U.S. v. Jackson, 93-9131

• Decision Date: 07 July 1995
• Docket Number: No. 93-9131,93-9131
• Citation: 57 F.3d 1012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley B. JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1012

57 F.3d 1012

UNITED STATES of America, Plaintiff-Appellee, v. Stanley B. JACKSON, Defendant-Appellant.

No. 93-9131.

United States Court of Appeals, Eleventh Circuit.

July 7, 1995.

Michael H. Saul, Marietta, GA, for appellant.

Joe D. Whitley, U.S. Atty., Robert P. Marcovitch, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for appellee.

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

Before EDMONDSON and CARNES, Circuit Judges, and HAND ^*, Senior District Judge.

CARNES, Circuit Judge:

Stanley B. Jackson appeals his conviction and sentence for possessing and receiving a firearm as a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). He contends that the government did not prove all of the elements of that offense, because it failed to prove the inapplicability of the exceptions denoted in Sec. 921(a)(20) which allow a previously convicted felon to possess a firearm. As to his sentence, Jackson contends: that it was error to treat prior convictions as separate for Sec. 924(e) enhancement purposes where those convictions, but not the crimes, occurred on the same day; that it was error to base an upward departure on an uncounseled conviction; and that use of the preponderance of the evidence standard at sentencing violated his due process rights. We reject each of Jackson's contentions.

I. BACKGROUND

In 1990, Jackson pawned at a Georgia pawn shop a .38 caliber revolver that had been manufactured in another state. In January of 1991, he returned to the shop and redeemed the revolver. In order to redeem it, Jackson signed a Bureau of Alcohol, Tobacco and Firearms form 4473, which asked whether he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year. That question on the form contained a "note," which stated:

A "yes" answer is necessary if the judge could have given a sentence of more than one year. A "yes" answer is not required if you have been pardoned for the crime or the conviction has been expunged or set aside, or you have had your civil rights restored and, under the law where the conviction occurred, you are not prohibited from receiving or possessing any firearm.

Notwithstanding the fact that in 1972 he had been convicted in Texas of felony assault, a crime subject to a sentence of more than one year, Jackson answered the question "no."

As a result of his actions, a three-count indictment was returned charging: 1) that Jackson was a convicted felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1); 2) that he made a false and fictitious statement when acquiring a firearm from a federally licensed firearms dealer in violation of 18 U.S.C. Sec. 922(a)(6); and 3) that he was a felon in receipt of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1). At his trial, the government introduced a certified copy of a January 15, 1972, ¹ Texas felony assault conviction from the case of Texas v. Jackson. The government also presented expert testimony that Stanley Jackson's fingerprints matched those on the pawn shop receipt, the 4473 form, and the Texas conviction. The jury convicted Jackson of all three counts, but the district court granted his motion for judgment of acquittal as to the second count.

At the time of his conviction in this case, Jackson had five prior violent felony convictions, and as a result he was treated as an armed career criminal and given an enhanced sentence pursuant to 18 U.S.C. Sec. 924(e)(1). In addition, at the sentence hearing, the government moved for an upward departure from Jackson's original criminal history category pursuant to Sec. 4A1.3 of the United States Sentencing Guidelines, which provides for an enhanced sentence when a defendant's criminal history category does not sufficiently reflect the serious nature of his past conduct or his likelihood of committing future crimes. United States Sentencing Guidelines Sec. 4A1.3 (Nov. 1992). The government presented evidence, including one uncounseled assault conviction, demonstrating that Jackson physically abused three ex-wives and that on July 17, 1992, he attacked with acid his former girlfriend, Clarissa Webb, and her three children.

