeal is that section 924(e) is inapplicable because two of the three necessary prior convictions relied on to invoke section 924(e), namely his two Texas convictions for burglary of a habitation,¹  are excluded by the last sentence of 18 U.S.C. § 921(a) (20) which provides:

"Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."² 

" [T]he first clause" of this sentence "define [s] convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction." Caron v. United States, 524 U.S. 308, 118 S. Ct. 2007, 2011, 141 L. Ed. 2d 303 (1998).

Huff was convicted by a Texas court in June 1982 of burglary of a habitation with intent to commit theft and was sentenced to ten years' probation; his probation was revoked in June 1987 and he was sentenced to seven years' imprisonment; on April 1, 1988, he was paroled from imprisonment; and on April 26, 1994, his parole term expired and he had completed and discharged his sentence.

In June 1987 Huff was again convicted by a Texas court of another burglary of a habitation with intent to commit theft and was sentenced to seven years' imprisonment; on April 1, 1988, he was paroled from imprisonment; and on April 26, 1994, his parole term expired and he had completed and discharged his sentenced.

(a) Individualized restoration

Huff claims that he received a "discharge certificate" on his completion of his parole term in April 1994 and that this certificate restored his civil rights for purposes of section 921(a) (20). However, Huff never produced any such certificate or any kind of copy of it.³  Nor has Huff ever alleged an even paraphrased version of what the alleged discharge certificate actually said. The most he alleged was that it "did not expressly inform Mr. Huff that he could not possess firearms."⁴  Huff cites no Texas law, regulation or case authority indicating that the Texas Department of Criminal Justice (or the Texas Board of Pardons and Paroles) was authorized to grant him in particular, or any other convicted felon individually, on satisfactory completion of a term of parole and discharge of his sentence, any restoration of any civil rights which would not be restored anyway, on completion of his sentence apart from any such certificate, by operation of the general laws of Texas.⁵ 

With respect to the disabilities or loss or curtailment of civil rights which Texas law generally provides for in respect to convicted felon (including those convicted of burglary of a habitation) we are aware of no distinction being made between those who complete their sentence to imprisonment without parole and those who are imprisoned and thereafter paroled and complete their sentence by satisfactorily completing their parole.

As the provisions of the first clause of the last sentence of section 921(a) (20) are in the nature of an exception or proviso to the otherwise applicable provisions of sections 922(g) and 924(e), Huff bore the burden of proof on any claim that the conviction had been expunged or set aside or that he had been pardoned for it, or had had his civil rights affirmatively restored by some individualized action particularly applicable to him. See, e.g., United States v. Wise, 221 F.3d 140, 148-49 (5th Cir. 2000). The district court correctly ruled that Huff did not satisfy that burden.

(b) Restoration of rights by generalized provisions

If the laws of the convicting jurisdiction provide that convicted felons generally (or a particular class of felons) do not lose their civil rights or do not do so once they have served their sentences, or at some specified time thereafter, then the civil rights of such felons are considered restored so that once restored they are, by virtue of section 921(a) (20), considered not to have been convicted for purpose of sections 922(g) and 922(e). The restoration can be express and general, as in the case of the provision of the Louisiana Constitution that "` [F]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.'" United States v. Dupaquier, 74 F.3d 615, 617-18 (5th Cir. 1996). Texas, however, has no such generalized express restoration of civil rights. Dupaquier at 618; United States v. Thomas, 991 F.2d 206, 214 (5th Cir. 1993). In that case, we look to whether under state law the convicted felons could exercise the rights to vote, serve on a jury or hold public office. In Dupaquier, citing Thomas, we explained:

"... to determine whether state law had restored all or essentially all of Thomas' civil rights, we first looked to whether Texas law provided a generalized restoration of a felon's civil rights. See Thomas, 991 F.2d at 214. Only after finding that `Texas neither actively nor passively restores all or essentially all of the civil rights of criminals' did we look to whether Texas restored to a felon `the three civil rights considered key by the Ninth and Sixth Circuits — the right to vote, hold public office, and serve on a jury.' Having found that Texas provided neither a general restoration of a felon's civil rights nor a restoration of the three key rights, we held that Thomas had not had his civil rights restored within the meaning of section 921(a) (20) ..." Dupaquier at 618.

