U.S. v. Craveiro, 89-2043

• Decision Date: 09 May 1990
• Docket Number: No. 89-2043,89-2043
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Joseph M. CRAVEIRO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 260

907 F.2d 260

UNITED STATES of America, Plaintiff, Appellee, v. Joseph M. CRAVEIRO, Defendant, Appellant.

No. 89-2043.

United States Court of Appeals, First Circuit.

Heard May 9, 1990.

Decided July 6, 1990.

Arthur R. Silen, with whom Serra, Jordon and Carbone, P.A., Boston, Mass., were on brief, for defendant, appellant.

Seymour Posner, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for plaintiff, appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Senior Circuit Judge.

Joseph M. Craveiro appeals the enhanced sentence imposed on him following his conviction for violating 18 U.S.C. Sec. 922(g), which prohibits a convicted felon from possessing a gun. ¹ After Craveiro was tried and convicted, but before he was sentenced, the government filed an "Information Charging Prior Offenses," notifying the court that he had been convicted previously of two violent felonies and a serious drug offense, and was therefore subject to an enhanced prison term under the sentence enhancement provision of the Armed Career Criminal Act (the ACCA), codified at 18 U.S.C. Sec. 924(e)(1). ²

The government filed the information after discovering a slip opinion of this court holding that a conviction under Massachusetts law for breaking and entering qualified as a predicate offense for sentence enhancement under the ACCA. United States v. Patterson, No. 88-1497, slip op. (1st Cir. April 26, 1989) (withdrawn for At Craveiro's sentencing hearing on October 17, 1989, the judge ruled that the Rhode Island breaking and entering felony was sufficiently analogous to the statute in Patterson to constitute a predicate offense and sentenced defendant to seventeen years imprisonment, consecutive to a federal sentence he was then serving. Craveiro contends that the government's failure to apprise him at the time of his indictment for illegal gun possession that it would seek an enhanced sentence based on his previous convictions violated his statutory and constitutional rights. He does not contest the court's finding that he had three qualifying convictions.

                unrelated reason, May 17, 1989). 3   Craveiro had two previous convictions which were clearly ACCA offenses (one for armed robbery in Massachusetts, another for conspiracy to distribute a controlled substance in Rhode Island).  In addition, he had a Rhode Island conviction for entering a dwelling with intent to commit larceny.  If the latter offense also constituted a violent felony under the ACCA, Craveiro would have the three prior convictions specified by statute and enhancement of his sentence would be mandatory
                

DISCUSSION

A. Statutory Argument

Craveiro first argues that the government's failure to notify him at the time of his indictment that it would seek application of the ACCA was contrary to the intent of Congress as to the procedural protections to be afforded a criminal defendant facing sentence enhancement. Craveiro characterizes the ACCA as one of a family of related federal statutes imposing increased sentences on recidivists. ⁴ Although the ACCA contains no reference to notification, the other statutes in this "family" expressly require written pre-trial or pre-plea notification of the prosecutor's intent to seek sentence enhancement. Craveiro contends that Congress intended to incorporate such a requirement into the ACCA. Since it did not, and since the legislative history contains no discussion about notification, he argues that the statute is ambiguous. Therefore, he urges us to apply the rule of statutory construction that ambiguity in a penal statute should be resolved in favor of lenity and interpret the ACCA to require pre-trial notification.

We reject this approach for three reasons. First, there is no language in the ACCA or in the statute's legislative history pertaining to notification requirements or procedures. Contrary to defendant's assertion, Congress's silence does not render the statute ambiguous. We believe that defendant "reads much into nothing." Albernaz v. United States, 450 U.S. 333, 341, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1980) (ambiguity is not to be assumed from legislative silence on the point at issue and where there is no ambiguity in a statute, the rule of lenity does not apply). As the government points out, in the absence of legislative history regarding prior notice, the only thing that ought to be inferred from the lack of a notice provision is that Congress, knowing it could have mandated a prior notice procedure of some kind, as it did in the 1970 Controlled Substances Act and Organized Crime Control Act, chose not to do so. "It is not a function of this Court to presume that 'Congress was unaware of what it accomplished....' " Id. at 341-42, 101 S.Ct. at 1143-44 (citation omitted). Furthermore, Congress has twice examined and revised the terms of the ACCA since it was first enacted, without considering the addition of a notification requirement either time. ⁵

