U.S. v. Bell, No. 95-1266

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, EASTERBROOK, and EVANS; TERENCE T. EVANS
Citation70 F.3d 495
Docket NumberNo. 95-1266
Decision Date17 November 1995
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. BELL, Defendant-Appellant.

Page 495

70 F.3d 495
UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth L. BELL, Defendant-Appellant.
No. 95-1266.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 25, 1995.
Decided Nov. 17, 1995.

James E. Beckman (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Page 496

Jon G. Noll, Jeffrey T. Page (argued), Springfield, IL, for Defendant-Appellant.

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

This appeal causes us to consider the constitutionality of 18 U.S.C. Sec. 922(g)(1) in light of the Supreme Court's recent decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, decided on April 26, 1995, the Court determined that another subsection of Sec. 922--Sec. 922(q), the Gun-Free School Zones Act--exceeded Congress' Commerce Clause authority.

In May 1994, Kenneth L. Bell was charged with possession of a firearm by a felon, in violation of Sec. 922(g)(1). He entered a conditional guilty plea to the charge, reserving his right to withdraw the plea if it was determined that he would receive an enhanced sentence for being an armed career criminal. Ultimately, in fact, he was sentenced as an armed career criminal, but he did not move to withdraw his guilty plea. 1 He faced a mandatory minimum sentence of 180 months. However, the government moved for a downward departure, and Mr. Bell was sentenced to 156 months in prison. Judgment was entered on January 31, 1995, approximately three months before the Lopez decision was entered.

The factual basis for the plea was that an undercover government agent attempted to purchase a Marlin 30/30 caliber lever-action rifle from Mr. Bell. After some bartering, the agreed price was $125, which the agent paid to Mr. Bell, who in turn placed the rifle in the agent's vehicle. The rifle had traveled in interstate commerce. The weapon had also been test-fired and was found to be functioning properly.

Because Mr. Bell entered a guilty plea and raises his challenge to the constitutionality of Sec. 922(g)(1) for the first time on appeal, we must consider whether the issue is properly before us.

Even very serious issues in criminal proceedings can, of course, be forfeited or waived. The principles of forfeiture and waiver are separate, as the court pointed out in United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993):

Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right."

Mr. Bell's problem is waiver. He entered a guilty plea without preserving the present issue. By so doing, did he waive his right to raise the issue?

Ordinarily, a guilty plea is a waiver of violations, even constitutional violations "not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established." Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975). In United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the Court further closed the door to attacks on guilty pleas, ruling in that case that a guilty plea foreclosed challenges based on double jeopardy. However, in Broce, the Court retained an exception to the doctrine. The exception is the one established in Menna and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In situations in which the government is precluded from "haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." Broce, at 575, 109 S.Ct. at 765, quoting Menna, at 62, 96 S.Ct. at 242.

We have recognized the exception to the principle that a knowing and voluntary guilty plea bars a subsequent challenge based on constitutional deprivations. The exception exists if the defect is jurisdictional,

Page 497

i.e., the "court has no power to enter the conviction." United States v. Seybold, 979 F.2d 582 (7th Cir.1992).

After Broce, other courts have continued to find that the claim that the applicable statute is unconstitutional is a jurisdictional claim which is not waived by the guilty plea. United States v. Montilla, 870 F.2d 549 (9th Cir.1989); Marzano v. Kincheloe, 915 F.2d 549 (9th Cir.1990) (collateral attack under 28 U.S.C. Sec. 2254); United States v. Palacios-Casquete, 55 F.3d 557 (11th Cir.1995); United States v. Skinner, 25 F.3d 1314 (6th Cir.1994); United States v. Knowles, 29 F.3d 947 (5th Cir.1994). However, in United States v. Baucum, 66 F.3d 362...

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79 practice notes
  • Doe v. Doe, No. 3:95cv2722 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • June 19, 1996
    ...75 F.3d 40 (1st Cir. 1996); U.S. v. Rambo, 74 F.3d 948 (9th Cir. 1996); U.S. v. Sorrentino, 72 F.3d 294 (2d Cir. 1995); U.S. v. Bell, 70 F.3d 495 (7th Cir.1995); U.S. v. Hinton, 69 F.3d 534, 1995 WL 623876 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1026, 134 L.Ed.2d 104 (1996); U......
  • U.S. v. Jones, No. 09–1556.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 15, 2011
    ...563 (10th Cir.2000) (finding that jurisdictional element of section 922(k) satisfies Lopez, and collecting cases); United States v. Bell, 70 F.3d 495 (7th Cir.1995) (similarly concluding that jurisdictional element of § 922(g)(1) also satisfies Lopez ). But Jones was not charged with posses......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...Defendants have used it as a basis for challenges to various statutes. Almost invariably those challenges fail." United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995) (citations omitted). 3 Page 686 2. Ex Post Facto/Fifth Amendment We reject Trupin's argument that § 2315 as amended in 1986......
  • U.S. v. Rybar, No. 95-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1996
    ...within Congress' power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, "[i]t appears that United States v. Lopez has raised many false hopes," and that challen......
  • Request a trial to view additional results
79 cases
  • Doe v. Doe, No. 3:95cv2722 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • June 19, 1996
    ...75 F.3d 40 (1st Cir. 1996); U.S. v. Rambo, 74 F.3d 948 (9th Cir. 1996); U.S. v. Sorrentino, 72 F.3d 294 (2d Cir. 1995); U.S. v. Bell, 70 F.3d 495 (7th Cir.1995); U.S. v. Hinton, 69 F.3d 534, 1995 WL 623876 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1026, 134 L.Ed.2d 104 (1996); U......
  • U.S. v. Jones, No. 09–1556.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 15, 2011
    ...563 (10th Cir.2000) (finding that jurisdictional element of section 922(k) satisfies Lopez, and collecting cases); United States v. Bell, 70 F.3d 495 (7th Cir.1995) (similarly concluding that jurisdictional element of § 922(g)(1) also satisfies Lopez ). But Jones was not charged with posses......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...Defendants have used it as a basis for challenges to various statutes. Almost invariably those challenges fail." United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995) (citations omitted). 3 Page 686 2. Ex Post Facto/Fifth Amendment We reject Trupin's argument that § 2315 as amended in 1986......
  • U.S. v. Rybar, No. 95-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1996
    ...within Congress' power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, "[i]t appears that United States v. Lopez has raised many false hopes," and that challen......
  • Request a trial to view additional results

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