U.S. v. Kahoe

• Decision Date: 28 January 1998
• Docket Number: No. 96-7215,96-7215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Osborne KAHOE, III, a/k/a Joseph Kahoe, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1230

134 F.3d 1230

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Osborne KAHOE, III, a/k/a Joseph Kahoe, Defendant-Appellant.

No. 96-7215.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 1, 1997.

Decided Jan. 28, 1998.

ARGUED: Charles Shepherd Cox, Jr., Alexandria, VA, for Appellant. Marcus John Davis, Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee.

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

WILKINS, Circuit Judge:

Joseph Osborne Kahoe, III appeals a decision of the district court denying his petition for relief pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.1997) from his conviction of being a felon in possession of a firearm and ammunition. See 18 U.S.C.A. § 922(g)(1) (West Supp.1997). Kahoe maintains that the district court erred in concluding that his conviction should not be set aside on the basis that the predicate felony for the § 922(g)(1) offense was vacated subsequent to his commission of that offense. We affirm the judgment of the district court.

I.

In March 1994, Kahoe pled guilty in the district court for the District of Columbia to carrying a firearm during and in relation to a drug trafficking offense. See 18 U.S.C.A. § 924(c)(1) (West Supp.1997). In August 1994, while he was on release pending sentencing, Kahoe was found to be in possession of a firearm and ammunition and subsequently was convicted of violating 18 U.S.C.A. § 922(g)(1), with the March 1994 conviction serving as the disabling predicate felony. Thereafter, a district court in the District of Columbia set aside Kahoe's March 1994 conviction, ruling that § 2255 relief was appropriate in light of the decision of the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that a firearm must be actively employed to satisfy the "use" prong of § 924(c)(1)). Having obtained relief from the underlying predicate felony, Kahoe next moved the district court for the Eastern District of Virginia for § 2255 relief from his § 922(g)(1) conviction, arguing that the latter conviction could not stand once the underlying predicate conviction had been set aside. The district court denied relief, holding that its decision was controlled by Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

II.

Section 922(g)(1) provides, "It shall be unlawful for any person ... who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year ... to .. possess in or affecting commerce[ ] any firearm or ammunition." The term "crime punishable by imprisonment for a term exceeding one year" is defined in 18 U.S.C.A. § 921(a)(20) (West Supp.1997). In general, § 921(a)(20) defines this term to exclude various offenses relating to business practices and offenses classified by state law as misdemeanors punishable by two years imprisonment or less. Of particular relevance here, § 921(a)(20) also states:

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. § 921(a)(20) (emphasis added). Kahoe contends that because the "crime punishable by imprisonment for a term exceeding one year" that provided the disabling predicate offense for his § 922(g)(1) conviction--i.e., his March 1994 conviction--has now been "set aside," it does not qualify as a conviction for purposes of § 922(g)(1), and thus his § 922(g)(1) conviction cannot stand.

In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Supreme Court addressed whether a prior state felony conviction supplied the necessary predicate conviction for a violation of 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1969)--proscribing "[a]ny person who ... has been convicted by a court of the United States or of a State ... of a felony" from possessing a firearm--if the predicate offense was subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Court held that such an offense did supply the predicate conviction. The Court first reasoned that the sweeping and unambiguous language of § 1202(a)(1) prohibited possession of a firearm by any person who had been convicted of a felony. See Lewis, 445 U.S. at 60-61, 100 S.Ct. at 918-19. That the disabling conviction was unconstitutionally obtained did not alter the fact that the defendant had been convicted of a felony at the time he possessed the firearm. See id.

Turning from the language of the statute itself, the Court concluded that "[o]ther provisions ... demonstrate[d] and reinforce[d] its" reading of § 1202(a)(1). Id. at 61, 100 S.Ct. at 919. Specifically, the Court found persuasive that 18 U.S.C. app. § 1203 (Supp. IV 1969) enumerated certain exceptions to § 1202(a)(1), but did not include an exception for one "whose outstanding felony conviction ultimately might turn out to be invalid for any reason." Id. at 62, 100 S.Ct. at 919. Thus, the Court ruled, § 1202(a)(1) stood "in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony." Id.

The Court also determined that the structure of the Omnibus Crime Control and Safe Streets Act of 1968, which enacted § 1202, supported its reading of the statute. See id. at 63-64, 100 S.Ct. at 919-20. The Court noted that § 1202--which was a portion of Title VII of the Act--was enacted contemporaneously with § 922(g) and (h)--which were in Title IV of the Act--and explained that these provisions created categories of presumptively dangerous persons who were prohibited from possessing firearms:

Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from "any person ... who has been convicted" of a felony, although the definition of "felony" differs somewhat in the respective statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm.

Id. at 64, 100 S.Ct. at 920.

Having determined that the statute was not ambiguous, the Court held that it was necessary neither to apply the rule of lenity nor to construe the statute in a manner that avoided the question of whether an invalid conviction constitutionally could provide a predicate offense. See id. at 65, 100 S.Ct. at 920-21. And, the Court concluded that use of an invalid conviction did not violate the equal protection guarantee of the Due Process Clause of the Fifth Amendment because there was a rational basis to believe that a felony conviction, even an invalid one, was an adequate basis on which to prohibit firearm possession. See id. at 65-66, 100 S.Ct. at 920-21. Moreover, the Court specifically ruled that the use of an invalid conviction as a disabling predicate for a § 1202(a)(1) conviction was not inconsistent with Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), in which the Court held that uncounselled convictions could not be used for impeachment purposes during the trial of a subsequent offense, to enhance a sentence, or to serve as a predicate conviction for a recidivist statute. See Lewis, 445 U.S. at 60, 66-67, 100 S.Ct. at 918, 921-22. The Court reasoned:

In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounselled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Congress' judgment that a convicted felon, even one whose conviction was allegedly uncounselled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.

Id. at 67, 100 S.Ct. at 922. In closing, the Court emphasized that "a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm." Id.

Kahoe recognizes that the broad reasoning of Lewis, if applicable, is fatal to his position. But, he argues that Lewis is distinguishable because subsequent to that decision, Congress amended § 921(a)(20) in 1986 to include the language stating that a conviction that has been "set aside ... shall not be considered a conviction for purposes of this chapter." Kahoe contends that this amended language, contrary to that at issue in Lewis, evinces congressional intent that a conviction that has been vacated may not serve as a disabling predicate felony to sup port a § 922(g)(1) conviction. We agree with the district court, however, that the Lewis decision is...