U.S. v. Jackson

• Citation: 835 F.2d 1195
• Decision Date: 19 January 1988
• Docket Number: No. 87-1301,87-1301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwight E. JACKSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1195

835 F.2d 1195

UNITED STATES of America, Plaintiff-Appellee, v. Dwight E. JACKSON, Defendant-Appellant.

No. 87-1301.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1987.

Decided Dec. 14, 1987.

As Amended Jan. 19, 1988.

Gregory J. Schlesinger, Chicago, Ill., for appellant.

Scott T. Meneloff, Asst. U.S. Atty., Chicago, Ill., for appellee.

Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Thirty minutes after being released from prison, to which he had been sent on conviction of two bank robberies, Dwight Jackson robbed another bank. He was let out as part of a "work release program" and returned to his old line of work. Told to get a job, he decided to do a bank job. A passer-by saw a suspicious person flee the bank and noted the license plate of the car. The police found that the car was registered to Mitty Sturdivant of Chicago. Police and FBI agents headed for Sturdivant's home; while they were there, the car pulled up. Out got Jackson, Sturdivant's son. The agents arrested Jackson and searched the car, finding a loaded gun and clothing worn during the robbery. Jackson was back in prison before the sun set on the day of his release. His principal sentence--life in prison without possibility of parole--came under a statute forbidding possession of weapons by career criminals, 18 U.S.C.App. Sec. 1202 (repealed 1986). The citation of the statute discloses Jackson's principal argument.

Section 1202, as amended during the overhaul of the criminal code in 1984, provided that anyone "who ... possesses ... any firearm and who has three previous [felony] convictions for robbery or burglary, or both, ... shall be fined not more than $25,000 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 ..., and such person shall not be eligible for parole with respect to the sentence imposed under this subsection." Jackson, who had been convicted of four armed bank robberies and one armed robbery, brandished his revolver and robbed the Continental Bank of Oakbrook Terrace, Illinois, on May 30, 1986, while this statute was in force. It was in force only because the repealer, Sec. 104(b) of the Firearms Owner's Protection Act, 100 Stat. 459, signed by the President on May 19, 1986, was deferred for 180 days by Sec. 110(a) of the same act. Section 1202 therefore survived until November 1986. Jackson was indicted on July 25, 1986, but not sentenced until February 18, 1987, which, he says, was too late, because by then Sec. 1202 had expired.

Jackson does not reckon with the General Savings Statute, 1 U.S.C. Sec. 109, which provides in part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

The 1986 statute does not "expressly" absolve those who violated Sec. 1202. As a result, an act prior to the effective date of the repeal supports a conviction thereafter. Pipefitters v. United States, 407 U.S. 385, 432-42, 92 S.Ct. 2247, 2272-77, 33 L.Ed.2d 11 (1972). If the 1986 act established a legal right of felons to own firearms, we would have a difficult case, for the reasons given in Hamm v. City of Rock Hill, 379 U.S. 306, 314-17, 85 S.Ct. 384, 390-92, 13 L.Ed.2d 300 (1964). But Congress did not substitute a legal right for what had been a legal wrong; it simply altered the elements of the offense. New 18 U.S.C. Secs. 922(g) and 924(e)(1) continue the prohibition and the 15-year minimum term, if each of the three prior convictions was of "a violent felony or a serious drug offense". Armed robbery meets the definition of "violent felony" in Sec. 924(e)(2)(B)(i). The prohibition applicable to Jackson's conduct has been in force continuously, and the General Savings Statute prevents him from receiving a windfall just because he was convicted and sentenced more than 180 days after May 19, 1986.

Jackson received a life sentence under Sec. 1202, which forbade release on parole. He concedes that the statute permitted the imposition of any term of years but insists that it allowed only determinate numbers of years and therefore did not authorize a life sentence. When parole is forbidden, however, a judge may use either method to reach the same result. Jackson was 35 when he committed the crime. Unless there are startling advances in geriatric medicine, a long term of imprisonment (say, 60 years) and life are the same sentence; it would be silly to read the statute as authorizing one but not the other. Other statutes without stated maxima have been treated as authorizing life sentences. E.g., Bates v. Johnson, 111 F.2d 966 (9th Cir.1940) (Lindberg Act, which does not have a maximum, authorizes life for kidnapping); United States v. Bridges, 760 F.2d 151, 153 (7th Cir.1985) (21 U.S.C. Sec. 841(b)(1)(A), dealing with special parole, "does not expressly specify the maximum parole term ... [and therefore] can only be read as authorizing a life time maximum"). See Walberg v. United States, 763 F.2d 143, 148-49 (2d Cir.1985) (collecting similar cases). A minimum term of 15 years without possibility of parole is exceptionally stiff; a section containing such a minimum implies a high maximum too.

