U.S. v. Padia
| Decision Date | 15 November 1978 |
| Docket Number | No. 78-5221,78-5221 |
| Citation | 584 F.2d 85 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gilbert G. PADIA, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Celso C. Rodriguez, Juan P. Gonzalez, Corpus Christi, Tex., for defendant-appellant.
J. A. Canales, U. S. Atty., James R. Gough, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
Gilbert Padia appeals his conviction under 18 U.S.C. §§ 922(h) and 924 1 after trial before the district court (jury trial having been waived), on a charge of receiving firearms that had been shipped in interstate commerce while being a convicted felon. Padia contends that the district court erred in failing to hold that defendant was not a convicted felon when he received the weapons involved in this case. We reject that assertion and affirm his conviction.
On August 26, 1977, Padia sold two rifles that had been stolen approximately six days earlier to an undercover officer of the Nueces County, Texas Sheriff's Office, who then turned the arms over to a Treasury Department agent. At trial, the parties stipulated that on January 8, 1976 Padia had been convicted in Texas court of assaulting a police officer, a felony. However, Padia argued that the Texas court, acting under the state's adult probation law, Tex.Crim.Code Ann. Art. 42.12, §§ 3, 7, 2 subsequently expunged the conviction: first, by placing him on probation for three years, and then, on May 2, 1977, by reducing and terminating the probation, setting aside the guilty verdict and dismissing the assault indictment.
Contrary to Padia's assertions, however, the Texas court's actions do not alter his status as a convicted felon under federal gun control laws. 18 U.S.C. § 922(h). This court has had prior occasion to consider the nature of Texas' adult probation law and has rejected the argument that it "serves to expunge or erase the conviction." Gonzalez de Lara v. United States, 5 Cir., 1971, 439 F.2d 1316, 1318; Gutierrez-Rubio v. Immigration & Naturalization Service, 5 Cir., 1972, 453 F.2d 1243, 1244, Cert. denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); See Qureshi v. Immigration & Naturalization Service, 5 Cir., 1975, 519 F.2d 1174, 1176; United States v. Driscoll, 5 Cir., 1972, 454 F.2d 792, 799. "Rather than a statute that completely erases the conviction . . . the provision . . . is accurately characterized as one that rewards a convicted party for good behavior during probation by releasing him from certain penalties and disabilities otherwise imposed upon convicted persons by Texas law." Gonzalez de Lara v. United States, supra, 439 F.2d at 1318.
Moreover, we have repeatedly explained that "(t)he manner in which a Texas court chooses to deal with a party subsequent to his conviction is simply not of controlling importance" where, as here, "a function of federal, not state law . . . is concerned." Id.; Qureshi v. Immigration & Naturalization Service, supra, 519 F.2d at 1176; United States v. Driscoll, supra, 454 F.2d at 799; Gutierrez-Rubio v. Immigration & Naturalization Service, supra, 453 F.2d at 1244. We agree with the district court that Padia was a convicted felon for purposes of 18 U.S.C. § 922(h) and accordingly that the defendant was guilty of the charge asserted in the indictment. We therefore affirm his conviction.
AFFIRMED.
* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
1 Under 18 U.S.C. § 922(h), it is unlawful for any person "who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Section 924 provides that "(w)hoever violates any provision of this chapter . . . shall be fined not more than...
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