U.S. v. Giles

• Decision Date: 23 March 1981
• Docket Number: No. 80-3584,80-3584
• Citation: 640 F.2d 621
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonse GILES, Defendant-Appellant. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 621

640 F.2d 621

UNITED STATES of America, Plaintiff-Appellee, v. Alphonse GILES, Defendant-Appellant.

No. 80-3584

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

March 23, 1981.

John E. Unsworth, Jr., New Orleans, La. (Court-appointed), for defendant-appellant.

Robert J. Boitmann, W. Glenn Burns, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Defendant-Appellant Alphonse Giles challenges the constitutionality of the federal statute under which he was convicted in the court below 18 U.S.C. § 922(h)(1) (1976). Because we find no merit in either of Giles' asserted grounds for the statute's unconstitutionality, we affirm his conviction.

I. FACTUAL BACKGROUND LEADING TO THIS APPEAL

On June 22, 1977, Giles pleaded guilty in Louisiana state court to charges of theft of property valued at over $500 a felony violation of section 67 of the Louisiana Criminal Code, La.Rev.Stat.Ann. § 14:67 (West 1974). The theft consisted of the forgery of a company check. For this nonviolent crime, Giles was sentenced to, and served, three years in the Tangipahoa Parish Prison, with credit for the time he had already served.

On June 8, 1979, Giles purchased a .32-caliber semi-automatic pistol from Thompson Sporting Goods in Amite, Louisiana, a licensed dealer in firearms. On November 28, 1979, he purchased a twelve-gauge shotgun from the same dealer. Both guns were stipulated to have traveled in interstate commerce. On both occasions, Giles filled out and signed a Bureau of Alcohol, Tobacco and Firearms Form 4473 which included the following question:

Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter a yes answer is necessary if the judge could have given a sentence of more than one year. Also, a "yes" answer is required if a conviction has been discharged, set aside, or dismissed pursuant to an expungement or rehabilitation statute.)

Giles answered "no" to this question on both forms.

On April 24, 1980, Giles was indicted by a federal grand jury on two counts of unlawful receipt of a firearm by a person who had been convicted of a crime punishable by imprisonment for more than one year, a violation of 18 U.S.C. § 922(h)(1) (1976). ¹ He was also indicted on two counts of making false statements to a licensed firearm dealer in connection with the acquisition of a firearm, a violation of 18 U.S.C. § 922(a)(6) (1976). ² Giles pleaded not guilty to all counts on May 2, 1980, and waived his right to a jury trial.

At his trial before the court on June 9, 1980, Giles admitted purchasing both guns. He testified that he wanted the guns for self-protection as he traveled to and from work. Although he had no specific recollection of filling out the forms, he admitted signing them. Giles contended that he did not understand the question regarding past convictions to be applicable to him because his only past imprisonment had been in his hometown jail. He testified that he did not know that it was unlawful for him to own a gun, and that on previous occasions one of the guns had been taken from him by the local police, but subsequently returned to him. Though he had had little education and could read only with difficulty, on cross-examination he read aloud the question on the Form 4473 regarding prior convictions.

Based on this testimony, Giles was acquitted on the two counts of making false statements to a licensed firearm dealer in connection with the acquisition of a firearm. He was found guilty, however, of both counts under section 922(h) (1). Giles was sentenced to 18 months on each count, to run consecutively.

Through his court-appointed appellate counsel, who also served as his trial counsel Giles advances two arguments that section 922(h)(1) is unconstitutional as applied to him. The first is that section 922(h)(1) violates the equal protection guarantee implicit ³ in the due process clause of the Fifth Amendment because it fails to distinguish between persons whose prior convictions were for serious crimes involving violence and persons whose prior convictions were for serious crimes not involving violence. The second argument is that section 922(h)(1) violates the due process clause of the Fifth Amendment because it fails to provide adequate notice of the conduct it proscribes. We address each of these arguments in turn.

