U.S. v. Brewer, s. 86-6155

• Decision Date: 01 August 1988
• Docket Number: Nos. 86-6155,s. 86-6155
• Citation: 853 F.2d 1319
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Lee BREWER, (86-6155), James Phillip Brewer, (86-6156), Giles Erwin Ferguson, (86-6157), Defendants-Appellants. to 86-6157.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1319

853 F.2d 1319

57 USLW 2146

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Lee BREWER, (86-6155), James Phillip Brewer (86-6156), Giles Erwin Ferguson, (86-6157) Defendants-Appellants.

Nos. 86-6155 to 86-6157.

United States Court of Appeals Sixth Circuit.

Argued July 27, 1987.

Decided Aug. 1, 1988.

James W. Price, Jr. (argued), Nashville, Tenn. (Court-appointed), for Curtis Lee Brewer.

John T. Hennis (argued), Chattanooga, Tenn. (Court-appointed), for James Phillip Brewer.

Timothy A. Deere (argued), Chattanooga, Tenn. (Court-appointed), for Giles Erwin Ferguson.

John W. Gill, U.S. Atty., John C. Cook, John P. MacCoon (argued), Chattanooga, Tenn., for U.S. in No. 86-6155.

John W. Gill, U.S. Atty., John P. MacCoon (argued), Chattanooga, Tenn., for U.S. in Nos. 86-6156 and 86-6157.

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

KRUPANSKY, Circuit Judge.

On rehearing. Defendants-appellants Curtis Lee Brewer (Curtis Brewer), James Phillip Brewer (James Brewer), and Giles Erwin Ferguson (Ferguson), appealed their respective jury convictions for unlawful possession of firearms by convicted felons. Defendants James Brewer and Ferguson also appealed their enhanced sentences imposed pursuant to the Armed Career Criminal Act of 1984 (the ACCA), 18 U.S.C.App. Sec. 1202, 841 F.2d 667.

The defendants' convictions resulted from the discovery of a Ruger rifle and homemade silencer (along with numerous burglar tools) in the trunk of a rented automobile in which the defendants and one other passenger, Joe McQuiston (McQuiston), were traveling in and about the city of Chattanooga, Tennessee. An experienced police officer, Del Thomasson (Thomasson), stopped and detained the motor vehicle in question for a traffic violation. During his conversation with the driver, Thomasson observed a book of police radio frequencies, flashlights, gloves, and an object which appeared to be a police radio scanner inside the automobile. Officer Herbert Keedy detained the vehicle while Thomasson departed the scene to obtain a search warrant. Thereafter, Keedy radioed Thomasson that jumper wires (which may be used to bypass burglar alarms) were visible inside the vehicle. Upon the joint observations of the police officers, Thomasson received a warrant to search the vehicle. When he radioed Keedy that he had received the warrant, Keedy searched the trunk of the automobile and found burglar tools, a rifle, and a silencer. At trial, McQuiston, who had confessed and had pleaded guilty, testified that the four men were planning to burglarize a department store in Fort Oglethorpe, Georgia and that all four collectively possessed the rifle and silencer as part of their burglar tools (to shoot out burglar alarms). James Brewer's wife identified the rifle and silencer as having been used previously by her husband in the commission of burglaries. McQuiston also noted that he had seen the rifle and silencer in the possession of the Brewers on a previous occasion. The evidence was uncontroverted that the rifle and silencer were functional, unregistered, and had traveled in interstate commerce, and that the defendants were convicted felons.

Defendant Curtis Brewer was sentenced to two and six years of imprisonment, to be served consecutively. Defendant Ferguson was sentenced to be incarcerated for 15 and 10 years to be served concurrently and James Brewer was sentenced to imprisonment for 20 and 10 years to be served concurrently, pursuant to the ACCA. All defendants appealed to this court and their appeals have been consolidated for disposition.

This appellate review of the ACCA presents an issue of first impression in this circuit, and challenges this court to determine if the government is specifically required to charge in the indictment and prove at trial a defendant's prior convictions pursuant to the mandate of the ACCA. Under that section, a felon who possesses firearms may be sentenced to a maximum of two years unless he has previously been convicted for committing three prior felonies. Three-time recidivists are subject to imprisonment for a period of not less than fifteen years without eligibility for parole. ¹

In the instant case, the prior convictions of the vulnerable defendants were not specifically charged or proved during trial. However, on July 4, 1986, prior to the commencement of their trial on the charges of the indictment, they were each formally noticed that the government would seek enhanced sentencing pursuant to 18 U.S.C.App. Sec. 1202 (ACCA). The notice which preceded the September 9 trial by more than a month listed in detail the previous convictions upon which the ACCA charge was anchored. ² Defendants were convicted subsequent to a jury trial. At their respective presentencing hearings neither the defendant Ferguson nor defendant Brewer challenged the government's proof and conceded their respective three prior felony convictions which mandated an enhanced sentence. ³

