U.S. v. Schmidt

• Decision Date: 16 May 2007
• Docket Number: No. 06-10525.,06-10525.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Neil SCHMIDT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.3d 253 UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry Neil SCHMIDT, Defendant-Appellant. No. 06-10525. United States Court of Appeals, Fifth Circuit. May 16, 2007.

Gary C. Tromblay (argued), Dallas, TX, Amanda R. Burch, Lubbock, TX, for U.S.

Jerry V. Beard, Asst. Fed. Pub. Def. (argued), Lubbock, TX, for Schmidt.

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

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jerry Schmidt appeals his conviction. Because the district court properly found that Schmidt's prior conviction was a predicate offense for purposes of 18 U.S.C. § 922(g)(1), we affirm.

I.

Schmidt was charged with four counts of being a felon in possession of a firearm in violation of § 922(g)(1), which prohibits the possession of a firearm by "any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ...." 18 U.S.C. § 922(g)(1). Schmidt's predicate offense was a 1985 Texas felony conviction of burglary of a vehicle, and it is not disputed that in 1985 the offense was punishable by more than one year's incarceration.

In 1994 Texas modified its penal code, and burglary of a vehicle was reduced from a third degree felony to a Class A misdemeanor. Under Texas law, misdemeanors are punishable by a maximum of one year's incarceration. TEX. PENAL CODE § 12.21. Schmidt argues that because, at the time of the events giving rise to his § 922 offense, burglary of a vehicle was not punishable by a term of more than one year, it cannot properly be a predicate offense.

II.

This case turns on what point in time is used to measure the incarceration term of the predicate offense. Schmidt argues

487 F.3d 254

that, because Congress used the term "punishable" instead of "was punishable," the correct point to use is the time of the events giving rise to his § 922 conviction, when burglary of a vehicle was not punishable by over one year's incarceration. The government reasons that the correct point is the time of the predicate conviction, when burglary of a vehicle was punishable by more than one year. A close reading of the 1994 amendment, however, shows that we do not need to resolve this question to decide Schmidt's appeal.

The 1994 amendment includes a retroactivity clause stating that the changes apply "only to an offense committed on or after [September 1, 1994]." Acts 1993, 73rd Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3708. The amendment further states that "[a]n offense committed before [September 1, 1994] is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Id.¹ Texas courts that have sentenced defendants after September 1, 1994, for offenses committed before that date have used the pre-amendment code.²

It is not disputed that Schmidt's predicate offense, burglary of a vehicle, was committed in 1985. Because this was before the effective date of the amendment, the offense is governed by the pre-amendment code. Thus, it is irrelevant which point in time is chosen to examine Schmidt's potential sentence for the burglary—under the...