Martin v. U.S.

• Decision Date: 28 April 1993
• Docket Number: No. 92-1284,92-1284
• Citation: 989 F.2d 271
• Parties: Terry Jon MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 271

989 F.2d 271

Terry Jon MARTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 92-1284.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1992.

Decided March 17, 1993.

Rehearing and Rehearing En Banc

Denied April 28, 1993.

Andrea K. George, Asst. Federal Public Defender, Minneapolis, MN, argued, for appellant.

Jon M. Hopeman, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and BOGUE, ^* Senior District Judge.

MAGILL, Circuit Judge.

Terry Jon Martin was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. app. § 1202(a)(1). Based upon his prior felony convictions, he received the mandatory fifteen-year sentence prescribed by the sentence enhancement provision of the statute. Martin brought a petition pursuant to 28 U.S.C. § 2255 to vacate his sentence, arguing that two of his prior convictions could not constitute predicate offenses for sentence enhancement purposes following the repeal and amendment of certain provisions of the federal firearms laws. We affirm the district court's ¹ decision that the general saving clause, 1 U.S.C. § 109, saved Martin's prosecution and sentence pursuant to § 1202 despite its repeal.

I.

Martin was arrested for possession of a firearm on February 18, 1986, and indicted for violation of 18 U.S.C. app. § 1202(a), which prohibited possession of a firearm by a convicted felon, on February 24, 1986. As a basis for the charge and the fifteen-year sentence sought, the indictment listed four prior felony convictions: simple robbery (Minnesota, 1967); burglary (Minnesota, 1972); burglary (Minnesota, 1977); and burglary with aggravation (Iowa, 1977). After an unsuccessful interlocutory appeal, Martin pled guilty to the charge on January 25, 1988. On February 23, 1988, the district court sentenced Martin to fifteen years imprisonment pursuant to § 1202(a).

On November 23, 1990, Martin filed a motion under 28 U.S.C. § 2255 asserting that he should have been sentenced pursuant to 18 U.S.C. § 922(g) and § 924(e) rather than 18 U.S.C. app. § 1202(a), which had been repealed before his plea and sentencing. Under the new definition of "conviction" applicable to § 924(e), restoration of Martin's civil rights for the 1967 and 1972 Minnesota convictions made them ineligible for the sentence enhancement provision. The district court initially granted his motion, but then reversed itself and denied Martin's petition for habeas relief. This appeal followed.

II.

Originally, federal firearms laws with respect to convicted felons appeared in two separate statutes, 18 U.S.C. app. § 1202 and 18 U.S.C. § 922. Section 1202(a) prohibited the receipt, possession, or transportation of a firearm by a convicted felon. Section 922(g) and (h) proscribed the shipping, transportation, or receipt of a firearm by a convicted felon. Under Supreme Court precedent, "convicted felon" was defined according to federal law. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983).

There is no question that Martin was eligible for the fifteen-year sentence he received under 18 U.S.C. app. § 1202(a), the law in effect when he committed the offense and was charged. This statute provided:

Any person who--

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony,

....

and ... who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

18 U.S.C. app. § 1202(a).

The statute specifically stated that it did not apply to "any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm." 18 U.S.C. app § 1203(2). No exception existed, however, for state expunctions of criminal convictions or for a state's restoration of the individual's civil rights. Thus, at least prior to May 19, 1986, once convicted, Martin belonged to the general class of convicted felons prohibited from possessing a firearm and, because he had four prior felony burglary convictions, was subject to the fifteen-year minimum sentence.

On May 19, 1986, Congress passed the Firearm Owners Protection Act (FOPA), Pub.L. No. 99-308, 100 Stat. 449 (currently codified at 18 U.S.C. §§ 921, et seq.), which modified the law in two ways relevant to this case. First, it repealed § 1202 effective 180 days after enactment, and combined all restrictions relating to firearms and convicted felons into one section of the United States Code. Second, Congress amended the definition of "conviction," for purposes of the firearms statute, to read:

What constitutes a conviction ... shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20). This amendment also took effect 180 days after enactment.

Martin claims that because he did not plead guilty until after the amendments took effect, he may not be sentenced under § 1202 and should reap the benefit of the amended definition of conviction. Because his civil rights have been restored with respect to two of his prior convictions, he contends that he does not have the three prior "convictions" required for the fifteen-year sentence under amended § 921(a)(20) and § 924(e).

The government contends that because the prosecution began before the repeal of § 1202, the general saving clause, 1 U.S.C. § 109, should act to save the prosecution under § 1202 despite its repeal. Moreover, the government claims that Congress demonstrated a specific intent that the new definition of conviction contained in § 921(a)(20) not apply to pending cases.

We must then decide whether Martin's prosecution could continue under § 1202(a) after its repeal, in which case he would not receive the benefit of the new definition of conviction, ² or whether he must be prosecuted under amended § 922, and sentenced under § 924(e), and thus be subject to the new definition of conviction.

The general saving clause, 1 U.S.C. § 109, provides:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

It was enacted to overcome the common law rule that all pending prosecutions abate when a criminal statute is repealed. Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 2536, 41 L.Ed.2d 383 (1974). The government contends that, as the FOPA both repealed § 1202 and released criminal penalties existing under § 1202 through the new definition of conviction found in amended § 921(a)(20), convictions pending under § 1202 should be allowed to continue.

In order to escape the reach of the general saving clause, Martin first argues that the FOPA did not repeal § 1202(a), but merely recodified its terms in §§ 921, et seq. Thus, he contends, the changes were merely amendments, not covered by the general saving clause. Although we believe that FOPA did repeal § 1202, ³ we need not resolve the question whether Congress' actions constituted a repeal or an amendment, because the general saving clause applies to both. See, e.g., United States v. Stillwell, 854 F.2d 1045, 1048 (7th Cir.1988); United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir.1987); United States v. Breier, 813 F.2d 212, 215 (9th Cir.1987); United States v. Mechem, 509 F.2d 1193, 1194 n. 3 (10th Cir.1975); Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 2536, 41 L.Ed.2d 383 (1974) (general saving clause applies to repeals followed by reenactments).

Having determined that the changes are such that the general saving clause could apply, we must determine whether the changes wrought in FOPA are such that the general saving clause does apply. Under Marrero, the Supreme Court's most recent analysis of the general saving clause, the determinative question is whether the repeal of § 1202, coupled with the new definition of conviction under § 921(a)(20), releases or extinguishes a "penalty, forfeiture or liability" and is thus saved by § 109. The court must determine first whether the contents of the old provision constituted a "penalty, forfeiture or liability." Id. at 660, 94 S.Ct. at 2536. According to the Supreme Court, "those terms 'were used by Congress to include all forms of punishment for crime.' " Id. at 661, 94 S.Ct. at 2537 (citing United States v. Reisinger, 128 U.S. 398, 402-03, 9 S.Ct. 99, 101, 32 L.Ed. 480 (1888)). Next the court must determine whether the repeal released or extinguished the penalty, as "the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense." Marrero, 417 U.S. at 661, 94 S.Ct. at 2537.

We believe that the changes in FOPA had the effect of removing a punishment existing under § 1202, and thus, absent more, pending prosecutions under § 1202 are saved by the operation of § 109. The fifteen-year sentence applicable to persons in Martin's position under § 1202 certainly...