U.S. v. Gibbs

• Decision Date: 29 August 2011
• Docket Number: No. 10–4294.,10–4294.
• Citation: 656 F.3d 180
• Parties: UNITED STATES of America, Appellantv.Leonard GIBBS.
• Court: U.S. Court of Appeals — Third Circuit

656 F.3d 180

UNITED STATES of America, Appellant

v.Leonard GIBBS.

No. 10–4294.

United States Court of Appeals, Third Circuit.

Argued July 14, 2011.Filed: Aug. 29, 2011.

Kevin R. Gingras (Argued), United States Department of Justice, Appellate Section, Washington, DC, Keith M. Rosen, Office of United States Attorney, Wilmington, DE, for Appellant.Daniel I. Siegel (Argued), Office of Federal Public Defender, Wilmington, DE, for Appellee.Before: SLOVITER, FUENTES and FISHER, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

The government brings this appeal challenging the District Court's ruling that a prior conviction for wearing body armor while committing a felony in violation of 11 Del. C. § 1449(a) is not a predicate offense under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We hold that the body armor conviction is an ACCA predicate offense because it involved the possession of cocaine with intent to distribute. It is “a serious drug offense.” 18 U.S.C. § 924(e)(1). We will vacate the ruling of the District Court and remand for sentencing in conformity with this opinion.

I.

Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm. A person convicted under this section is subject to a fifteen-year sentence-enhancement provision:

(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, committed on occasions different from one another, such person shall be fined under this title 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).

(2) As used in this subsection—

(A) the term “serious drug offense” means—

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; ....

18 U.S.C. § 924(e).

Leonard Gibbs was arrested for violating the conditions of his probation. In the course of arrest, the police discovered a loaded .357 caliber revolver with ammunition. He was charged with two counts: knowing possession of a firearm and knowing possession of ammunition after having been previously convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Gibbs pled guilty to the firearm count pursuant to a plea agreement, which stated that “[t]he maximum penalties for this offense are 10 years [of] imprisonment” and that the government agreed to move to dismiss the ammunition count. The District Court accepted Gibbs' guilty plea.

After the guilty plea but before Gibbs' sentencing, the government changed its position. The government explained that, after reviewing the pleadings from Gibbs' previous convictions, it concluded that Gibbs had three prior felonies meeting the requirements for an enhancement under the ACCA. By the government's count, the three § 924(e) “violent felony or a serious drug offense” convictions included a 2003 conviction for “aggravated menacing,” a 2004 conviction for possession with intent to deliver cocaine, and a 2007 conviction in Delaware state court for wearing body armor while committing a felony. There was no dispute that the first two convictions are ACCA predicate offenses, but the government changed its position with respect to the 2007 conviction.

The government argued that wearing body armor while committing a felony was a serious drug offense under § 924(e) because the underlying felony was possession with intent to distribute cocaine. After Gibbs' guilty plea but before the sentencing hearing, the government informed Gibbs in a letter of its revised position. No longer did the government subscribe to its view in the plea agreement that “[t]he maximum penalties for this offense are 10 years [of] imprisonment.” As a result, the government stated, it would not oppose a motion by Gibbs to withdraw his guilty plea before sentencing. But if Gibbs wished to proceed, the government would argue for the imposition of an enhanced sentence under the ACCA. Gibbs decided to proceed to sentencing, where he would argue that the body armor conviction was not an ACCA predicate offense.

At the sentencing hearing, the government argued that the District Court must take a closer look at Gibbs' 2007 conviction. The indictment charged him with two counts. The first stated that Gibbs “did knowingly wear body armor during the commission of a felony, Possession with Intent to Deliver Cocaine, as set forth in Count II of this indictment which is incorporated herein by reference.” (App. at 28.) Count II charged that Gibbs “did knowingly and unlawfully possess Cocaine ... with the intent to deliver same,” in violation of 16 Del. C. § 4751. (Id. at 28–29.) Gibbs pled guilty to the first count but not the second. In doing so, he engaged in the following colloquy:

The Court: You are charged that on or about the 21st day of October 2006, in the County of New Castle, State of Delaware, you did knowingly wear body armor during the commission of a felony, the felony being Possession with Intent to Deliver Cocaine, in violation of Title 11 of the Delaware Code. Do you understand the crime as I've read it to you?

The Defendant: Yes, ma'am.

The Court: And how do you plead?

The Defendant: Guilty. ( Id. at 51–52.) The government argued that, though Gibbs was not convicted of the drug charge, the body armor conviction was a serious drug offense.

After considering the government's changed position, the probation office released a revised presentence report concluding that Gibbs was not subject to an ACCA enhancement. The government objected, and the District Court ruled in Gibbs' favor.¹ The Court stated that it could only look to the text of the statute and the fact of conviction. The Delaware body armor statute proscribes a person from “wear[ing] body armor during the commission of a felony.” 11 Del. C. § 1449. The statute does not limit the underlying “felony” to drug-related felonies. The District Court concluded that “the substantive content of [Delaware's body armor statute] does not qualify it as a serious drug crime under the ACCA,” (app. at 71) and held that Gibbs was not subject to the § 924(e) enhancement. The Court sentenced Gibbs to 72 months' imprisonment, and the government timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the District Court's denial of the ACCA enhancement de novo because the government's appeal raises a pure question of law. United States v. Henton, 374 F.3d 467, 469 (7th Cir.2004); United States v. Jones, 332 F.3d 688, 690–91 (3d Cir.2003).

III.

The government appeals the District Court's ruling that Gibbs' state body armor conviction is not an ACCA predicate offense. We start with the text of the ACCA. A state conviction qualifies as “a serious drug offense” if it is an offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). There is no dispute that Gibbs' body armor conviction carried a maximum term of imprisonment of ten years or more, see 11 Del. C. §§ 1449 and 4205(b)(2) (carrying a statutory maximum of 25 years imprisonment). The issue is whether the body armor conviction “involv[ed]” manufacturing, distributing, or possessing, with intent to manufacture or distribute, a controlled substance.

Congress's use of the term “involving” expands the meaning of a serious drug offense beyond the simple offenses of manufacturing, distributing, and possessing a controlled substance. See, e.g., United States v. James, 834 F.2d 92, 93 (4th Cir.1987) (stating that “violations ‘involving’ the distribution, manufacture, or importation of controlled substances must be read as including more than merely crimes of distribution, manufacturing, and importation themselves”). The plain meaning of “involve” is “to relate closely” or to “connect closely.” United States v. McKenney, 450 F.3d 39, 43 (1st Cir.2006) (citing Webster's Third New International Dictionary 1191 (1993) and The American Heritage Dictionary 921 (4th ed. 2000), respectively). The definition of a serious drug offense should be construed to extend “§ 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such conduct.” United States v. King, 325 F.3d 110, 113 (2d Cir.2003). In adopting this position, we conform with all courts of appeals that have addressed the...