U.S. v. Taylor

• Decision Date: 21 September 1989
• Docket Number: No. 88-6224,88-6224
• Citation: 882 F.2d 1018
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Henry TAYLOR a/k/a Baldy Briley a/k/a William Briley Taylor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1018

882 F.2d 1018

UNITED STATES of America, Plaintiff-Appellee, v. William Henry TAYLOR a/k/a Baldy Briley a/k/a William Briley

Taylor, Defendant-Appellant.

No. 88-6224.

United States Court of Appeals, Sixth Circuit.

Argued May 15, 1989.

Decided Aug. 9, 1989.

As Modified on Denial of Rehearing Sept. 11, 1989.

Rehearing and Rehearing En Banc Denied Sept. 21, 1989.

Steve Parker, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

April R. Ferguson, Asst. Federal Public Defender (argued), Office of the Federal Public Defender, Memphis, Tenn., for defendant-appellant.

Before MERRITT and KRUPANSKY, Circuit Judges, and HILLMAN, Chief District Judge. ^*

MERRITT, Circuit Judge.

William Henry Taylor appeals both his conviction and sentence in this prosecution for possessing, as a felon, firearms which had been shipped and transported in interstate commerce, an act criminalized by the Armed Career Criminal Act. 18 U.S.C. Sec. 922(g). ¹ Most of the issues raised in this appeal involve the application of the Act's mandatory fifteen-year sentence for a defendant convicted under Sec. 922(g) and having at least three prior convictions for violent felonies. ² After careful consideration Before the events from which this prosecution arises took place, Taylor had been convicted of six Tennessee felonies: one conviction for serving as accessory after the fact to armed robbery (on May 1, 1973); four burglary convictions (all on August 8, 1974); and one conviction for "felonious assault" (on June 14, 1985).

of all Taylor's assignments of error, we have concluded that the judgment below should be affirmed.

On February 27, 1988, Deputy Ricky Blair of the Haywood County Sheriff's Department arrived at 341 Margin Street, Brownsville, Tennessee, with a warrant to arrest Taylor. Taylor was there, and submitted to his arrest, but requested that he be permitted to change into clean clothes before departing. Blair acceded, and accompanied Taylor into the house to keep him under supervision. While inside, he noted on the wall of the bedroom in which Taylor was changing a gunrack holding a shotgun and several rifles. He reported this discovery to his supervisor, who in turn informed Special Agent Bart McEntire of the Federal Bureau of Alcohol, Tobacco and Firearms.

McEntire obtained a search warrant for 341 Margin Street. On March 4, 1988 McEntire, with another federal agent and several state agents including Blair, served the warrant. Taylor's "girlfriend," Julie Douglas, admitted them, and Taylor frankly pointed out the gunrack. Taylor refused, however, to state that the guns were his. The search of the house produced a number of firearms and a receipt signed by Joal Perry stating that he had sold a gun to Taylor. It also produced a good deal of circumstantial evidence that was introduced at trial to show that the 341 Margin Street house was Taylor's home and that the room with the gunrack was his bedroom.

The federal officers arrested Taylor. He was detained as a danger to the community. He was first indicted on one count only: possessing firearms as a convicted felon, in violation of Sec. 922(g). This indictment, issued on March 8, 1988, listed a number of firearms and charged that Taylor owned them on March 4, 1988. R. 1.

On April 18, 1988 the Grand Jury issued the first of two superseding indictments. R. 13. This indictment repeated the count stated in the original indictment but added allegations that Taylor had been convicted of the six Tennessee felonies mentioned above. The new indictment additionally cited 18 U.S.C. Sec. 924(e)(1), giving Taylor notice that the Government intended to seek the ACCA's mandatory fifteen-year sentence.

In May of 1988 the charge was tried to a jury. At that time the rule in the Sixth Circuit was that the predicate prior felonies on which Sec. 924(e) sentencing depends must be proven to the jury. United States v. Brewer, 841 F.2d 667 (6th Cir.1988) (Brewer I ), rev'd, 853 F.2d 1319 (6th Cir.) (Brewer II ), cert. denied, --- U.S. ----, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988) and 109 S.Ct. 1142 (1989) (two petitions). The trial was conducted in accordance with Brewer I, with Taylor's prior criminal record being submitted to the jury. The jury was unable to reach a verdict, the District Judge declared a mistrial, and the case was set down for retrial. R. 32.