Thus, any demurrer to the enhanced sentences in the instant case could not be predicated upon insufficient or vague notice-related due process concerns. Appellants had received proper notice and were not prejudiced by the government's use of the enhanced sentencing procedure. ⁴

Accordingly, because this court believes that Congress did not intend the ACCA to create a separate offense mandating the government to specifically plead in its indictment and prove at the trial in chief the recidivism that triggers the enhanced sentencing statute, and because this court believes that the Supreme Court decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), is alien to the resolution of the issue joined in the instant case, the decision of the district court is AFFIRMED.

Initially, this court is prompted to arrive at this conclusion by a review of the congressional history which reflects upon the intent that embraced the promulgation of the ACCA.

To support its interpretation of the Congress' intent when it enacted the ACCA, the dissent has cited to S.Rep. No. 190, 98th Cong., 1st Sess. at 3 (1983) and has correctly quoted the statement attributed to "drafters" of the legislation during the 1983 Committee hearings announcing that "The bill creates a new Federal crime of carrying a firearm ... where a defendant has two prior felony convictions for robbery or burglary." Appellants' characterization of the motivation of Congress in 1983 when it considered the adoption of the ACCA is not entirely unwarranted. Indeed, the 1983 hearings accorded consideration to the feasibility of bifurcating the trial of an accused on charged substantive offenses from the trial of his recidivist career to avoid the acknowledged highly prejudicial effects inherent in proof of recidivism during the trial in chief. Armed Career Criminal Act of 1983: Hearing on S. 52 Before the Committee on the Judiciary of the United States Senate, 98th Cong., 1st Sess. at 20 (1983) (statements of Senator Specter and James Knapp, Deputy Assistant Attorney General); S.Rep. No. 190, 98th Cong., 1st Sess. at 4.

However, the legislation as originally introduced in both branches of the Congress in 1983 was abandoned and its demise also laid to rest the charges that the ACCA would create a separate crime, rather than an enhancement provision.

In describing its decision to abandon the 1983 version of the recidivist provisions of the ACCA, the House Report which accompanied substitute bill H.R. 6248, 98th Cong. 2d Sess. (1984) announced, in certain terms, its underlying motivation for the substitute legislation:

In "enhancing " this offense [Sec. 1202(a) ] with H.R. 1627-type sanctions, if the defendant has been convicted three times of robbery or burglary, we are "enhancing " an existing Federal crime, which would alleviate many of the problems associated with H.R. 1627 such as the issue of a local D.A. veto or the difficulties encountered by Federal courts in applying State robbery and burglary laws in Federal prosecutions.

H.R.Rep. No. 1073, 98th Cong. 2d Sess. 5, reprinted in 1984, U.S.CODE CONG. & ADMIN.NEWS at 3182, 3665 (emphasis added).

Any lingering doubts as to the congressional intention concerning the 1984 substitute legislation were dispelled by congressional expressions from the political leadership in both the House and Senate.

Substitute bill--H.R. 6248, 98th Cong., 2d Sess. 1984--was adopted by the House Judiciary Committee and it was this legislation that formed the basis for the ACCA as finally enacted into law. Here again, the approach taken by H.R. 6248 was clear from the record of proceedings which explained:

Under this approach, if the local authorities arrest a three-time loser in possession of a gun ... and can convince the U.S. Attorney that circumstances warrant prosecution under the enhanced penalty provision of this bill, the mandatory 15-year penalty is available.

H.R.Rep. No. 1073 at 5, U.S.Code Cong. & Admin.News, 1984, 3665 (emphasis added).

Similar sentiments were voiced during the floor debates by Representative Hughes, the principal sponsor of the substitute 1984 legislation who stated:

H.R. 6248 which we have before us is another, and, I believe, useful approach to this problem. This bill would enhance the sanctions of 18 U.S.C. Section 1202(a) with a 15-year minimum sentence if the defendant has been convicted three times of felonies for robbery or burglary.

130 Cong.Rec.H. 10550 (daily ed. Oct. 1, 1984) (statement of Rep. Hughes) (emphasis added).

and Representative Sawyer who stated:

The proposal before us today is crafted to avoid Federal prosecution of State burglary or robbery charges. This proposal does not even expand Federal criminal law. H.R. 6248 takes an existing gun possession statute and enhances the penalty for any violation by a person having been previously convicted three times for armed burglary and robbery.

H.R. 6248 would apply the enhanced penalties of a...