The imposition of life in prison on Jackson was permissible. The selection of a sentence within the statutory range is essentially free of appellate review. Dorszynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855 (1974); United States v. Taggatz, 831 F.2d 1355, 1362 (7th Cir.1987); United States v. Sato, 814 F.2d 449, 451-52 (7th Cir.1987). Armed bank robbery on the day of release--following earlier armed robbery convictions back to 1973--marked Jackson as a career criminal. Specific deterrence had failed. The court was entitled to consider general deterrence and incapacitation. Although life without possibility of parole is the upper end of the scale of sanctions (short of capital punishment), the statute reflects a judgment that career criminals who persist in possessing weapons should be dealt with most severely. The Sentencing Commission has determined that a criminal such as Jackson should receive an exceptionally long sentence--27 years without possibility of parole at the minimum, and life without possibility of parole at the maximum. Appellate review of sentences accompanies the Guidelines; we are neither authorized nor inclined to upset this pre-Guideline sentence given the determination of both Congress and Sentencing Commission to take a dim view of Jackson's conduct. If this sentence is unduly harsh, the holder of the clemency power may supply a remedy.

The parties have not addressed how the Guidelines would apply to this combination of offenses in the future, but the case exposes an ambiguity that the Sentencing Commission may wish to consider. As a repeat offender, Jackson would fall under Sec. 4B1.1 of the Guidelines. Those who commit violent felonies (bank robbery is a violent felony under Sec. 4B1.2 Note 1) and have two prior convictions of violent felonies (as Jackson has) receive an offense level of 34 if the statutory maximum is 20 years or more, an offense level of 37 if the statutory maximum is life. A level of 37 yields a guideline range of 360 months to life--without possibility of parole, which has been abolished for sentences under the Guidelines. A level of 34 yields a sentence range of 262-327 months. ^* Section 1202 had a maximum of life; armed bank robbery under 18 U.S.C. Sec. 2113(d) carries a maximum of 25 years. So the effect of Sec. 4B1.1 seems to depend on whether the "offense statutory maximum" under Sec. 4B1.1 refers to the maximum lawful sentence for the crime of violence, or the maximum for any of the crimes that would be part of a single "group" under Sec. 3D1.2 of the Guidelines.

Neither text nor commentary in the Guidelines addresses this point, probably for two reasons. First, the maximum penalty applicable to a group of related offenses usually attaches to the crime of violence. Second, the Guidelines treat illegal possession of a weapon as less serious than bank robbery, compare Sec. 2B3.1 with Sec. 2K2.1--which it is except when there are prior felony convictions and Sec. 1202 or its successor Sec. 924(e) therefore applies. This means that the Guidelines regularly treat robbery as the base offense in any grouping of offenses under Sec. 3D, making the possession charge unimportant and postponing to Sec. 4B1.1 the effect of prior offenses. The judge who turns to Sec. 4B1.1 to deal with the possession-based multiple offense crime then finds that the Guidelines assume that the violent crime rather than the possessory crime should be the basis of the enhancement, while Congress specified the use of the weapons charge for that purpose. To put this differently, none of the provisions of the Guidelines addresses Sec. 1202 or Sec. 924(e); neither is listed in the "Statutory Index" of offenses covered by the Guidelines. There is a possibility, of course, that the weapons offense under Sec. 1202 and Sec. 924(e) is a "crime of violence" under Sec. 4B1.2 Note 1 because "by its nature [it] involves a substantial risk that physical force against the person or property of another may be used"--even though Sec. 1202 and Sec. 924(e) may be violated by possession divorced from use of the gun. We express no view on these questions, except to hope that the Commission will resolve them before they...