U.S.A v. Coleman

Decision Date16 June 2010
Docket NumberNo. 09-30545.,09-30545.
Citation609 F.3d 699
PartiesUNITED STATES of America, Plaintiff-Appellee,v.James Ray COLEMAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

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Josette Louise Cassiere, Carol Mignonne Griffing, Asst. U.S. Attorneys, Shreveport, LA, for Plaintiff-Appellee.

Billy James Guin, Jr., Rountree & Guin, Shreveport, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD, STEWART and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

James Ray Coleman was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He sought dismissal on the ground that his underlying felony conviction was not a valid predicate offense. The underlying felony conviction was pursuant to 18 U.S.C. § 371 for conspiracy to pirate encrypted satellite signals and to infringe a copyright. Coleman alleged that the conviction should fall within the 18 U.S.C. § 921(a)(20)(A) exception to § 922(g)(1) for offenses relating to the regulation of business practices. The district court ruled that Coleman's prior conviction did not fall within the § 921(a)(20)(A) exception and that the exception was not unconstitutionally vague, and denied the motion to dismiss. Coleman then conditionally pleaded guilty, and now appeals the denial of the motion to dismiss. He also appeals the assignment of a four-point increase to his offense level for “possession of a firearm in connection with another felony offense” for stalking under La.Rev.Stat. § 14:40.2. We AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY
A. Factual Background

Frankie Manley called 911 to report that James Ray Coleman was on his way to her residence to kill her, her adult granddaughter, and himself. Deputies from the East Carroll Parish Sheriff's Office responded to the call and, upon arrival, found a visibly intoxicated Coleman at his shop across the street from the Manley residence. When asked if he “had anything on him,” it was discovered that he had a pistol in his waistband.

Manley explained to the deputies that Coleman had been living at her residence, but that she had asked him to leave three days earlier because of his drinking problem. Manley told officers that Coleman called her several times a day begging her to allow him to return and threatening her if she did not. He did this for three days straight, and became upset each time Manley refused to allow him to return. He became belligerent and threatened her and her granddaughter. Manley believed her life was in danger and was so upset that she could not write a statement. Coleman was arrested for felonious stalking under Louisiana law.

B. Procedural History

Coleman was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Coleman filed a Motion to Dismiss the indictment, alleging that the underlying felony conviction was not a valid predicate offense because it fell within the 18 U.S.C. § 921(a)(20)(A) exception to § 922(g)(1) for offenses relating to the regulation of business practices, and that Coleman was therefore not prohibited from possessing a firearm under § 922(g)(1). Coleman's underlying felony conviction was a 1994 conviction under 18 U.S.C. § 371 for conspiracy to manufacture or distribute equipment for decrypting satellite cable signals in violation of the Communications Act of 1934, 47 U.S.C. § 605(e)(4), and to willfully infringe a copyright in violation of the Criminal Copyright Infringement Statute, 17 U.S.C. § 506(A). See United States v. Coleman, No. 1:92-10016-3 (W.D.La. Feb. 4, 2009).

The district court denied the Motion to Dismiss. Relying on Dreher v. United States, 115 F.3d 330, 332 (5th Cir.1997), the district court found that the offense of conspiracy pursuant to § 371 is not excepted from the scope of the felon in possession statute by § 921(a)(20)(A). The district court also stated that even if it were to consider the target offenses of the conspiracy, Coleman's prior conviction would still qualify as a predicate felony for purposes of the firearm statute because theft of copyright-protected satellite programming was not an unfair business practice. In addition, the court rejected Coleman's argument that the statute was unconstitutionally vague. Coleman then entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to dismiss the indictment.

At sentencing, the Presentence Investigation Report (PSR) calculated Coleman's offense level at 15 with a criminal history category of I, yielding a Guidelines sentencing range of 18 to 24 months. After hearing testimony from an East Carroll Parish Sheriff's Deputy who participated in Coleman's arrest, the district court concluded that Coleman had possessed the firearm in connection with another felony offense-the Louisiana offense of felonious stalking-and increased his offense level by four. Coleman objected to this increase and the court overruled his objection. The court then imposed a 21-month term of imprisonment to be followed by a three-year term of supervised release. Coleman did not object to the reasonableness of his sentence.

