17 F.3d 1334 (10th Cir. 1994), 92-3197, United States v. Phelps

Docket Nº:92-3197.
Citation:17 F.3d 1334
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George L. PHELPS, also known as George L. Phillips, also known as Phillip Lee Morris, Defendant-Appellant.
Case Date:February 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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17 F.3d 1334 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


George L. PHELPS, also known as George L. Phillips, also

known as Phillip Lee Morris, Defendant-Appellant.

No. 92-3197.

United States Court of Appeals, Tenth Circuit

February 28, 1994

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[Copyrighted Material Omitted]

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Charles D. Anderson (Michael L. Harris, Assistant Federal Public Defender), Kansas City, Kansas, for defendant-appellant.

Lee Thompson (Christina L. Morris, Assistant United States Attorney), Kansas City, Kansas, for plaintiff-appellee.

Before BRORBY and KELLY, Circuit Judges, and BRIMMER [*], District Judge.

BRIMMER, District Judge.

Appellant George L. Phelps ("Phelps") appeals from the enhanced sentence imposed by the district court pursuant to Sec. 924(e) of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e) (1988) ("ACCA"), raises two issues. First, he alleges that the district court erred in finding that the United States proved that he had been convicted of three prior violent felonies, a necessary prerequisite to receiving an enhanced sentence under the statute. In the alternative, he contends that the district court erred in upholding the constitutionality of Sec. 921(a)(20) of the ACCA, as applied in Sec. 924(e), against his claim that the classifications in those statutes violate the equal protection component of the Fifth Amendment. Finding no merit to appellant's contentions, we affirm the sentence of the district court.

The factual background of this case is undisputed. On December 18, 1991, Phelps was indicted in the District of Kansas in a two count indictment. Count I charged him with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1) (1988), and count II charged him with possession of an unregistered firearm, a sawed-off shotgun, in violation of 26 U.S.C. Sec. 5861(d) (1988). On January 10, 1992, the United States filed an Information of Previous Convictions, indicating its intent to seek an enhanced sentence pursuant to 18 U.S.C. Sec. 924(e). 1 The request for an enhanced sentence was based on the fact that Phelps had five prior convictions, which were for second degree burglary in 1975, second degree burglary in 1981, kidnapping in 1982, escape from confinement in 1982, and carrying a concealed weapon. 2

As part of a plea agreement with the United States, Phelps agreed to plead guilty to count I of the indictment in exchange for dismissal of count II of the indictment. On March 2, 1992, the district court accepted the guilty plea on count I and set Phelps' sentencing for May 18, 1992.

On May 7, 1992, Phelps' appointed counsel filed a sentencing memorandum raising the two arguments that he now raises before this court: that sentencing enhancement was unavailable in this case because the United States failed to prove that Phelps had three prior convictions for violent felonies, and, in the alternative, that application of the classifications in Sec. 921(a)(20) applied through Sec. 924(e) was a violation of equal protection as applied to him. The United States filed its opposition to appellant's sentencing memorandum one week later.

At sentencing, the district court concluded that appellant's first four convictions were violent felonies, as that term is defined in the ACCA, that Phelps was properly categorized as an armed career criminal, and that he was therefore subject to an enhanced sentence. The court also found that the statute and its application to Phelps did not violate equal protection, and thereafter, imposed a sentence of two hundred and ten (210) months imprisonment under Sec. 924(e)(1).

After the entry of judgment and the imposition of sentence, appellant filed a timely notice of appeal pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure. We

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have jurisdiction 3 pursuant to 28 U.S.C. Sec. 1291 (1988).

Standard of Review

We review the district court's conclusions of law regarding the interpretation of this statute de novo. See United States v. Johnson, 973 F.2d 857, 859 (10th Cir.1992); United States v. Strahl, 958 F.2d 980, 983 (10th Cir.1992) (citing United States v. Barney, 955 F.2d 635, 638 (10th Cir.1992)); United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 596, 116 L.Ed.2d 619 (1991); United States v. Irvin, 906 F.2d 1424, 1426 (10th Cir.1990). The district court's factual findings, however, are subject to more deferential review under the "clearly erroneous" standard. See United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991); United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990). As a result, the district court's findings of fact will not be disturbed unless they are "without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made." United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).


