U.S. v. Headspeth, 87-5135

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation852 F.2d 753
Docket NumberNo. 87-5135,87-5135
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Aaron HEADSPETH, Defendant-Appellant.
Decision Date25 July 1988

Harvey Greenberg (Lori Simpson, Baltimore, Md., on brief), for defendant-appellant.

Gregg Lewis Bernstein, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before RUSSELL, PHILLIPS and CHAPMAN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Aaron Headspeth was convicted, following a jury trial, of possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). The district court imposed an enhanced sentence for the violation of Sec. 922(g), pursuant to 18 U.S.C. Sec. 924(e), based on prior convictions for robbery, robbery with a deadly weapon, and storehouse breaking. Headspeth now appeals, challenging both the conviction and the enhanced sentence. We affirm the conviction, but vacate and remand for resentencing, because we find that a prior conviction for storehouse breaking is not a proper basis for sentence enhancement under Sec. 924(e).

I

Headspeth was stopped by two Baltimore City police officers for a routine traffic violation. During the course of this stop, the officers saw a handgun in plain view in Headspeth's car and arrested him. A search incident to this arrest revealed two additional weapons: a nine millimeter pistol and a sawed-off shotgun. The grand jury returned an indictment charging Headspeth with two violations of the federal firearms laws. Count I charged him with possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d); Count II with possession of a firearm after being convicted of a felony, in violation of 18 U.S.C. Sec. 922(g)(1). Shortly after the issuance of the indictment, the government filed a separate criminal information notifying Headspeth that it intended to seek an enhanced penalty for the Sec. 922(g) violation under 18 U.S.C. Sec. 924(e), because it believed Headspeth to have three previous convictions for a "violent felony," as that term is defined in 18 U.S.C. Sec. 924(e)(2)(B). The prior convictions alleged were for robbery, robbery with a deadly weapon, and storehouse breaking.

Headspeth entered pleas of not guilty and was tried before a jury, which returned a verdict of guilty on both counts. At the sentencing hearing, the district court ruled that each of Headspeth's prior convictions was for a "violent felony" within the meaning of 18 U.S.C. Sec. 924(e)(2)(B). Accordingly, the court sentenced Headspeth to an enhanced term of 15 years without parole for the violation of Sec. 922(g), to run concurrently with a term of 10 years for the violation of Sec. 5861(d). This appeal followed.

II

Headspeth raises at the outset several challenges to the validity of his convictions, none of which has merit.

Headspeth's first complaint is that his due process rights were violated when he was denied access to the portion of the presentence report that contained the probation officer's sentencing recommendation. Headspeth acknowledges that Fed.R.Crim.P. 32(c)(3)(A) does not require the sentencing judge to release this portion of the presentence report. He maintains, however, that the rule is in this aspect constitutionally defective. We disagree. While a convicted defendant retains a due process right not to be sentenced on the basis of materially false or inaccurate information, see United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.1976), access to the sentencing recommendation, which is nothing but a subjective judgment made on the basis of facts contained elsewhere in the report, is not necessary to vindicate that interest. See United States v. McKinney, 450 F.2d 943, 943 (4th Cir.1971) (due process does not require disclosure of presentence report); United States v. Knupp, 448 F.2d 412 (4th Cir.1971) (same). Headspeth was given an opportunity to read and respond to all portions of the presentence report except the sentencing recommendation, and that was sufficient to satisfy due process.

Headspeth contends next that the district court committed reversible error in refusing to give his requested instruction on the definition of "reasonable doubt." This argument is without merit. We have frequently admonished district courts not to attempt to define reasonable doubt in their instructions to the jury absent a specific request from the jury itself. See, e.g., Murphy v. Holland, 776 F.2d 470, 475 (4th Cir.1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986); United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985); United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985); Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir.1983). We have done so on the theory that the term reasonable doubt has a "self-evident meaning comprehensible to the lay juror," which judicial efforts to define generally do more to obscure than to illuminate. See Murphy, 776 F.2d at 475. So long as the trial court properly instructs the jury that the government must prove the defendant's guilt beyond a reasonable doubt and that this burden remains with the government throughout the trial, the failure to give an additional instruction defining reasonable doubt, even when requested by the defendant, is therefore not reversible error. See United States v. Marquardt, 786 F.2d 771, 784 (7th Cir.1986); cf. United States v. Woods, 812 F.2d 1483, 1487-88 (4th Cir.1987) (not error to refuse to define "reasonable doubt" in charge to jury). Here the trial court properly instructed the jury that the government bore, throughout the trial, the burden of proving its case beyond a reasonable doubt, and its failure to supplement this instruction with a definition of reasonable doubt is not grounds for reversal.

Headspeth also argues that the district court erred in refusing to allow his counsel to define the term reasonable doubt in closing argument. This argument is flatly refuted by our decision in United States v. Crockett, 813 F.2d 1310 (4th Cir.1987), which held that it was not an abuse of discretion to limit closing argument in this fashion. Id. at 1317.

Finally, Headspeth contends that the district court erred in refusing to give his requested instruction on the defendant's privilege not to testify. Since the district court gave an instruction on testimonial privilege that accurately and adequately stated the governing law, however, its failure to give the precise instruction requested by Headspeth was not reversible error. See United States v. Scheper, 520 F.2d 1355, 1357-58 (4th Cir.1975) (not error to refuse to give precise instruction requested so long as charge given adequately covers its substance); United States v. Beltran, 761 F.2d 1, 11 (1st Cir.1985) (same). Accordingly, the judgment of conviction is affirmed.

III

Headspeth challenges the enhanced sentence he received for the violation of Sec. 922(g) on three separate grounds: (1) that a prior conviction for storehouse breaking is not a proper basis for sentence enhancement under Sec. 924(e); (2) that Sec. 924(e) is void for vagueness; and (3) that his procedural due process rights were violated because he was not given a separate evidentiary hearing on the issue of enhancement. Because we agree with Headspeth that storehouse breaking is not a predicate offense under the statute, we do not reach the constitutional questions presented.

18 U.S.C. Sec. 924(e)(1) establishes a mandatory minimum sentence of 15 years without parole for any person convicted of a violation of 18 U.S.C. Sec. 922(g)--possession of a firearm by a convicted felon--who has three or more previous convictions for a "violent felony" or "serious drug offense." Section 924(e)(2)(B) defines "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year 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.

Two of the prior convictions used to justify the enhancement of Headspeth's sentence were for offenses that clearly fall within this definition: both robbery and robbery with a deadly weapon have as elements the threatened use of force against the person. But the third, which was for storehouse breaking, presents a more difficult question. In context, the relevant statutory language is sufficiently ambiguous as to its intended reach to require resort to interpretive sources and canons.

Under Maryland law, the offense of "storehouse breaking" is defined as follows:

breaking [into] a storehouse, filling station, garage, trailer, cabin, diner, warehouse or other outhouse or into a boat in the day or night with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of $300 or more therefrom....

Md.Ann.Code art. 27, Sec. 32 (1987). Quite plainly, this offense is not the sort of "violent felony" referred to in Sec. 924(e)(2)(B)(i), for it does not have as an element the use--actual, attempted, or threatened--of force against the person. The government contends, however, that storehouse breaking falls within the scope of Sec. 924(e)(2)(B)(ii), both as a form of "burglary" and as an offense that "involves conduct that presents a serious potential risk of physical injury to another." We are not persuaded by either argument.

Section 924(e) does not define the term "burglary." When Congress uses a common law term like burglary in a federal criminal statute without otherwise defining it, Congress is presumed to adopt the meaning given that term at common law. Morrissette v. United States, 342 U.S. 246, 263, 72...

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