U.S. v. Williamson

• Citation: 567 F.2d 610
• Decision Date: 29 December 1977
• Docket Number: No. 76-1507,76-1507
• Parties: UNITED STATES of America, Appellee, v. Arthur Edward WILLIAMSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 610

567 F.2d 610

UNITED STATES of America, Appellee, v. Arthur Edward WILLIAMSON, Appellant.

No. 76-1507.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 11, 1977.

Decided Dec. 29, 1977.

William B. Long, Jr., Greenville, S. C. (Long, Black & Gaston, Greenville, S. C., on brief), for appellant.

Donald A. Harper, Asst. U. S. Atty., Greenville, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.

K. K. HALL, Circuit Judge:

Defendant, Arthur Edward Williamson, was indicted for possessing a firearm as a convicted felon, in violation of 18 U.S.C.App. § 1202(a)(1), and following a jury trial, he was convicted. A petition was filed by the United States alleging that Williamson was a "Dangerous Special Offender" under 18 U.S.C. § 3575, and the district court, agreeing, sentenced defendant to eight years in prison instead of the maximum of two years he could have received absent the § 3575 proceedings.

On appeal, defendant challenges both the firearms conviction and the sentencing treatment he was afforded under § 3575. We affirm in both respects.

I. POSSESSION OF A FIREARM BY A CONVICTED FELON

Jerry Clayton Waldrop, Luther Lee Cannon and the defendant were standing outside of Waldrop's trailer ¹ when four Greenville County Deputy Sheriffs arrived to perform a search of the trailer pursuant to a search warrant. The defendant and his two companions were ordered into the trailer, and when they turned to enter, the officers noticed a handgun in the hip pocket of Cannon and a bulge in defendant's pocket. Once inside the trailer, the handgun was taken from Cannon, and a revolver was removed from defendant's pocket. Both guns were loaded. A handgun was also removed from Waldrop's possession. All three individuals were placed under arrest.

Defendant challenges the firearms conviction, alleging that the handgun introduced at trial was the product of an illegal search and seizure. ² The facts reveal, and the district court found, that the officers knew, before they went to Waldrop's trailer, that defendant was a convicted felon. When defendant and his companions were ordered to enter the trailer, the handgun was seen in the pocket of Cannon, and a suspicious bulge was noticed in defendant's pocket. Once the officers had actually discovered one gun and had reasonable suspicion that defendant, a convicted felon, also was in possession of a gun, they were not required to ignore the obvious bulge in the defendant's pocket and place themselves in needless peril. Under the circumstances, the removal of the gun from the defendant was proper. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

II.

DANGEROUS SPECIAL OFFENDER: 18 U.S.C. § 3575

On the day before the defendant's trial began, the government filed with the court ³ a "Petition for Dangerous Special Offender Status," alleging that the defendant was a dangerous special offender within the meaning of 18 U.S.C. § 3575. Approximately three weeks after the guilty verdict was returned, the court conducted the hearing required by § 3575, and after considering the information supplied from all sources, including both parties, the court sentenced the defendant to eight years in prison. Absent the § 3575 procedure, the defendant was subject to a maximum sentence of two years for possessing a firearm.

This is the first opportunity for this court to construe the provisions of 18 U.S.C. § 3575, and other related statutes. The basic effect of § 3575 on this type of case is to provide for the possible imposition of an increased sentence, of up to twenty-five years, upon a repeat offender. ⁴ Unlike other enhancement statutes which deal with repeated crimes in specific areas of the law, ⁵ the repeat offender provisions of § 3575(e)(1) place no restrictions on the nature of the offenses used to qualify the defendant for treatment under this section, except that they be punishable by death or imprisonment in excess of one year. 18 U.S.C. § 3575(e)(1).

A. Constitutionality.

The defendant contends that § 3575 is unduly vague and creates uncertain standards, violative of due process. Without challenging any specific portion of the statute, defendant relies on United States v. Duardi,384 F.Supp. 874 (W.D.Mo.1974), which did hold that the language of § 3575(f), relating to the proof of dangerousness under that statute, was unconstitutionally vague. ⁶ Because the defendant did not particularize his challenge to the constitutionality of § 3575, but relied on the reasoning of Duardi, we must assume that defendant's constitutional challenge goes to the issue of dangerousness, and we limit our decision to that point. While Duardi was affirmed, it was for other reasons. United States v. Durardi, 529 F.2d 123 (8th Cir. 1975).