Huff contends that when he completed his state sentences in April 1994, Texas law did not preclude — and hence, under Thomas, "restored" — his civil right to possess firearms. Huff correctly points out that until September 1, 1994, Texas law did "not prohibit possession of firearms by persons convicted of non-violent felonies." Thomas at 214.⁶  Huff argues, without citation of authority, that his Texas burglary convictions were not for felonies "involving an act of violence or threatened violence against person or property" within the meaning of Texas Penal Code former section 46.05(a) and that his parole was completed and his sentence discharged in April 1994 before the Texas Penal Code was amended effective September 1, 1994, to bar possession of firearms by all felons (see note 6 supra). Huff correctly contends that insofar as concerns whether under Texas law his right to possess firearms was "restored" we look to the law in effect when the alleged restoration took place (April 1994) not to the limitations of later enacted law (Texas Penal Code § 46.05(a), which came into effect September 1, 1994; note 6, supra). United States v. Osborne, 262 F.3d 486 (5th Cir. 2001).⁷  We assume, arguendo only, that Huff's 1982 and 1987 Texas felony convictions were not for crimes "involving an act of violence or threatened violence to a person or property" within the meaning of former Texas Penal Code § 46.05 (see note 6 supra) and that accordingly Huff's Texas law right to possess a firearm was not restricted, and was hence "restored," as of his discharge from parole in April 1994.⁸  However, this avails Huff nothing, because even if Texas law at the relevant time did not restrict, and hence "restored," Huff's firearm possession on account of his 1982 and 1987 convictions, that does not suffice to constitute a restoration of his civil rights for purposes of the first clause of the last sentence of section 921(a) (20). We squarely so held in Thomas at 214-15.

In Thomas we held that since Texas law contained no provision which purported to provide a generalized restoration of "all or essentially all" of a felon's civil rights, we would look to whether under Texas law a convicted felon could exercise "the three civil rights considered key by the Ninth and Sixth Circuits — the rights to vote, hold public office, and serve on a jury." Id. at 214 (footnotes omitted). See also Dupaquier at 617-18.

Huff correctly points out that his right to vote has been "restored," since convicted felons are permitted to vote after discharge of their sentence. Tex. Elec.Code § 11.002(4) (a) (see note 5 supra). However, that alone does not suffice. That is the plain import of Thomas, as we recognized in Dupaquier at 618.⁹ 

While Huff concedes that his conviction renders (and rendered) him ineligible to serve on a petit jury, Tex. Gov't Code § 62.102(7), he maintains that it does not preclude his grand jury service, and thus his right to serve on a jury has not been "essentially" denied. A fatal flaw in this argument is that since at least 1965 Texas law has also disqualified convicted felons from serving on grand juries. Tex.Code Crim. Proc. art. 19.08(4).

Huff further contends that his right to hold public office has been restored. He relies on the provision of Tex. Elec.Code § 141.001(a), in effect since January 1, 1986, stating that " [t]o be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must: ... (4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities." Huff argues, without citation of authority, that merely because his rights to vote and to possess firearms in Texas had been restored he had been "otherwise released from the resulting disabilities" of his two Texas felony convictions for purposes of section 141.001(a) (4). We disagree. As noted, Huff has not been released from the disability, which results from his Texas felony convictions, to serve on either a Texas grand jury or a Texas petit jury.¹⁰  We note that this is the implicit holding of at least one other court applying Texas law. See United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994) (holding that although Texas non-violent felon's right to possess arms and to vote in Texas had been restored, he was precluded from seeking and holding public office by Tex. Elec.Code § 141.001(a) (4) as well as from jury service by Tex. Gov't Code § 62.102). See also United States v. Woodall, 120 F.3d 880, 882 (8th Cir. 1997) (following Maines).