II. EQUAL PROTECTION AND THE FAILURE TO DISTINGUISH BETWEEN VIOLENT AND NONVIOLENT PRIOR SERIOUS CRIMES

Giles draws his first argument from the Supreme Court's language in Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974):

When Congress enacted the provisions under which (Huddleston) was convicted (section 922(a)(6)), it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest.... Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S.Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping "firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968).

Id. at 824, 94 S.Ct. at 1268 (emphasis added).

We assume, without deciding, that Giles is correct in his contention that Congress' ultimate goal in enacting section 922(h)(1) was not to prevent possession of firearms by those convicted of nonviolent crimes, but instead to prevent additional lawlessness and violent crime that flows from the widespread availability of firearms. Prohibiting receipt of firearms by those who have in the past been convicted of serious crimes is but a means to promote that ultimate goal. The rationale supporting the use of this means to promote Congress' ultimate goal is this: persons who have been convicted of serious crimes in the past have demonstrated a greater potential for abuse of their right to possess firearms. Prohibiting such persons from possessing firearms can serve as a prophylactic measure to prevent violent crimes and lawlessness.

The predecessor statute to section 922(h)(1) was limited in its sweep to those persons who had been convicted of a "crime of violence"; the current version of section 922(h)(1), however, is undoubtedly both broader in its sweep and more precise in its definitions. ⁴ In effect, Congress substituted a broader, more precise quantitative standard (conviction of a crime, violent or otherwise, that is punishable by imprisonment for more than one year) for a narrower, somewhat imprecise qualitative standard (conviction of a "crime of violence"). ⁵ By consciously broadening the classes of persons prohibited from receiving firearms, Congress broadened the means by which it hoped to promote its ultimate goal of preventing lawlessness and violent crimes.

Giles contends, however, that the broader sweep of section 922(h)(1) does not rationally further that ultimate goal. In effect, he argues that it is irrational for Congress to presume that those persons who have been convicted of a serious nonviolent crime are more likely than the ordinary citizen to engage in violent crimes involving firearms in the future.

Unfortunately for Giles, however, our response to this argument is largely dictated by the test under which the constitutionality of this type of legislation is reviewed. We agree with the following discussion from a Sixth Circuit case construing this identical section:

It is now well settled that when legislative classifications affect fundamental rights a closer scrutiny of them is required and an overriding or compelling interest must appear to support the legislative classifications.... However, in dealing with social or economic legislation where fundamental rights are not involved a greater latitude is afforded legislative classifications and a statutory classification will not be set aside if a rational basis exists to sustain it....

In United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970), an opinion with which we fully agree, the Ninth Circuit determined that shipping or transporting firearms in interstate or foreign commerce under the now repealed 15 U.S.C. § 902(e) was not a basic or fundamental right. Although 18 U.S.C. § 922(h)(1) does not proscribe shipping or transporting firearms (see 18 U.S.C. § 922(g)) but instead prohibits receiving firearms in interstate commerce, it follows, a fortiori, from the Thoresen holding that receiving firearms shipped in interstate commerce is not a basic constitutional right. Therefore, 18 U.S.C. § 922(h)(1) must be upheld if the classification scheme has any rational basis to support it.

United States v. Craven, 478 F.2d 1329, 1338-39 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). To prevail, Giles must demonstrate that there is no rational relationship between a prohibition on the receipt of firearms by persons convicted of serious nonviolent crimes and the reduction of lawlessness and violent crime. ⁶

To state Giles' argument under the appropriate test is very nearly to refute that argument. We note that three of our sister circuits have rejected identical or substantially similar attacks on section 922(h)(1). The Seventh Circuit has described section 922(h)(1) as "both reasonable and practical" in rejecting an argument identical to that made by Giles. United States v. Weatherford, 471 F.2d 47, 52 & n.6 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2144, 36 L.Ed.2d 695 (1973). In Cody v. United States, 460 F.2d 34, 36 n.3 (8th...