II. DISCUSSION
A. Evaluating a Predicate Offense under the Business Practices Exception

Coleman first asserts that the district court erred by denying his Motion to Dismiss the indictment. He claims that his § 371 conviction for conspiracy to violate § 605(e)(4) and § 506(a) falls within the “business practices exception” created by § 921(a)(20)(A) for offenses “pertaining to antitrust violations, unfair trade practices, restraint of trade, or other similar offenses relating to the regulation of business practices.” Because Coleman's motion to dismiss the indictment was based on the interpretation of a federal statute, this court reviews the denial of the motion de novo. See United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir.2003).

The “felon in possession of a firearm” statute, 18 U.S.C. § 922(g)(1), makes it a crime “for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ...” to possess a firearm or ammunition which has traveled in interstate or foreign commerce. The “business practices exception” to § 922(g)(1), set out in 18 U.S.C. § 921(a)(20), excludes from the definition of a “crime punishable by imprisonment for a term exceeding one year ... any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices....” Thus, a felon in possession of a firearm who has been convicted of one of the types of violations itemized in § 921(a)(20)(A) cannot be found guilty under § 922(g)(1) on the basis of that conviction.

In Dreher v. United States, this court applied a framework for evaluating whether a prior felony conviction falls within the § 921(a)(20)(A) business practices exception. 115 F.3d at 330. The defendant had been convicted of conspiracy to commit mail fraud and mail fraud in violation of 18 U.S.C. §§ 371, 1341 and 1342. Id. at 331. He petitioned for a declaratory judgment that he was not a convicted felon under § 922(g)(1) because the predicate offenses fell within the business practices exception. Id. The defendant argued that the court should evaluate the conduct underlying the convictions-billing for services not rendered. The Dreher court, however, reasoned that “the plain meaning of the term ‘offenses' in the context of the statute is the charged violation of law, not the facts underlying the violation of law.” Id. at 332. The court evaluated whether the elements that the Government was required to prove under 18 U.S.C. §§ 371 and 1341 depended “on whether they have an effect upon competition.”1 Id. at 332-33. It analyzed the statutes as follows:

The “offenses” (or violations of law) of which Dreher was convicted are conspiracy to commit mail fraud and mail fraud, pursuant to 18 U.S.C. §§ 371, 1341. To prove conspiracy under § 371, the government must show: (1) an agreement between two or more persons to commit an unlawful act and (2) an overt act by one of the conspirators in furtherance of the agreement. See United States v. Schmick, 904 F.2d 936, 941 (5th Cir.1990). To convict under § 1341, the government must prove (1) a scheme to defraud; (2) intent to defraud; and (3) use of the mails in furtherance of the scheme. See United States v. Nguyen, 28 F.3d 477, 481 (5th Cir.1994).
Id. at 332. The court then held that [b]ecause violations of §§ 371 & 1341 in no way depend on whether they have an effect upon competition, they are not ‘offenses' that are excluded from the § 921(a)(20) definition of ‘crimes punishable by imprisonment for a term exceeding one year.’ Id. at 333.

The defendant in Dreher had been convicted of both conspiracy to commit mail fraud under § 371 and mail fraud under § 1341. Id. at 332. Both or either of those convictions could have potentially functioned as predicate offenses under § 922(g)(1). Consequently, the court's evaluation of the elements under both § 371 and § 1341 does not necessarily clarify whether, in cases such as the present one, the court must evaluate the elements of the offense underlying a conspiracy conviction where there is no conviction for the underlying offense. Additionally, although Dreher specifically rejected any examination of the facts underlying the charged crime, it did not clearly address whether the court might examine the violation of the law that is the target of the charged conspiracy.

The Government asserts that, consistent with the categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the district court properly evaluated only the elements of the charged offense for the prior conviction to determine whether an offense falls within the business practices exception. The Government claims...

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