U.S. v. Gatewood

• Decision Date: 30 May 2000
• Docket Number: No. 98-5138,98-5138
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Johnny E. Gatewood,Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 186

230 F.3d 186 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Johnny E. Gatewood,Defendant-Appellant.

No. 98-5138

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 30, 2000

Decided and Filed: October 10, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 95-20183--Jon Phipps McCalla, District Judge.

Tony R. Arvin, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, Joseph C. Wyderko, DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, APPELLATE SECTION, Washington, D.C., for Appellee.

K. Jayaraman, Memphis, Tennessee, for Appellant.

Before: MARTIN, Chief Judge; KEITH, MERRITT, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

MARTIN, C. J., delivered the opinion of the court, in which RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and GILMAN, JJ., joined. MERRITT, J. (pp. __-__), delivered a separate dissenting opinion, in which KEITH, COLE, and CLAY, JJ., joined.

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

On March 6, 1997, a jury found Johnny Gatewood guilty of a robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951, and two counts of kidnaping in violation of 18 U.S.C. § 1201. Gatewood was subsequently sentenced to serve three concurrent life terms pursuant to the federal three strikes statute, 18 U.S.C. § 3559(c). Gatewood appeals the sentence, claiming that the three strikes statute violates his constitutional rights because, in order to take advantage of the statute's affirmative defense provision, it requires that he prove by the heightened standard of "clear and convincing evidence" that his prior convictions were "nonqualifying felonies." He further challenges the constitutionality of his sentence by alleging that his prior convictions are equivalent to elements of the offense and thus must be charged in the indictment, submitted to a jury and proved beyond a reasonable doubt. In addition, Gatewood appeals the district court's denial of his motion to suppress his confessions and his motion to suppress the pretrial eyewitness identifications.

A panel of this Court originally affirmed Gatewood's conviction but vacated and remanded his sentence based on a finding that the three strikes statute's clear and convincing evidence standard was unconstitutional. United States v. Gatewood, 184 F.3d 550 (6th Cir. 1999). We granted a rehearing en banc and vacated the panel decision. United States v. Gatewood, 204 F.3d 680 (6th Cir. 1999). Finding that the clear and convincing evidence standard, as used in the three strikes statute, is constitutional and that prior convictions are not elements of a crime, we AFFIRM the district court's conviction and sentence. We also deny Gatewood's request to suppress his confession and pretrial identification.

I.

In February 1995, Johnny Gatewood kidnaped two women from the parking lot of a Memphis, Tennessee restaurant. He forced them at gunpoint to drive to Arkansas where he robbed them before they were able to escape. Two nights later, Gatewood robbed a Memphis motel, again using a gun. The kidnaping victims in the first case positively identified Gatewood as their kidnaper from a photographic lineup. They again identified him in-person at the time of trial. Gatewood filed a motion to suppress his confession and a motion to suppress the pretrial eyewitness identifications. The district court denied both motions.

Prior to trial, the United States gave notice that it would seek a mandatory life imprisonment sentence under the three strikes statute, based on four prior Arkansas state convictions: (1) a 1966 conviction for robbery; (2) a 1966 conviction for assault with intent to commit robbery; (3) a 1971 conviction for armed robbery; and (4) a 1976 conviction for aggravated robbery. The district court denied Gatewood's objection to the three strikes statute and sentenced him based on these prior convictions.

Under the three strikes statute, 18 U.S.C. § 3559(c)(1)(A)(i), a defendant receives a mandatory life imprisonment if he is convicted of a serious violent felony and has previously been convicted of two or more such felonies. The statute defines a "serious violent felony" in part as "a Federal or State offense, by whatever designation or wherever committed, consisting of . . . robbery (as described in section 2111, 2113, or 2118)." 18 U.S.C. § 3559(c)(2)(F)(i). Robbery is defined as the taking of something of value by force and violence or by intimidation from the person or presence of another. See 18 U.S.C. § 2111 (robbery within federal territorial jurisdiction), § 2113 (bank robbery), or § 2118 (robbery of controlled substances from DEA registrant).