We divide our discussion of Phelps' claims into two parts. First, we analyze whether the trial court erred in concluding that Phelps' prior convictions were violent felonies, thus subjecting him to enhanced punishment under Sec. 924(e). Second, we analyze whether the trial court erred in concluding that the statutory classifications embodied in 18 U.S.C. Sec. 921(a)(20), and applied through 18 U.S.C. Sec. 924(e), did not violate equal protection in this case.


  1. The Text of the Statute

    The starting point for our analysis must, of course, be the plain language of the statute itself. Central Trust Co. v. Official Creditors' Comm. of Geiger Enters., 454 U.S. 354, 359-60, 102 S.Ct. 695, 697-98, 70 L.Ed.2d 542 (1982) (per curiam ) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)); see also Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) ("When we find the terms of a statute unambiguous, judicial inquiry is complete."). Section 924(e) of the Armed Career Criminal Act of 1984 provides:

    (1) In the case of a person who violates subsection 922(g) of this title and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, ... such person shall be fined not more than $25,000 and imprisoned not less than fifteen years ... and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.


    (2) As used in this subsection--


    (B) the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year ... that--

    (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

    (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

    18 U.S.C. Sec. 924(e) (1988) (emphases added). 4

    It is apparent from the plain language of the statute that the enhanced sentencing provision mandates that any individual

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    who has been convicted of three or more specified offenses be sentenced to "not less than fifteen years" with no possibility of parole. 5 Moreover, we have consistently adhered to the view that Sec. 924(e) is merely a penalty enhancement statute and does not create a new substantive federal crime. See, e.g., Johnson, 973 F.2d at 859; United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986). This view accords with that taken by every other circuit court that has addressed this issue, many of which cite Gregg as a leading authority for this proposition. See, e.g., United States v. Ruo, 943 F.2d 1274 (11th Cir.1991) (citing United States v. McGatha, 891 F.2d 1520, 1522-27 (11th Cir.), cert. denied, 495 U.S. 938, 110 S.Ct. 2188, 109 L.Ed.2d 516 (1990)); United States v. Wolak, 923 F.2d 1193, 1198-99 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991); United States v. Fields, 923 F.2d 358, 360 n. 4 (5th Cir.1991); 6 United States v. Rumney, 867 F.2d 714, 717-19 (1st Cir.1989); United States v. Lowe, 860 F.2d 1370, 1375-81 (7th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989); United States v. Elem, 845 F.2d 170, 174-75 (8th Cir.1988) (citing United States v. Rush, 840 F.2d 574, 577-78 (8th Cir.) (en banc ), cert. denied, 487 U.S. 1238, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988)); United States v. Blannon, 836 F.2d 843, 844-45 (4th Cir.), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. West, 826 F.2d 909, 911 (9th Cir.1987); United States v. Jackson, 824 F.2d 21, 23-26 (D.C.Cir.1987), cert. denied, 484 U.S. 1013, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988); United States v. Hawkins, 811 F.2d 210, 217-18 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987).

    Because Sec. 924(e) does not create an indictable offense, but merely enhances the level of punishment, it follows a fortiori that the prosecution is not required to prove that a defendant committed each and every element of the predicate offenses "beyond a reasonable doubt." See, e.g., McGatha, 891 F.2d at 1521-27 (discussing why the beyond a reasonable doubt standard is inapplicable in the context of proving that an individual committed the predicate offenses under Sec. 924(e)); West, 826 F.2d at 911. The predicate offenses are treated as necessary findings of fact that the trial court must find before the enhancement provision may be applied. As a result, the trial court is simply required to find that the defendant was convicted of the prior offenses by a...

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