Moreover, even if Huff were correct in his above noted argument that his right to hold office had been restored under Tex. Elec.Code § 141.001(a) (4) merely because his rights to vote and to possess arms had been restored, that still would not constitute a restoration of his civil rights under section 921(a) (20), because Huff's convictions disqualified him from both grand jury and petit jury service. Huff relies on Dupaquier where we held that the defendant's civil rights had been restored for purposes of section 921(a) (20) by virtue of the provision of the Louisiana Constitution that "` [F]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense,'" notwithstanding that" `the Louisiana legislature has barred convicted felons who have not been pardoned from serving on juries'." Id. at 617-18.¹¹  We held that "where, as here, a state's constitution declares full rights of citizenship to be restored upon a convicted felon's release from custody, we need not look further to determine that the restoration satisfies section 921(a) (20)." Id. at 618. While we plainly recognized that Thomas required a determination that "`Texas restored to a felon the three civil rights considered key by the Ninth and Sixth Circuits — the right to vote, hold public office, and serve on a jury,'" we distinguished Thomas because it imposed that requirement only after first determining that Texas did not provide any "generalized restoration of a felon's civil rights." Dupaquier at 618. That distinction would have been unnecessary had we concluded that Thomas did not require restoration of all three of the key civil rights or that under Thomas restoration of the right to vote and to hold office (and to possess arms) would be sufficient for section 921(a) (20) even where there was neither any generalized restoration of the civil rights of felons nor a restoration of the right to serve on juries. This is in accord with the law of other circuits. See United States v. Horodner, 91 F.3d 1317, 1319 (9th Cir. 1996) (where state law did not preclude felon's right to vote or to hold public office, but did preclude his jury service, his "civil rights were not substantially restored" and so he did not come within section 921(a) (20), even assuming that his right to possess firearms had been restored); Maines at 1104 (where right to vote and to possess firearms in Texas were restored, but not right to serve on jury or hold public office, section 921(a) (20) was not satisfied, applying Texas law and relying on Thomas; " [t]he Fifth and Sixth Circuits have deemed three civil rights to be fundamental in this context: (1) the right to vote; (2) the right to seek and hold public office; and (3) the right to serve on a jury.... We agree that these three civil rights are the fundamental civil rights in this context. We further agree that, in order for a conviction to fall outside the scope of section 924(e) (1) enhancement, there must not only be a restoration of all these civil rights but also the restoration of the right to possess firearms;" emphasis added); United States v. Essig, 10 F.3d 968, 975-76 (3d Cir. 1993) (where right to vote and to hold public office have been restored, but not the right to serve on a jury, section 921(a) (20) is inapplicable; citing Thomas for the holding that "the right to serve on a jury is one of the three core civil rights which a person convicted of `a crime punishable by imprisonment for more than one year' must have if he is to retain his right to bear a firearm or have it restored"). See also Woodall (applying Texas law and agreeing with Maines and Thomas).

Accordingly, Huff's 1982 and 1987 Texas convictions are not within section 921(a) (20) and are properly counted for purposes of section 924(e).

Huff argues for the first time on appeal that sentence enhancement provisions of section 924(e) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).¹²  Huff's argument lacks merit. See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002).

Huff's remaining claim of error,¹³  which he raises for the first time on appeal, is that the district court erred in ordering the instant 180 month sentence to run consecutively to Huff's twenty-four month sentence imposed on vacation of his supervised release. In December 1996 Huff was convicted in federal district court of possession with intent to distribute and distribution of marihuana and was sentenced to 174 months' imprisonment and five years' supervised release. His term of supervised release began in July 2000. Earlier on the same May 16, 2003 afternoon that Huff was sentenced for the instant section 922(g) (1) offense, the district court (in its Cause No. H-01-869) revoked his supervised release imposed for the 1995 conviction and sentenced him to twenty-four months' imprisonment (with no additional term of supervised release).¹⁴  Shortly thereafter, the sentencing hearing on the instant section 922(g) (1) offense (No. H-02-742 in the district court) began, the same district judge presiding. At the conclusion of the sentencing hearing, the district court sentenced Huff to "180 months in prison to be served after the completion of your two-year sentence in Criminal No. H-01-869" (the sentence imposed on revocation of supervised release). The written judgment provides that the 180 month "term of imprisonment is ordered to run consecutive to and after the defendant's twenty-four (24) months term of imprisonment ordered in Docket Number 4:01CR00869-001."

On appeal Huff argues that the district court "erred by imposing consecutive sentences and not applying the methodology in U.S.S.G. § 5G1.3(b) or explaining if and how § 5G1.3 was employed" and "erred when it failed to explain if and how § 5G1.3(c) was employed," Huff explains that he "bases his contention in this argument on the interpretation of § 5G1.3, Application Note 6, as being instructive rather than mandatory and that the District Court retained discretion under § 5G1.3(c) to impose a `reasonable incremental punishment' for the instant offense rather than a consecutive sentence," citing United States v. Swan, 275 F.3d 272 (3d Cir. 2002). Huff, however, states that he "concedes that this issue has been resolved contrary to his position, in United States v. Alexander, 100 F.3d 24 (5th Cir. 1996)" and that he "raises this argument to preserve it for possible further review," noting that "a split in the Circuit Courts exists on this issue."¹⁵  Huff likewise concedes that his complaint that his 180 month sentence was made consecutive to the earlier imposed twenty-four month sentence on revocation of supervised release is raised for the first time on appeal and must hence be reviewed under the plain error standard of review. Fed. R. Crim. P. 52(b).¹⁶  Huff is correct that his arguments were considered and rejected by this court in Alexander, and likewise that there is a split in the circuits on this issue. Alexander's holding is in accord with that of the First, Eighth and Ninth Circuits, while the Second, Third and Tenth follow the view urged by Huff. See Swan, at 277-78 & n. 3. Alexander, of course, binds us. If that were all there were to it, we would simply reject Huff's argument because, there being no "error," by virtue of Alexander, there could be no "plain error." Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997).