The three strikes statute contains a disqualification provision, or an affirmative defense, that provides a defendant with the opportunity to prove that an otherwise qualifying conviction does not constitute a "strike" under the statute. The disqualification provision states:

(3) Nonqualifying felonies. ---

(A) Robbery in certain cases. --- Robbery, an attempt, conspiracy, or solicitation to commit robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that -

(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and (ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.

13 U.S.C. § 3559(c)(3)(A) (emphasis added). A prior felony robbery conviction, therefore, does not constitute a strike if the defendant can prove, by clear and convincing evidence, that it is a nonqualifying felony.

Gatewood argued that his prior convictions constituted nonqualifying felonies. At the sentencing hearing Gatewood testified that he was not a participant in the crimes that led to either the 1966 or 1971 convictions. He also stated that no violence was used in connection with the 1976 robbery. Gatewood's own testimony was the only evidence he presented to establish that the convictions were nonqualifying. The officers who investigated the original offenses had no recollection of the cases and a private detective hired by Gatewood failed to locate any witnesses with any memory of the crimes. The district court found that Gatewood did not establish by clear and convincing evidence that his previous convictions were nonqualifying felonies.

Gatewood further objected to his sentence by claiming that the three strikes statute violated due process. He argued that, because it was virtually impossible to provide evidence sufficient to meet the heightened clear and convincing standard, the standard of proof was unconstitutional. The district court denied Gatewood's objection and Gatewood appealed.

II.

The constitutionality of the clear and convincing standard in the three strikes statute's disqualification provision is one of first impression in this circuit. The issue has been raised in four other appellate courts - the Fifth, Seventh, Ninth, and Tenth Circuits. See United States v. Ferguson, 211 F.3d 878 (5th Cir. May 4, 2000), United States v. Mackovich, 209 F.3d 1227 (10th Cir. 2000); United States v. Kaluna, 192 F.3d 1188 (9th Cir. 1999) (en banc), cert. denied, 120 S. Ct. 1561 (2000); United States v. Wicks, 132 F.3d 383 (7th Cir. 1997). While our sister circuits have addressed the disqualification provision of the three strikes statute, three of the courts, the Seventh, Ninth, and Tenth Circuits, declined to decide the constitutionality of the clear and convincing standard. Instead, they addressed only whether it is constitutionally permissible to shift the burden of proof to the defendant.

Relying on Patterson v. New York, 432 U.S. 197, 207-08 (1977), our sister circuits found, and we agree, that the legislative branch has the constitutional power to allocate the burden of proving an affirmative defense to a defendant. In Patterson, the Supreme Court upheld a New York statute that placed the burden of proving by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional distress in order to reduce a crime to manslaughter in the first degree. See id. The Court held that if a state chooses to recognize a factor that mitigates the degree of criminality or punishment, as long as the prosecution has proven all the elements of the crime beyond a reasonable doubt, the state is free to allocate the burden of proving the affirmative defense to the defendant. See id. at 209. "If Patterson allows such a result even at the stage of the trial where guilt or innocence is decided, it follows that due process does not prohibit the kind of affirmative defense at the sentencing stage found in § 3559(c)(3)(A)." Wicks, 132 F.3d at 389.

In addition, in Parke v. Raley, 506 U.S. 20, 26 (1992), the Court addressed the validity of a Kentucky sentence enhancement law that favored the prosecution with an initial presumption upon proof of the existence of a prior conviction. As in this case, the statute at issue required a recidivist defendant to shoulder the burden of proof in establishing the invalidity of the prior convictions. The Court held that "even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant." Id. at 28. Supreme Court precedent, therefore, firmly establishes that the three strikes statute's requirement that the defendant shoulder the burden of proving an affirmative defense at sentencing is constitutional.

While the Court in Parke and Patterson found it permissible to place the burden of proof on a defendant, it did not address what standard a defendant...