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United States Court of Appeals
Fifth Circuit
F I L E D
In the
May 29, 2003
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 01-21166
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE GONZALES, SR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
ON PETITION FOR
members, and a majority of the judges who are
REHEARING EN BANC
in regular active service not having voted in
favor (FED. R. APP. P. 35 and 5TH CIR. R. 35),
(Opinion April 1, 2003, 327 F.3d 416)
the petition for rehearing en banc is DENIED.
Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
having been polled at the request of one of its

KING, Chief Judge, and HIGGINBOTHAM, DeMOSS, BENAVIDES, STEWART,
and DENNIS, Circuit Judges:
With respect, we dissent from the decision to deny en banc
consideration of this case.
1. The panel opinion creates a circuit conflict with the
decision of the Tenth Circuit in U.S. v. Wiseman, 297 F.3d
975 (10th Cir. 2002). In Wiseman, as here, the issue was
whether the decision in Castillo v. U.S., 530 U.S. 120
(2000), that Congress intended to create a separate offense
of possessing a machinegun shall be available to earlier
convicted defendants on habeas review. The Tenth Circuit in
Wiseman said yes, and the panel said no, holding that the
statutory interpretation is Teague barred.
2. The Supreme Court in Castillo made plain that the decision
rested on its finding of congressional intent, explaining:
"for the reasons stated, we believe
that Congress intended the firearm
type-related words it used in
§924(c)(1) to refer to an element of
a separate, aggravated crime." 530
U.S. at 131.
It is well established that when the Supreme Court
construes a statute, "it is explaining its
understanding of what the statute has meant
continuously since the date when it became law."
Bousley v. U.S., 524 U.S. 614 (1998). A statement
of what the law is and always was cannot be a new
constitutional rule of criminal procedure.
3. Congress provided that each of the "firearm type-related
words" used in §924(c)(1) describes an element of a
separate, aggravated crime. It follows that each of these
separate crimes carries its own separate punishment as set
forth in §924(c)(1). Contrary to the panel opinion, we do
not think that the decision of the Supreme Court in Apprendi
v. New Jersey, 530 U.S. 466 (2000), informs our issue.
Proof of the type of firearm used does not "increase the
maximum penalty for that crime," but simply satisfies an
element of that separate crime which has its own defined
penalty.
4.
We are persuaded that Castillo's holding that Congress
intended to create separate crimes is substantive; that

implementing its substantive holding worked procedural
changes cannot be determinative. To conclude otherwise
expands Teague beyond the authority of this court and
poses a frontal challenge to the Article III
proscriptions of judicial legislation.
For these reasons, we think the panel opinion is in error and the
majority of this Court erred in denying en banc reconsideration.
3