The Seventh Circuit dealt with the vagueness question as it relates to dangerousness in United States v. Neary, 552 F.2d 1184 (7th Cir. 1977), where it held:

Nor do we find that the term dangerous is overly broad or vague for the purposes of sentencing. . . . Factors routinely considered by a sentencing judge are the defendant's past record, the probation officer's report, the nature of the present offense and the defendant's attitude. . . . Likelihood of future criminality and the potential danger to society are determinations implicit in sentencing decisions. The concept of dangerousness as defined in § 3575 is a verbalization of considerations underlying any sentencing decision.

552 F.2d at 1194. Accord United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326, 336-337 (6th Cir. 1976). We agree with the fifth, sixth and seventh circuits that § 3575 is not unconstitutionally vague as it relates to the statutory concept of dangerousness. ⁷

B. Qualification as a Special Offender.

Under 18 U.S.C. § 3575(e)(1), a person is a special offender if he

has previously been convicted in courts of the United States, (or) a State . . . for two or more offenses committed on occasions different from one another and from (the instant) felony and punishable in such courts by death or imprisonment in excess of one year, for one or more of such convictions (he) has been imprisoned prior to the commission of (the instant) felony, and less than five years have elapsed between the commission of (the instant) felony and either (his) release, on parole or otherwise, from imprisonment for one such conviction or his commission of the last such previous offense or another offense punishable by death or imprisonment in excess of one year under applicable laws. . . .

To support a finding of special offender in this case, the government alleged in its petition that Williamson

was convicted in the Court of General Session of Greenville County, South Carolina, in September, 1965 for Housebreaking and Larceny for which he was given probation, and in December, 1972 for Manslaughter for which he was sentenced to four (4) years. The defendant was imprisoned and he was released June 26, 1974.

The order sentencing defendant as a special dangerous offender was entered on March 5, 1976. Defendant does not challenge the use of the 1972 manslaughter conviction as qualifying him for special offender status, which conviction not only counts as one of the needed felonies, but also is the one upon which defendant was incarcerated within the past five years. Defendant does, however, challenge the 1965 housebreaking and larceny conviction as being too remote in time to be employed in the proceeding. Since the statute does not otherwise place a time limit on the convictions which may be considered, the defendant urges that we adopt a ten-year rule, similar to Rule 609(b) of the Federal Rules of Evidence, and exclude from consideration in a § 3575 proceeding any conviction more than ten years old. ⁸ We refuse to adopt such a rule for two reasons.

First, the statute logically does not include any limitation on the age of a conviction which may be used to qualify the defendant as a special offender. In many cases, a ten-year limitation would be inconsistent with the purposes of § 3575 since the defendant could have served more than ten years imprisonment on his most recent incarceration, and would not be subject to § 3575 treatment merely because he had been confined in prison.

Second, Congress required that "less than five years have elapsed between the commission of (the instant) felony and either the defendant's release, on parole or otherwise, from imprisonment for one such conviction . . . ." 18 U.S.C. § 3575(e)(1). By so providing, Congress expressly recognized the need for a time limitation on the most recent imprisonment, and likewise, it fairly can be concluded that had Congress envisioned a time limitation for all previous felonies, it would have incorporated such into the statute.

Therefore, the government's allegations met the requirements for qualifying defendant as a special offender.

C. Proof of Dangerousness: Nature of the Proceedings.

The defendant next contends that § 3575 is not merely a sentencing proceeding, but creates an additional substantive element of the underlying conviction, and that therefore, all procedural safeguards surrounding a formal trial must be afforded the defendant. We disagree, and, like the sixth circuit, hold:

(This) statute . . . does not create a new and distinct criminal charge. Rather, the dangerous special offender criteria provide for an increase in the penalty for the offense itself. Under Title X (of the Organized Crime Control Act of 1970), the conduct embraced within the criteria must be factually related to the felony for which sentence is imposed. The Supreme Court has indicated in numerous cases that such facts do not relate to a separate criminal charge . . .. Title X involves . . . (a) "distinct issue," but it does not constitute a separate charge.

United States...