U.S. v. Reyna

Decision Date25 November 1997
Docket NumberNo. 96-41212,96-41212
Citation130 F.3d 104
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Miguel Enrique REYNA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

James L. Powers, Paula Camille Offenhauser, Assistant U.S. Attorneys, Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Victor J. Abreu, Brent Evan Newton, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHN R. GIBSON *, JOLLY and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Miguel Reyna appeals from the judgment of conviction and the sentence entered by the district court for his violation of 26 U.S.C. § 5861(d), the unlawful possession of a firearm which is not registered in the National Firearms Registration and Transfer Record. Before trial, Reyna entered a plea of guilty and the court then sentenced him to 46 months and a term of supervised release of three years. We affirm Reyna's conviction and sentence.

I

Except for the alleged "high-speed chase" between the police and Reyna, the facts are largely undisputed in this case. The Mission (Texas) Police Department responded to a call regarding the discharge of a weapon. As officers arrived on the scene, they observed Reyna leaving his residence in an automobile with his minor child. When an officer stopped Reyna's vehicle shortly thereafter, he found a short barrel shotgun under the driver's seat that had a barrel length of approximately 12 1/2 inches and an overall length of approximately 19 1/2 inches. The police then arrested Reyna.

A federal grand jury indicted Reyna for knowingly possessing a sawed-off shotgun. Ultimately, Reyna pled guilty to the charge. During the plea colloquy, the court asked Reyna if he understood the nature of the charge and Reyna stated that he was accused of "possession of an unlawful firearm." Reyna further indicated that the unlawful firearm was a sawed-off shotgun. The court then rearraigned Reyna on the record and charged him with "knowingly possess[ing] a firearm, namely a weapon made from a shotgun with an overall length of less than 26 inches and a barrel of less than 18 inches ... not registered to him in the National Firearms Registration and Transfer Record" in violation of section 5861(d). Reyna stated that he understood the indictment and that he was pleading guilty because he was guilty. The court also asked Reyna if he understood that by pleading guilty, he was saying that he "knew that it is against the law to have this firearm without registering it with the National Firearms people." Reyna answered in the affirmative.

The district court thereafter ordered the Probation Officer to prepare a presentence investigation report ("PSR"). The PSR recommended a two-point sentence enhancement pursuant to U.S.S.G. § 3C1.2 because Reyna "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from law enforcement officers." The facts supporting the two-point enhancement as alleged in the PSR were that Reyna "initiated a high speed chase for several miles" and in his "attempt to avoid or flee from arrest, he attempted to hit one of the patrol units as he was driving in the middle of the road and caused oncoming traffic to get off the roadway." At the sentencing hearing, Reyna's attorney objected to the two-point enhancement and disputed the facts as put forth by the PSR. Reyna's attorney proffered contrary facts to the court that there was no "high speed chase," that Reyna drove less than 9/10 of a mile from his home (not "several miles"), that he was not "fleeing" the police, that he stopped as soon as the police vehicle did a u-turn and activated its lights and siren, that his near-collision with the patrol car was accidental and caused by his failing brakes, and that no oncoming traffic was forced off the roadway.

The government rested on its factual contentions as set out in the PSR. The district court considered Reyna's proffer of facts, as well as the contrary evidence in the PSR, and then denied Reyna's objection to the two-point enhancement for reckless endangerment during flight. The court later adopted all of the justifications in the PSR as justification for the sentence. The district court sentenced Reyna to serve a term of imprisonment of 46 months to be followed by three years of supervised release. This timely appeal followed.

II

Reyna appeals his guilty plea on the ground that the district court violated Rule 11 and the Due Process Clause of the Fifth Amendment when the judge failed to inform Reyna in the plea colloquy that a violation of section 5861(d) required Reyna to know the characteristics of his weapon that brought it within the statutory definition of "firearm." 1 Because the plea colloquy indicates that Reyna understood the illegal nature of his firearm and no additional information would have affected his willingness to plead guilty, we disagree.

A

Rule 11 provides that, "[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered." FED.R.CRIM.P. 11(c)(1). In McCarthy, the seminal Rule 11 case, the Supreme Court explained the purpose behind Rule 11:

First, although the procedure in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.

McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969) (footnotes omitted).

When an appellant claims that a district court failed to comply with Rule 11, we apply a two-question harmless error analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant. 2 See United States v. Still, 102 F.3d 118, 122 (5th Cir.1996), cert. denied, --- U.S. ----, 118 S.Ct. 43, 139 L.Ed.2d 10 (1997); United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc); FED.R.CRIM.P. 11(h). Thus, we must decide what procedures were required by Rule 11 in this case.

Reyna contends that the district court failed to inform him of the "nature of the charge" because he was not told that section 5861(d) requires that a defendant know the characteristics of his sawed-off shotgun that bring it within the statutory definition of firearm. Cf. Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (holding that Congress did not intend to eliminate traditional mens rea element for violations of section 5861(d) when defendant possessed a machinegun). Whether or not section 5861(d) has such a mens rea element for sawed-off shotguns is a question of first impression in this Court.

Section 5861(d) makes it unlawful:

[T]o receive or possess a firearm which is not registered ... in the National Firearms Registration and Transfer Record.

29 U.S.C. § 5861(d). Congress did not, however, extend this provision to all "firearms" as that term is commonly understood, nor to all "sawed-off shotguns." 26 U.S.C. § 5845(a)-(f); see also United States v. Barr, 32 F.3d 1320, 1323 n. 4 (8th Cir.1994) ("Many weapons commonly thought of as firearms are not included in the definition of 'firearm' under the Act."). Instead, the statutory definition of "firearm" is limited to specific types of weapons with specific characteristics, including:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such a weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; ...

26 U.S.C. § 5845(a). Although section 5861(d) is silent concerning the mens rea required for a violation, the Supreme Court held in Staples that section 5861(d) requires proof that a defendant know the characteristics of his machinegun that make it a "firearm" under the statute. Staples, 511 U.S. at 604, 619, 114 S.Ct. at 1796, 1804.

We believe that the Supreme Court's decision in Staples constrains our decision on the relevant mens rea required for violations of section 5861(d). 3 Thus, we must confront directly the question of whether the knowledge requirement implied by the Court in Staples is limited to the facts of that case, where the defendant possessed a semiautomatic rifle that had been converted into a machine gun, or whether section 5861(d) also requires that a defendant in possession of a sawed-off shotgun know the characteristics of the shotgun that bring it within the statute. Cf. Staples, 511 U.S. at 609, 114 S.Ct. at 1799 ("[T]he very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.").

Six of the seven circuits that have addressed this issue for sawed-off shotguns have held that section 5861(d) does require proof that a defendant know the characteristics of his sawed-off shotgun that bring it within the Act. See United States v. Edwards, 90 F.3d 199, 203-04 (7th Cir.1996) United States v. Dewalt, 92 F.3d 1209, 1212 (D.C.Cir.1996) (government conceding the issue); United States v. Keen, 104 F.3d 1111, 1117-18 (9th Cir.1996) (same); United States v. Mains, 33 F.3d 1222, 1229 (10th Cir.1994) United States v. Starkes, 32 F.3d 100, 101 (4th Cir.1994) United States v. Owens, 103 F.3d 953, 956 (11th Cir.) (holding same for rifle with barrel less than 16 inches), cert. denied, --- U.S. ----, 118 S.Ct. 44, 139 L.Ed.2d 11 (1997)

One circuit has disagreed, holding that the government need only prove that ...

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