U.S. v. Dickerson

• Decision Date: 26 October 1988
• Docket Number: No. 87-3138,87-3138
• Citation: 857 F.2d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde E. DICKERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 414

857 F.2d 414

UNITED STATES of America, Plaintiff-Appellee, v. Clyde E. DICKERSON, Defendant-Appellant.

No. 87-3138.

United States Court of Appeals Seventh Circuit.

Argued May 20, 1988.

Decided Sept. 15, 1988.

Rehearing and Rehearing En Banc Denied Oct. 26, 1988.

Renee E. Schooley, Fed. Pub. Defender, St. Louis, Mo., for defendant-appellant.

James L. Porter, Asst. U.S. Atty. (Frederick J. Hess, U.S. Atty.), East St. Louis, Ill., for plaintiff-appellee.

Before CUMMINGS and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The appellant, Clyde E. Dickerson, was charged in a three-count indictment with interstate transportation of stolen property (18 U.S.C. Sec. 2314), possession of an unregistered firearm (26 U.S.C. Secs. 5861(d) and 5871), and possession of a firearm by a convicted felon (18 U.S.C. Sec. 922(g)(1)). The appellant pleaded guilty to Count I, and was convicted on Counts II and III by a jury trial. He was sentenced to a five-year term of incarceration for Count I, and an eight-year term for Count II to run concurrently with the sentence on Count I. On Count III, the appellant was sentenced to a term of four years to run concurrently to the sentences imposed on Counts II and III, and an additional fifteen-year term pursuant to the enhancement provision of 18 U.S.C. Sec. 924(e)(1) ¹ to run consecutively to the sentences on Counts II and III. We note what may be an ambiguity between the sentences contained in the Commitment Order and the statements of the trial judge when he was imposing the sentences in open court. ²

On appeal, the appellant contends that the district court violated the Double Jeopardy clause of the Fifth Amendment by imposing both a four-year sentence under Sec. 922(g) and an additional fifteen-year term under Sec. 924(e)(1). Dickerson also claims that the district court erred in applying the Sec. 924(e)(1) sentencing enhancement provision to him. We conclude that while the trial judge could not impose two separate sentences on Count III, he remains free to impose the sentencing enhancement provision of Sec. 924(e).

I

In the district court, the Government filed a pre-trial Amended Information which charged the appellant with three previous offenses for burglary, thus subjecting him to the Sec. 924(e)(1) enhancement provision. Section 924(e) applies to felons who have violated 18 U.S.C. Sec. 922(g). ³ According to Sec. 924(e)(1):

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

18 U.S.C. Sec. 924(e)(1).

In its pre-trial Amended Information, the Government charged the appellant with three prior burglary convictions. ⁴ The appellant filed a pre-trial motion to dismiss the enhancement provision, claiming that burglary does not constitute a "violent felony" which is subject to Sec. 924(e). The district court denied the appellant's motion in a pre-trial conference. After the trial and prior to sentencing, the district court conducted a hearing which enabled the appellant to present evidence of the non-violent character of his prior burglary convictions. However, the district court found that the appellant's past convictions satisfied the requirements of Sec. 924(e)(1). Sentencing Tr. at 20. The district court then proceeded to sentence the appellant to an additional, consecutive fifteen-year term of imprisonment for Count III, without vacating the original four-year term imposed on the same count.

II

On appeal, the appellant contends that the district court violated the Double Jeopardy clause of the Fifth Amendment by subjecting him to multiple punishments for Count III. The Double Jeopardy clause provides three fundamental protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). See also Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) ("The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.").

It has been the long recognized domain of the legislature to determine the appropriate punishments to be meted out to those convicted under the criminal statutes. As the Supreme Court stated in Whalen v. United States:

The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress.

445 U.S. at 689, 100 S.Ct. at 1436. See also Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) ("Whatever views may be entertained regarding severity of punishment, ... these are peculiarly questions of legislative policy.").

Consequently, in analyzing the defendant's claim here, we must analyze the language of Sec. 924 ⁵ to determine the legislative intent. See, e.g., Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975) (analyzing congressional intent to discern whether a substantive violation of a federal gambling statute should be considered merged with the conspiracy violation). As this Court has emphasized previously, "[w]here the language and intent of the statute is clear, courts are without the authority to engage in any creative rewriting of a provision." Reed v. United States, 743 F.2d 481, 484 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985). See also United States v. Mayo, 721 F.2d 1084, 1093 (7th Cir.1983) (noting that judicial inquiry into legislative intent usually ends when the language of the statute is unambiguous).

The appellant contends that Sec. 924 is an enhancement provision to assess punishment for violations of Sec. 922(g). While we acknowledge that other circuits have construed Sec. 924 to define a separate offense, see, e.g., United States v. Davis, 801 F.2d 754 (5th Cir.1986); United States v. Brewer, 841 F.2d 667 (6th Cir.1988), this Court has rejected such an interpretation of the statute. We have concluded that the language of Sec. 924(e)(1) prescribes a specific punishment for recidivists. Instead of authorizing a separate punishment for a separate offense, we have determined that Sec. 924(e)(1) is a sentencing enhancement provision for Sec. 922(g). On its face, Sec. 924 is entitled a "Penalties" provision. Section 924(e)(1) specifically applies to any "person who violates Sec. 922(g)." Section 924 does not indicate that it is a separate offense, but explicitly appears to enhance Sec. 922. In our recent decision in United States v. Pirovolos, 844 F.2d 415 (7th Cir.1988), we noted: "As revised, the statute [referring to both Secs. 922 and 924] clearly makes possession of weapons by all convicted felons a single offense, with additional convictions relevant only for sentencing." Id. at 420 (emphasis added).

Our interpretation accords with other courts of appeal that have analyzed the antecedent statutes to Secs. 922 and 924. The Third, Fourth, Eighth, Ninth, Tenth, and District of Columbia Circuits have all interpreted the Armed Career Criminal Act of 1984 ("ACCA"), ⁶ which has been incorporated into Sec. 924(e), as a sentence enhancement provision. See United States v. Hawkins, 811 F.2d 210 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Blannon, 836 F.2d 843 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Rush, 840 F.2d 574 (8th Cir.) (en banc ), cert. denied, --- U.S. ----, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988); United States v. West, 826 F.2d 909 (9th Cir.1987); United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), cert. denied, 480 U.S. 920, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987); United States v. Jackson, 824 F.2d 21 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988).

We note that the Fifth Circuit in United States v. Davis concluded that the ACCA created a new offense. 801 F.2d at 756. The Fifth Circuit supported its construction in Davis by noting that the "Sectional Analysis" of the House Report stated that the predecessor statute to Sec. 922 (the former 18 U.S.C. App. Sec. 1202(a)) was amended by "adding a new offense." That Court found further support for its interpretation because the relevant ACCA provision does not specifically require conviction under the predecessor statute to Sec. 922, or prescribe procedures for a sentencing hearing.

We remain unpersuaded by the analysis in Davis. The legislative history of Secs. 922 and 924 indicates that the ACCA was intended to serve as an enhancement provision. In the House Report accompanying the final version of the ACCA, it is clear that the Act was intended by Congress to give law enforcement officials another option in dealing with career criminals. The ACCA would enable such an option to be achieved "without permitting a radical expansion of Federal jurisdiction over common law...