On June 30, 1988, the Grand Jury issued a second superseding indictment. R. 37a. This document charges Taylor with two discrete acts of criminal possession of a firearm: the originally charged act of March 4, 1988 and a second act of possession, this time of a single weapon not included in the original count, occurring on or about January 1, 1987. Under each count the new indictment reiterated Taylor's six Tennessee felony convictions.

Taylor pleaded not guilty to both counts in the second superseding indictment and stood trial in August of 1988. Just a few Taylor appeals both his conviction and his sentence on a number of grounds which we believe are most intelligibly organized into five sets of issues. These are:

                days before trial, the Sixth Circuit reversed its decision in Brewer I, 841 F.2d 667, deciding in the same case that the three prior felonies upon which the enhanced sentence were sought should be proven to the bench at the sentencing stage.  Brewer II, 853 F.2d 1319.    Over Taylor's objection, the District Judge removed from the jury consideration of the Government's claim that Taylor had been convicted of three violent felonies before his acts of firearms possession.  The jury returned verdicts of guilty on both counts.  Relying on the enhanced penalty provision of Sec. 924(e)(1), and finding that all six of Taylor's prior felony convictions counted as predicate violent felonies under that section of the ACCA, the District Court sentenced Taylor to two fifteen-year sentences, to run concurrently.  Taylor is currently serving these sentences
                

1. Attacks on counting the burglary convictions under Sec. 924(e).

2. Attacks on counting the felonious assault conviction under Sec. 924(e).

3. Attacks on counting the accessory after the fact to armed robbery conviction under Sec. 924(e).

4. Attacks affecting all of the prior convictions under Sec. 924(e).

5. Attacks on various rulings at trial.

We find below that the District Court improperly counted two of Taylor's burglary convictions in applying Sec. 924(e), but that the remaining two burglary convictions were properly considered by the court for sentence-enhancement purposes (Part I). We also find that Taylor's felonious assault conviction was properly considered (Part II). We further find that the attacks affecting all the prior convictions are without merit (Part III). Thus, we hold that three of Taylor's convictions were properly counted as violent felonies to satisfy the requirements of Sec. 924(e) and that no other defect in his sentencing appears.

Given these holdings, we conclude that we need not reach Taylor's challenge to the consideration of his conviction for serving as an accessory after the fact to armed robbery. Taylor does not argue that the ACCA prohibits consideration of the same three prior felony convictions at sentencing on two or more distinct Sec. 922(g) offenses. We consider any such argument to have been waived, and, relying on that waiver, we hold that the assault conviction and the two burglary convictions are sufficient to support his sentence under both counts of his indictment. For this reason, we need not examine his conviction for serving as an accessory to armed robbery, and we decline to do so (Part II).

Finally, we hold that no reversible error occurred at Taylor's trial (Part IV). As a result of all these rulings, we affirm both Taylor's conviction and his sentence.

I. SENTENCING: CHALLENGES TO BURGLARY CONVICTIONS

Taylor made two efforts to remove his burglary convictions from the purview of the sentencing court. Both efforts failed, and he appeals. First, he claims that his second--and third-degree burglary convictions do not fall within the scope of the term "burglary" as it is used in Sec. 924(e)(2)(B)(ii) and are therefore not "violent felonies" within the meaning of the Act. Second, he argues that only two of his four burglary convictions should have been counted towards the three previous convictions required by Sec. 924(e). We reject the former challenge and sustain the latter.

A. Definition of Burglary

Taylor argues that his convictions under Tennessee's second-degree burglary statute do not count as "violent felonies" within the scope of Sec. 924(e)(1). This is the most difficult of the issues Taylor raises on this appeal.

For ease of reference we repeat the relevant portions of the ACCA's definition of a "violent felony":

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, ... that--

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

(ii) is burglary, arson, 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)(2)(B). Taylor argues that his burglary convictions do not meet the meaning of the term "burglary" in Sec. 924(e)(2)(B)(ii) because, as he asserts, we must construe that term to encompass nothing more than common-law burglary. We reject his argument, and hold that his convictions fall within the meaning of the term "burglary" as it is used in the ACCA. We therefore do not need to decide whether they also "involve[ ] conduct that presents a serious potential risk of physical harm to another"--an alternate criterion of Sec. 924(e)(2)(B)(ii)--or whether they have "as an element the use, attempted use, or threatened use of physical force against the person of another" and therefore satisfy Sec. 924(e)(2)(B)(i) instead.

Before construing the statute to...