United States v. Hardeman ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50347
Summary Calendar
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
KENNETH R. HARDEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-96-CR-192-ALL)
December 24, 1997
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Kenneth R. Hardeman was convicted of being a felon in
possession of a firearm. He appeals his conviction and
corresponding sentence on four grounds. He argues that the
district court erred (1) by denying his motion for acquittal, (2)
by refusing to include two different requested jury instructions in
the charge, (3) in enhancing his sentence for prior convictions,
and (4) in its determination of his acceptance of responsibility.
The district court did not commit reversible error in denying
Hardeman’s motion for acquittal. Generally, the standard of review
*
Pursuant to 5th CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th CIR. R. 47.5.4.
on a motion to acquit is whether, viewing the evidence and the
inferences therefrom in the light most favorable to the government,
a reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt. United States v. Leal, 74 F.3d
600, 606 (5th Cir. 1996). In his motion for acquittal, Hardeman
argued that 18 U.S.C. §922(g)(1) is unconstitutional as applied to
him under the facts of this case. Specifically, he argues that the
Government failed to produce sufficient evidence that the conduct
for which he was arrested included interstate activities. However,
under the law of this Circuit, the “in or affecting commerce”
element of 18 U.S.C. is satisfied if the firearm possessed by a
convicted felon has previously traveled through interstate
commerce.1 United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.
1996); see also United States v. Gresham, 118 F.3d 258, 264-65 (5th
Cir. 1997) and United States v. Kuban, 94 F.3d 971, 973 (5th Cir.
1996), cert. denied, 117 S. Ct. 716 (1997). After a careful review
of the record, this Court holds that a reasonable trier of fact
could find that the evidence establishes a nexus between the
firearm involved in the offense and interstate commerce sufficient
to satisfy the “in or affecting commerce” element of 18 U.S.C. See
Leal, 74 F.3d at 606.
Hardeman next argues that the district court erred in denying
1
The Rawls court found that the requirement of demonstrating
an interstate nexus was satisfied by proof that the defendant’s
firearm was manufactured in another state. Rawls, 85 F.3d at 243.
There, the court held that such evidence was “sufficient to
establish a past connection between the firearm and interstate
commerce,” and concluded that §922(g)(1) was not unconstitutional
as applied to the defendant. Id.
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his requested jury instructions on “affecting interstate commerce”
and “constructive possession.” Generally, a district court’s
refusal to include a requested instruction amounts to reversible
error only if the requested instruction is substantially correct,
the actual charge given to the jury failed to substantially cover
the proposed instruction, and the omission of the proposed
instruction would seriously impair the defendant’s ability to
present a defense. United States v. Pankhurst, 118 F.3d 345, 350
(5th Cir. 1997). In the charge it gave the jury, the district
court gave instructions consistent with the present state of the
law in this Circuit as explained in United States v. Rawls. See
United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996).
Hardeman requested an instruction on “affecting interstate
commerce” at odds with the holding in Rawls.2 Therefore, because
the instruction Hardeman requested was not substantially correct,
the district court did not commit reversible error by refusing to
include it in the charge. Hardeman also requested an instruction
on “constructive possession.” After carefully reviewing the
arguments, authorities, and the record, this Court finds that
2
Hardeman requested an instruction that would only allow a
finding of an interstate nexus if “any action of Hardeman...
interferes with, changes, or alters the movement or transportation
or flow of goods, merchandise, money or other property in
commerce.” Hardeman’s requested instruction limits the scope of
evidence that may satisfy the 18 U.S.C. interstate nexus
requirement to the defendant’s affirmative acts. However, the
Rawls court held that a sufficient interstate nexus may be
established if the government proves that “the firearm possessed by
a convicted felon ha[s] previously traveled in interstate
commerce.” Rawls, 85 F.3d at 242. Because Hardeman’s requested
instruction would not encompass such a finding, it is inconsistent
with the law of this circuit.
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Hardeman’s requested instruction was covered in the charge given to
the jury. Accordingly, the district court did not commit
reversible error in refusing to include the requested instruction.
Hardeman next argues that the district court erred in
enhancing his sentence for his past convictions under 18 U.S.C.
§924(e). Whether past convictions have been proven for enhancement
purposes is a question of law, reviewed de novo. United States v.
Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir.), cert. denied, 510
U.S. 1013 (1993). In United States v. Silva, this Court held that
three convictions under Texas Penal Code §30.02 are sufficient
predicate convictions for sentence enhancement under 18 U.S.C.
§924(e). See United States v. Silva, 957 F.2d 157, 161-62 (5th
Cir.), cert. denied, 506 U.S. 887 (1992). Therefore, the district
court did not err in enhancing Hardeman’s sentence pursuant to 18
U.S.C. §924(e) for his four convictions under Texas Penal Code
§30.02.
Finally, the district court did not err in denying Hardeman a
two level reduction for acceptance of responsibility under U.S.S.G.
§3E1.1(a). Whether a defendant has accepted responsibility for a
crime is a fact question that turns on the determination of
credibility made by the fact finder at the district court. United
States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). The standard
of review for this finding of fact is “even more deferential than
clear error.” Id. Hardeman argues that he went to trial in order
to contest the constitutionality of statutes and challenge the
application of the statute to uncontested facts. However, after a
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careful review of the record, this Court holds that the district
court’s denial of the two level downward departure for acceptance
of responsibility was not clearly erroneous.
Therefore, for the foregoing reasons, the judgment of the
district court is AFFIRMED.
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