U.S. v. Rush
| Decision Date | 25 February 1988 |
| Docket Number | No. 86-1811,86-1811 |
| Citation | 840 F.2d 580 |
| Parties | UNITED STATES of America, Appellee, v. Leroy RUSH a/k/a James Johnson, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James Delworth, Asst. Federal Public Defender, St. Louis, Mo., for appellant.
Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., for appellee.
Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
Leroy Rush appeals from his conviction of possession of a firearm by a convicted felon, 18 U.S.C. App. Sec. 1202(a) (1982 and Supp. III 1985) (repealed 1986) and his sentencing by the district court 1 to fifteen years without parole. Rush first argues that the question of whether he had three prior convictions so as to require a fifteen year sentence under the Armed Career Criminal Act of 1984 2 (ACCA) should have been submitted to the jury. After hearing oral argument before a panel, the court of its own motion referred this issue to the court en banc and consolidated it with United States v. Cloyd, 819 F.2d 836. The issue was decided adversely to Rush in the opinion issued this day in the consolidated cases. His remaining arguments are that collateral estoppel bars his conviction; the evidence was insufficient to support his conviction; his sentence constituted cruel and unusual punishment; his counsel was ineffective; and evidence seized after police detained him should have been suppressed. The conviction and sentencing are affirmed.
Rush argues that the evidence against him was insufficient in various respects to convict and sentence him under the ACCA provisions of 18 U.S.C. App. Sec. 1202(a) requiring a minimum sentence of fifteen years without parole for persons who have been previously convicted of three robberies or burglaries. First, he argues that his convictions on two occasions of a total of five robberies and burglaries were not sufficient to warrant sentencing under the ACCA. Rush argues that the convictions must occur in "distinct adjudications." This argument has no merit, for it is the criminal episodes underlying the convictions, not the dates of conviction, that must be distinct to trigger the provisions of the ACCA. Cf. United States v. Petty, 828 F.2d 2 (8th Cir.1987) (). Rush's record shows that he has one conviction for burglary from 1975 and convictions for robbery stemming from at least two distinct criminal episodes occurring in 1965, one of the 1965 robberies having been committed on July 9, 1965 and two having been committed on September 11, 1965.
Rush next argues that there was insufficient proof that the weapon he possessed was a "firearm" within the meaning of section 1202, because there was no evidence regarding the results of a test-firing of the gun. 18 U.S.C. Sec. 1202(c)(3) (1982) (repealed 1986) defines "firearm" as The government introduced the testimony of the police officer who seized Rush's gun, describing both the weapon and the cartridges in the weapon at the time he seized the weapon. The weapon and cartridges were introduced into evidence, and Rush stipulated that the firearm named in the indictment was a "Charter Arms .38 caliber revolver." Another police officer testified that he had test-fired the weapon, though he did not testify about the results of the test-firing. This was abundant evidence to prove that the weapon was a firearm within the meaning of section 1202(c)(3). See United States v. Polk, 808 F.2d 33, 34 (8th Cir.1986) ().
Rush next argues that sentencing under the ACCA was barred by collateral estoppel, because he was convicted under section 1202(a) in the Southern District of Illinois and sentenced to a lesser penalty at a time when he had the same convictions that formed the basis for his present enhanced sentence. Apparently, Rush reasons that the district court in Illinois considered the previous convictions insufficient to invoke the ACCA and that this determination was binding on the district court in this...
To continue reading
Request your trial
-
People v. Preuss, Docket No. 83218
...cert. den. 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989); United States v. Schieman, 894 F.2d 909 (CA7, 1990); United States v. Rush, 840 F.2d 580 (CA8, 1988), cert. den. 487 U.S. 1238, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988); United States v. Wicks, 833 F.2d 192 (CA9, 1987), cert. d......
-
U.S. v. Lowe
... ... Nevertheless, it is incumbent upon this court to first consider whether the matter is properly before us in this appeal, or whether the argument was waived when Lowe did not raise it in his main brief ... As a general rule, this court ... 8 This is a position it has stated with some consistency. See, e.g., United States v. Rush, 840 F.2d 574, 576 (8th Cir.1988); United States v. Jackson, 824 F.2d 21, 23 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 715, 98 L.Ed.2d ... ...
-
U.S. v. Hudspeth
...United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 580 (8th Cir.1988); United States v. Antonie, 953 F.2d 496, 498-99 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 138, 121 L.Ed.2d 91......
-
U.S. v. Schoolcraft
... ... Sec. 921(a)(20)(B) ... Our standard of review in sufficiency of the evidence claims is deferential. " 'It is not for us to weigh the evidence or to determine the credibility of the witnesses. The verdict of a jury must be sustained if there is substantial evidence, ... United States v. Rush, 840 F.2d 580, 581 (8th Cir.) ("it is the criminal episodes underlying the convictions, not the dates of conviction, that must be distinct to ... ...