U.S. v. Hamblin

• Decision Date: 07 September 1990
• Docket Number: No. 89-8553,89-8553
• Citation: 911 F.2d 551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willis Walter HAMBLIN, Gregory Jones, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 551

911 F.2d 551

UNITED STATES of America, Plaintiff-Appellee, v. Willis Walter HAMBLIN, Gregory Jones, Defendants-Appellants.

No. 89-8553.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 1990.

As Amended Oct. 11, 1990.

Paul S. Kish, Federal Defender Program, Atlanta, Ga., for Hamblin.

William A. Morrison, Atlanta, Ga., for defendant-appellant Gregory Jones.

Robert L. Barr, Jr., U.S. Atty., F. Gentry Shelnutt, Jr., Atlanta, Ga., for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and BIRCH, Circuit Judges, and RE ^*, Chief Judge.

BIRCH, Circuit Judge:

The central focus of this appeal concerns the mandatory sentencing provisions of 18 U.S.C. Sec. 924(c). Appellants Willis Hamblin and Gregory Jones attack the district court's application of that statute to them as well as the underlying constitutionality of section 924(c). Jones also claims ineffective assistance of counsel, attacks the sufficiency of the government's evidence supporting his conviction, and appeals the district court's use of the sentencing guidelines to increase his punishment at his sentencing hearing. ¹ Hamblin contends that the evidence was insufficient to convict him for two violations of section 924(c). Both Jones and Hamblin appeal the district court's failure to grant their motions for mistrial, after they won a judgment of acquittal on four counts of the original nine-count indictment, based upon alleged prejudice resulting from the government's presentation of evidence to the jury on the dismissed counts. We REVERSE Hamblin's conviction on Count Two of the indictment for insufficient evidence, VACATE Hamblin's sentence and REMAND to the district court for resentencing, and AFFIRM on all other claims raised by appellants.

BACKGROUND

On January 10, 1989, appellants were charged in a nine-count indictment with violations of 18 U.S.C. Secs. 2, 2113(a), 2113(d) and 924(c). The charges stemmed from four bank robberies committed between September 24 and December 14, 1988. Jones and Hamblin were jointly named in eight counts of the indictment for Prior to trial, each defendant filed a motion to sever his trial from that of his co-defendant. The district judge decided, due to the large number of witnesses common to both defendants, that the court would empanel two juries. This approach enabled the court to sever the trials upon the conclusion of testimony by the common witnesses. After nineteen witnesses testified with both juries present in the courtroom, the Jones jury was recessed and several additional witnesses testified before Hamblin's jury. The Jones jury returned to the courtroom for three witnesses, including Hamblin's testimony in his own defense, then the trials were severed. Neither defense attorney objected to severance nor to the use of two juries.

bank robbery and unlawful use of a firearm in connection with each robbery, and Jones was separately charged with one count of possession of a handgun by a convicted felon under 18 U.S.C. Sec. 922(g).

At the close of the government's case, the district court granted a judgment of acquittal on the four counts relating to the second and third bank robberies. Both defendants moved for a mistrial as to the remaining counts, arguing that the evidence presented to the juries on the dismissed counts had prejudiced the defendants because the juries could not ignore that evidence in reaching a decision on the other charges. The motions were denied by the district court. Jones and Hamblin's respective juries convicted them on the remaining counts in the indictment.

DISCUSSION

1. Appellants' Claims Under 18 U.S.C. Sec. 924(c)

In United States v. Rawlings, 821 F.2d 1543 (11th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987), we held that the enhanced penalty provision of 18 U.S.C. Sec. 924(c) applies to multiple offenses, even if those offenses are charged in a single indictment. That opinion briefly reviewed basic rules of statutory construction, and evidence of Congressional intent in enacting section 924(c), before analyzing the plain meaning of the language used by Congress. Id., 821 F.2d at 1545-46. By its terms, the enhanced penalty provision applies in "the case of a second or subsequent conviction under this subsection." 18 U.S.C. Sec. 924(c). Accordingly, in Rawlings we said that

[w]e assume that distinction serves some purpose. Subsequent, as defined by Webster's Dictionary, means "following in time, order, or place." The definition of "second," however, does not have such limitations. In the context of the statute, it only means one more after the first, or another or additional conviction. Based on this broad "second or subsequent conviction" language, we find that appellant's second conviction under Sec. 924(c), even though in the same indictment as his first conviction, legitimately triggers the enhancement provision.