Unfortunately, by reason of developments not called to our attention by either party, the matter is somewhat more complicated than that. The guidelines in effect at the time of Huff's sentencing in May 2003 were those of the Guidelines Manual which became effective November 1, 2002, and the provisions of application note 6 to section 5G1.3 and of section 5G1.3(c) (and of section 7B1.3(f) and its application note 4) were all the same as those which were in effect at the time of the sentencing considered in Alexander. However, though not mentioned by either party, effective November 1, 2003,¹⁷  after Huff's sentencing, the Sentencing Commission, by its amendment 660, among other things, deleted application note 6 to section 5G1.3 and in essence replaced it with a new application note 3(c), reading as follows:

"(C) Undischarged Terms of Imprisonment Resulting from Revocation of Probation, Parole or Supervised Release. — Subsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note 4 and subsection (f) of § 7B1.3 (Revocation of Probation or Supervised Release), the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation."

Amendment 660 also changed section 5G1.3(c) by adding just after "case," in its introductory phrase "In any other case", the words "involving an undischarged term of imprisonment." The amendment also made a presently irrelevant change in section 5G1.3(b), replaced application notes 2 through 5 and 7 (as well as 6) to section 5G1.3, and added a new section 5K2.23. No change was made in section 7B1.3(f) or its application note 4. The Commission stated its reasons for amendment 660 in four paragraphs, only the second of which addresses the changes relevant to the matter at hand, and it states:

"Second, this amendment addresses how this guideline applies in cases in which an instant offense is committed while the defendant is on federal or state probation, parole, or supervised release, and has had such probation, parole, or supervised release revoked. Under this amendment, the sentence for the instant offense may be imposed concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment; however, the Commission recommends a consecutive sentence in this situation. This amendment also resolves a circuit conflict concerning whether the imposition of such sentence is required to be consecutive. The amendment follows holdings of the Second, Third, and Tenth Circuits stating that imposition of sentence for the instant offense is not required to be consecutive to the sentence imposed upon revocation of probation, parole, or supervised release. See United States v. Maria, 186 F.3d 65, 70-73 (2d Cir. 1999); United States v. Swan, 275 F.3d 272, 279-83 (3d Cir. 2002); United States v. Tisdale, 248 F.3d 964, 977-79 (10th Cir. 2001)."

As Huff has not argued in this court that his case is controlled by new application note 3(c) to section 5G1.3(c), nor even mentioned the existence of the amendments effective November 1, 2003, we would be justified in giving no consideration to those matters. However, even if we considered them, Huff would not be entitled to relief on this appeal.