The second reason we reject defendant's argument that the statute should be construed to include a pre-trial notice requirement is that unlike the "dangerous special offender" statutes that he cites, section 924(e) is mandatory, thus eliminating any need for notice. ⁶ See, e.g., United States v. Feldhacker, 849 F.2d 293, 299 (8th Cir.1988) ("It is a self-executing and mandatory provision of law, addressed by Congress to sentencing courts. This is the kind of direction that Congress unquestionably has the right to give, subject only to constitutional limitations....") (referring to 18 U.S.C. Sec. 3147, which enhances the sentence of a person convicted of an offense committed while on release, without requiring pre-trial or pre-plea notice). In contrast, the "dangerous special offender" statutes place discretion to seek enhanced sentencing in the hands of the government and discretion to determine whether a defendant is a "special offender" and "dangerous" with the court. ⁷ Whereas reasonable minds could differ as to whether a defendant is "dangerous," prior convictions are, for the most part, "highly verifiable matters of record." United States v. Rumney, 867 F.2d 714, 719 (1st Cir.1989).

A third reason for rejecting defendant's statutory argument is that two of the statutes cited have been repealed. The Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 212, 98 Stat. 1987 (1984) repealed both 18 U.S.C. Sec. 3575 and 21 U.S.C. Sec. 849(a). In their place, the Act requires the United States Sentencing Commission to specify sentences at or near the maximum term authorized by statute for adult defendants convicted of crimes of violence or certain drug trafficking offenses, if they have at least two prior convictions for such crimes. See 28 U.S.C. Sec. 994(h), (i) (Supp. V 1987). ⁸ If the ACCA ever did belong to a family of federal criminal statutes providing extra procedural protection for recidivist defendants, it is now an orphan. Moreover, another federal criminal statute, recently amended to impose increased penalties for subsequent offenses, contains no notice requirement. ⁹

Defendant also argues for a remand because the prosecutor's failure to provide pre-trial notice was contrary to Department of Justice Policy. The Department of Justice's "Handbook on the Comprehensive Crime Control Act of 1984," issued soon after the act was passed in order to assist federal prosecutors in its implementation, recommends that "procedures similar to those provided in 18 U.S.C. Sec. 3575 (concerning notice for dangerous special offenders) should be followed...." Handbook, p. 196. But the internal guidelines of a federal agency, that are not mandated by statute or the constitution, do not confer substantive rights on any party. See United States v. Michaud, 860 F.2d 495, 497 (1st Cir.1988) (citing cases); United States v. Busher, 817 F.2d 1409, 1411 (9th Cir.1987) (defendant not entitled to rely on United States Attorneys' guidelines where manual stated it did not create any rights enforceable at law by any party). The preface to the Handbook explicitly states: "As is the situation with regard to other Departmental policies, compliance is expected in all cases but a failure to comply is not intended to confer any rights on a defendant or another party in litigation with the United States." Handbook, p. iii.

Although we would normally expect the government to give a defendant pre-trial notice of possible sentence enhancement, we hold that there is no statutory requirement that it do so. Here the government had good reason for not doing so; it was not known at the time of Craveiro's trial that his Rhode Island breaking and entering conviction came within the terms of the statute.

B. Constitutional Arguments

Craveiro also argues that the lack of notice deprived him of his constitutional rights to due process and equal protection. We address these contentions in turn.

First, procedural due process does not require pre-trial notice of the possibility of enhanced sentencing for recidivism. It requires only reasonable notice of and an opportunity to be heard concerning the prior convictions. Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962); United States v. Rundle, 318 F.2d 64, 66 (1962); United States v. Towne, 680 F.Supp. 687 (D.Vt.1988), modified on other grounds, 870 F.2d 880 (2d Cir.1989), cert. denied, --- U.S. ----, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989). ¹⁰ Compare United States v. Rumney, 867 F.2d 714 (1st Cir.1989) (joining nine other circuits in holding that the heightened penalty provision of the ACCA is a sentence enhancer rather than a substantive crime, and therefore holding that the defendant's indictment need not have alleged the three prior felonies). In the case before us, the government notified defendant of the ACCA's applicability through its Information Charging Prior Offenses, filed over a month before the original date set...