Rawlings, 821 F.2d at 1545. Appellants urge this court to reconsider its decision in Rawlings for several reasons, each of which will be discussed in turn.

First, appellants contend that Rawlings is an aberration because it has not been followed or cited with approval by any other court since its publication over two years ago. Even if true, that argument would be unpersuasive to the three-judge panel in this case because we are bound by circuit precedent. United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.1986). The government notes, however, that Rawlings also has not been criticized by any other circuit.

After the parties filed their appellate briefs in this case, the Sixth Circuit decided United States v. Nabors, 901 F.2d 1351 (6th Cir.1990). In Nabors, the defendant argued that his two convictions under section 924(c)(1) were based upon one use of firearms and therefore could not support separate sentences under that statute. The Sixth Circuit disagreed, finding that defendant used one firearm in the commission of two predicate offenses, and discussed Rawlings before concluding that "we concur with the reasoning in Rawlings that two distinct violations of the statute trigger the subsequent sentence enhancement provisions of Sec. 924(c)(1)." Nabors 901 F.2d at 1358. Appellants' argument on this basis is rejected.

Next, appellants note that the enhanced penalty under section 924(c) has been increased from 10 years to 20 years since Rawlings was decided. Therefore, they claim, the decision should be reconsidered in light of that change in the statute. However, the duration of the enhanced penalty was irrelevant to the reasoning of the Rawlings opinion.

Hamblin also argues that Rawlings should not apply to him because, unlike the defendant in that case, Hamblin is a young man with no prior criminal record, and his participation in the criminal acts for which he has been convicted does not justify the sentence imposed upon him by the statute. While we may be sympathetic to such arguments in certain circumstances, they are in the nature of policy considerations and should properly be directed to Congress. We are bound to enforce the law as it is written. In this instance, the law in question was properly applied by the district court.

2. Constitutionality Of Section 924(c)

Appellants argue that section 924(c) violates their right to due process of law by preventing a meaningful sentencing hearing that would permit the trial judge to consider the individual circumstances of each case before fashioning an appropriate sentence. Appellants also contend that the statute denies due process by creating an irrebuttable presumption, contrary to fact, that the only appropriate sentence for anyone convicted under its terms is 25 years in prison without parole. Finally, appellants allege that the punishment provision of the statute is arbitrary and irrational.

In United States v. Goodface, 835 F.2d 1233 (8th Cir.1987), the court upheld the constitutionality of the mandatory sentencing provision of section 924(c). The appellant in that case attacked the statute for depriving the trial judge of discretion to impose a lesser penalty. In its opinion, the Eighth Circuit noted that

[i]n non-death penalty cases, "the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Moreover, the authority to define and fix the punishment for felony convictions is "purely a matter of legislative prerogative." Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980); United States v. McClinton, 815 F.2d 1242, 1244 (8th Cir.1987).

Goodface, 835 F.2d at 1236. That court concluded that "the mandatory sentencing provision of section 924(c) applicable here does not violate due process merely because it divests the district court of sentencing discretion." Id. at 1236-37.

While the constitutional issue decided in Goodface and presented here has not been previously before this court with respect to section 924(c), we have affirmed the constitutionality of mandatory sentencing provisions in other statutes. See United States v. Erves, 880 F.2d 376 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 416, 107 L.Ed.2d 381 (1989) (involving Sentencing Guidelines promulgated under Sentencing Reform Act of 1984); United States v. Harris, 876 F.2d 1502 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 417, 107 L.Ed.2d 382, cert. denied, --- U.S. ----, 110 S.Ct. 569, 107 L.Ed.2d 563 (1989) (involving Sentencing Guidelines); United States v. Holmes, 838 F.2d 1175 (11th Cir.), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988) (involving Comprehensive Drug Abuse Prevention and Control Act). The provision at issue in section 924(c) cannot be distinguished from those challenged in the Eleventh Circuit cases cited above to justify disregard for established precedent.

...