U.S. v. Presley

• Decision Date: 13 April 1995
• Docket Number: No. 94-5477,94-5477
• Citation: 52 F.3d 64
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee PRESLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 64

52 F.3d 64

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee PRESLEY, Defendant-Appellant.

No. 94-5477.

United States Court of Appeals Fourth Circuit.

Argued Feb. 3, 1995.

Decided April 13, 1995.

ARGUED: Charles Randall Lowe, Tate, Lowe & Rowlett, P.C., Abingdon, VA, for appellant. Steven Randall Ramseyer, Asst. U.S. Atty., Abingdon, VA, for appellee. ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Abingdon, VA, for appellee.

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Chief Judge ERVIN and Senior Judge PHILLIPS joined.

OPINION

MURNAGHAN, Circuit Judge:

Defendant Donald Lee Presley was indicted and denied release on bond pending trial on the grounds of dangerousness to the community. Presley pled guilty to possession of a total of 79 firearms, in or affecting interstate commerce, after having been convicted of a crime punishable by imprisonment for a term exceeding one year. Because Presley had three prior violent felony convictions, his sentence was enhanced to the mandatory minimum term of fifteen years under the Armed Career Criminal Act ("ACCA"). Presley unsuccessfully sought return of fifty-one of the firearms in care of his representative.

Presley has challenged his pre-trial detention as unwarranted, his sentence under ACCA as unconstitutional and as unsupported by the facts, and the denial of his request for return of the firearms as without a legal basis. However, we find no error, and thus we affirm.

On November 6, 1972, Presley was convicted in state court of shooting into an occupied dwelling and of breaking and entering with intent to commit assault. He received a one-year sentence and a six-year sentence, respectively, for these crimes.

On February 7, 1982, Presley was convicted in state court of robbery. It appears that Presley was an accomplice in that crime, as he was in the getaway car. He received a fifteen-year suspended sentence.

On February 28, 1982, Presley was convicted in a state court proceeding of robbery in the second degree. Presley was acquitted of a second charge, use of a firearm in the commission of a felony, in the same proceeding. He was sentenced to an imprisonment term of fifteen years, and was later released on parole.

On February 22, 1993, Presley entered a shopping center mall in Cedar Bluff, Virginia, and discussed the purchase of a number of handguns with an employee. Two days later, Presley, accompanied by Ted Allen Kennedy, provided the owner of the store with a list of the type and number of firearms to be ordered. Presley later returned to the store and made a down-payment of approximately $1500. On March 1, 1993, Kennedy and Presley acquired twenty-seven handguns from the store. Kennedy filled out the firearms forms and Presley paid for the weapons. Presley and Kennedy left the store with the firearms. Kennedy took the twenty-seven firearms to Presley's trailer and left them there. One of the guns was later recovered from an armed career criminal in Michigan. The whereabouts of the remaining guns are unknown.

On March 4, 1993, Presley, accompanied by Kennedy, ordered fifty-one semi-automatic handguns from the owner of the Silver Spur Supply Company. On March 12, 1993, Presley and Kennedy returned to the store and purchased the fifty-one guns. Presley paid just over $3000 for the guns, and Kennedy filled out the paperwork for them. Presley and Kennedy left the store with the guns and were arrested by the Virginia State Police. Another firearm was found in Presley's car. The State Police took possession of the fifty-two firearms.

On November 9, 1993, Presley was named as a defendant in a six-count indictment returned by a federal grand jury sitting in Abingdon, Virginia. In count one, Presley was charged with possessing twenty-seven firearms, in or affecting interstate commerce, on March 1, 1993, after having been convicted of a crime punishable by a term of imprisonment exceeding one year. In count two, Presley was charged with possessing fifty-two firearms, in or affecting interstate commerce, on March 12, 1993, after having been convicted of a crime punishable by a term of imprisonment exceeding one year. Presley was arrested on these charges on November 10, 1993, and was brought before a United States Magistrate Judge. The magistrate ordered Presley detained pending trial. Presley filed a motion to amend the magistrate's detention order. After a hearing, the district court denied the motion on the grounds that Presley would pose a danger to the community.

On April 7, 1994, pursuant to a plea agreement, Presley entered a plea of guilty to counts one and two of the indictment. On June 15, 1994, Presley filed a motion for the return of the fifty-one guns that were purchased from the Silver Spur Company. On June 16, 1994, Presley was sentenced as an Armed Career Criminal to 180 months imprisonment, and fined $3,400 with a $100 special assessment fee. Presley's motion for return of property was denied, and the firearms were ordered forfeited. On June 21, 1994, Presley filed the instant appeal.

I. The Constitutionality of ACCA.

ACCA, codified at Section 924(e) of Title 18, United States Code, provides as follows:

In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

...

[T]he 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....

Section 922(g) of Title 18, United States Code, provides:

It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ...

...

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Presley has challenged ACCA as violative of the following dictates of the United States Constitution: the Commerce Clause, the Equal Protection Clause, the Due Process Clause, the Double Jeopardy Clause, the "Ex Post Facto" Clause, and the Eighth Amendment. We review the constitutionality of a statute de novo, but find persuasive the reasoning of the several courts which already have rejected similar challenges.

To discover whether a statute is within Congress' authority to legislate under the Commerce Clause, the question we must ask is merely whether Congress could reasonably find that the class of regulated activity affects interstate commerce. Perez v. United States, 402 U.S. 146, 150-54, 91 S.Ct. 1357, 1359-62, 28 L.Ed.2d 686 (1971). The federal statute criminalizing the possession of a firearm by a felon does not violate the Commerce Clause because sufficient nexus exists between the harm of firearms and interstate concerns. See Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977) (minimal nexus is all that is necessary to meet interstate commerce requirement for conviction under the predecessor to current felon-in-possession statute). A violation of ACCA is not a separate offense, but rather provides a sentence enhancement which is imposed, when the defendant has committed three predicate violent felonies, for the conviction of the substantive offense of possession by a felon of a firearm. 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). ACCA, as the basis for enhancement of a felon in possession sentence, has the same nexus to interstate commerce concerns as does the underlying possession offense, and thus ACCA is likewise within Congress' authority to legislate under the Commerce Clause. ^*

When a statute makes an irrational classification, unrelated to a valid government purpose, it may violate the Equal Protection Clause of the Constitution. See, e.g., McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961). ACCA, however, is rationally related to a valid purpose of criminal law--incapacitation--and therefore does not violate the Equal Protection Clause of the Constitution. We find the following analysis by the Third Circuit persuasive:

We cannot agree that the special treatment of felons with three [predicate felony] convictions is not rationally related to a valid state purpose. Congress enacted the Armed Career Criminal provision for the purpose of incapacitating particular repeat offenders, who it found were responsible for a large proportion of crimes involving theft and violence.

...

[W]e are not willing to dispute Congress' findings that ... punishing firearm possession by repeat [offenders] is an effective means of furthering the congressional objectives.

United States v. Hawkins, 811 F.2d 210, 216-17 (3d Cir.) (interpreting 18 U.S.C.App. Sec. 1202, predecessor to ACCA), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987).

When a sentence enhancement provision is "so vague that it grants undue discretion to law enforcement officials," United States v. Sorenson, 914 F.2d 173, 175 (9th Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1076 (1991), it may be void for vagueness under the Due Process Clause. We agree with the Ninth Circuit that "[t]he factors for sentence enhancement under 18 U.S.C. Sec. 924(e)(1) are quite specific," id., however, and thus ACCA is not void for...