Webb testified at the sentence hearing that after Jackson had lived with her for three to four months, she had asked him to move out. After he moved out, Jackson began to threaten Webb. On July 16, 1992, Webb told him that she wanted to be his friend, but that their relationship "couldn't go anywhere." However, Jackson said that he wanted to have sex with her and refused to leave; frightened, Webb "let him do what he wanted to do, and then he left." The next day, as Webb prepared to go to church, Jackson called to offer her some money and inquired about what time she would return home. She refused the money. When she returned home that evening with her children, a man was there holding a steaming bowl-shaped object. Webb turned to look at one of her children and then felt "hot stuff" on her body and heard her children screaming. The liquid burned Webb and her children. An analysis of the family's clothing revealed that the liquid was a mixture of sulfuric acid and sodium hydroxide (lye). Webb identified the attacker as Jackson. ²

Faced with this evidence, the district court upwardly departed from Jackson's original criminal history category of IV, explaining:

I have rarely seen pure unadulterated evil, and I think I have seen that today. To do what Mr. Jackson did to this woman and these three children is one of the meanest, cruelest, most depraved acts I am aware of. And I can't fathom what kind of person would do that. But suffice it to say that the court feels that that kind of person is a great danger to the society, to this society, and that the court finds Mr. Jackson is guilty of that incident and that that justifies a departure to a category six.

The district court sentenced Jackson to 293 months of incarceration and to three years of supervised release for the two counts for which he was convicted, and it ordered him to pay a $100 special assessment.

On appeal, Jackson challenges both his conviction and his sentence. He contends that his conviction as a convicted felon in possession of a firearm pursuant to 18 U.S.C. Sec. 922(g)(1) is invalid because the government failed to prove that, under Texas law, he was not entitled to possess a firearm. Jackson also contends that the district court erred by enhancing his sentence pursuant to Sec. 924(e)(1) because he was not an armed career criminal within the meaning of that provision. It was also error, he contends, for the district court to further enhance his sentence pursuant to U.S.S.G. Sec. 4A1.3, both because that enhancement was based upon an uncounseled conviction, and also because it was based upon another factual predicate to which the district court applied the preponderance of the evidence standard. We reject each of Jackson's contentions.

II. DISCUSSION

A. THE BURDEN OF PROOF RELATING TO THE Sec. 921(a)(20) EXCEPTIONS

Felons are generally prohibited from possessing firearms by 18 U.S.C. Sec. 922(g)(1). Jackson's conviction under that statutory provision for being a felon who received and possessed a firearm was based upon his 1972 Texas conviction for felony assault. He contends that his Sec. 922(g)(1) conviction is due to be reversed because the government failed to prove that Texas law barred him from possessing a handgun. More specifically, he claims that the government failed to prove that his Texas felony assault conviction had not been expunged, pardoned, or set aside or his civil rights restored so that he could lawfully possess a firearm under Texas law.

Section 922(g)(1) provides:

It shall be unlawful for any person--(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C.A. Sec. 922(g)(1) (West Supp.1994) (emphasis added). The statutory phrase "crime punishable by imprisonment for a term exceeding one year" is defined as follows:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C.A. Sec. 921(a)(20) (West Supp.1994) (emphasis added). This definitional subsection was added in 1986.

Jackson contends that Sec. 921(a)(20), and especially the underscored language, adds new elements that the government must affirmatively prove--the government must prove that the prior felony conviction used as the predicate for a Sec. 922(g)(1) charge has not been expunged, set aside, or pardoned, and that the defendant has not otherwise had his civil rights restored so that he may possess firearms. In other words, it is Jackson's position that the government must prove a negative and affirmatively rule out the existence of what we will refer to collectively as the "expungement exception."

While we have not explicitly addressed this precise issue before, in United States v. Laroche, 723 F.2d 1541 (11th Cir.), cert. denied, 467 U.S. 1245, 104 S.Ct. 3521, 82 L.Ed.2d 829 (1984), we decided an issue that is closely analogous. The appellant in Laroche had been convicted under the predecessor statute to Sec. 922(g)(1) for being a felon in possession of a firearm. That statute, like the current statute, contained an exception in Secs. 921(a)(3) and (a)(16...