It would seem clear that if Huff had been sentenced on or after November 1, 2003, the district court would have had discretion to make its 180 month sentence run concurrently (or partially concurrently) with the previously imposed twenty-four month sentence for supervised release revocation (although the Commission recommends that the sentence imposed be consecutive to that for the revocation). Further, it seems likely that, if at such a post October 31, 2003 sentencing the district court had, over proper objection, imposed consecutive sentences because it believed, by virtue of Alexander, it was required to do so, then, on proper appeal urging that that was error, we would vacate and remand for resentencing. But Huff was sentenced in May 2003, and section 1B1.11(a) of the Guidelines, as in effect then and now, directs that the Guidelines Manual in effect at the date of sentencing, be used.¹⁸  Nevertheless, we have held that on direct appeal we may "consider" an amendment to commentary of the relevant guideline, even though the amendment did not become effective until after sentencing, "if it is intended to clarify application of a guideline" and "`was not intended to make any substantive changes to it [the guideline] or its commentary.'" United States v. Gross, 26 F.3d 552, 555 (5th Cir. 1994). Where we have done this we have generally pointed to express language on the part of the Commission that the amendment is a clarifying one. See, e.g., United States v. Aguilera-Zapata, 901 F.2d 1209, 1213 (5th Cir. 1990); United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993); United States v. Anderson, 5 F.3d 795, 801-02 (5th Cir. 1993).¹⁹  We have stated that such an "amendment is not controlling, [but] we consider it as evidence of the Sentencing Commission's intent behind" the original guideline. Anderson at 802. See also, e.g., Gross at 553 (postsentencing clarifying amendment to commentary confirms meaning we would otherwise give to preamendment commentary). On the other hand, we have held that if an amendment which becomes effective postsentencing is substantive it may not be considered on direct appeal. United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995). We have held that the failure of the Commission to state that a postsentencing amendment is intended to be clarifying is evidence that it is substantive and hence inapplicable. See United States v. McIntosh, 280 F.3d 479, 485 (5th Cir. 2002); United States v. Davidson, 283 F.3d 681, 684 (5th Cir. 2002). See also United States v. Caldwell, 302 F.3d 399, 418 (5th Cir. 2002). When an amendment addresses a matter as to which it notes that the circuits are in conflict we have suggested that this is an indication the amendment is not clarifying. Davidson at 684-85. However, we have held such an amendment clarifying where it is expressly stated to be so and it essentially confirms our reading of the commentary without the amendment. Gross. That the amendment is not listed in U.S.S.G. § 1B1.10(c) as being retroactively applicable may be an indication that it is substantive. McIntosh at 485; Davidson at 685. However, the amendment held in Gross to be clarifying appears not to have been so listed. See also United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995) (a clarifying statement can be retroactive though not listed in section 1B1.10).

That an amendment alters the language of commentary to a guideline rather than the language of the guideline itself may be some indication that it is not substantive. Cf. United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994) (amendment is substantive where it amends guideline rather than commentary). But see Capers at 1112 (suggesting that this makes no difference since commentary is binding).

Some circuits have held that amendments which alter existing law in the circuit are for that reason substantive; other circuits have held to the contrary. See, e.g., Capers, 61 F.3d at 1108-12 (reviewing authorities, and holding postsentencing commentary amendment relied on by defendant on appeal to be substantive, despite Commission's statement that it was clarifying, because amendment "cannot be reconciled with circuit precedent"); United States v. Sanders, 67 F.3d 855, 856-57 (9th Cir. 1995) (postsentencing amendment to commentary relied on by defendant on appeal described by Commission as clarifying and resolving circuit split held to be clarifying despite changing circuit law; dissenting opinion would hold it substantive because it changes circuit law, id. at 857-58). See also United States v. Kissick, 69 F.3d 1048, 1053 (10th Cir. 1995) (indicating that postsentence amendment to commentary described by Commission as clarifying would be treated as substantive where it would overrule existing circuit precedent); United States v. Diaz, 245 F.3d 294, 300-05 (3rd Cir. 2001).

To sustain Huff's argument on appeal concerning his 180 month sentence being made consecutive to his twenty-four month sentence for supervised release revocation we would at least have to hold that the relevant portion of amendment 660 is clarifying. But we would have to do more than that, because Huff's objections, not raised at the sentencing, are reviewed only under the plain error rule (and because Huff has not ever even mentioned the noted amendment effective November 1, 2003). This requires not only that there be "error" but also, among other things, that the error be "plain" in the sense of "clear" or "obvious," United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993), as judged by the state of the applicable law when the reviewing court acts. Johnson, 117 S. Ct. at 1549. As applicable here, that means that it must now be clear — plain or obvious — that the relevant portion of amendment 660 is merely clarifying. We hold that it is not clear, plain or obvious that the relevant part of amendment 660 is merely clarifying. While the amendment is of commentary, it is not listed in section 1B1.10(c), and, more significantly, the Commission has not expressly stated that it is clarifying (although it does describe two other changes made by amendment 660 as clarifying) and it is directly inconsistent with the law clearly established in this circuit by Alexander. Accordingly, Huff has not shown plain error. Moreover, under Fed. R. Crim. P. 52(b) relief even for error which is "plain" is not to be granted unless the failure to do so would seriously affect the fairness, integrity or public reputation of judicial proceedings. Johnson at 1550. Even if the relevant portion of amendment 660 were clarifying so that on a remand the district court could exercise discretion to make the 180 month sentence wholly or partially concurrent with the twenty-four month sentence, there is nothing in the record to suggest that the district court would likely do so and it is clear that under amendment 660 making the sentence entirely consecutive is not merely permitted but is what the Commission "recommends." Hence for this reason also Huff has not met the standard for plain error relief.

Accordingly, the judgment of the district court is

AFFIRMED.