U.S. v. Mahon

• Decision Date: 21 April 2006
• Docket Number: No. 04-4317.,04-4317.
• Citation: 444 F.3d 530
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John MAHON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 530

444 F.3d 530

UNITED STATES of America, Plaintiff-Appellee, v. John MAHON, Defendant-Appellant.

No. 04-4317.

United States Court of Appeals, Sixth Circuit.

Argued: February 3, 2006.

Decided and Filed: April 21, 2006.

ARGUED:

Jacqueline A. Johnson, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Joseph P. Schmitz, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Jacqueline A. Johnson, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Joseph P. Schmitz, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined.

MERRITT, J. (p. 536-537), delivered a separate concurring opinion.

OPINION

GILMAN, Circuit Judge.

John Mahon pled guilty to a two-count indictment that charged him with being a felon in possession of a firearm and with making a false statement in attempting to reacquire that firearm. He was sentenced under the then-mandatory United States Sentencing Guidelines to 210 months of imprisonment, but was given an alternate sentence of 180 months in the event that the Guidelines were later determined to be unconstitutional. On appeal, Mahon contends that the enhancement of both sentences pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), violated his Sixth Amendment rights under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Mahon specifically objects to the district court's finding that two of his prior convictions constitute "violent felonies," thereby subjecting him to a mandatory minimum sentence of 15 years under the ACCA. He also argues that the application of the ACCA in this case is fundamentally unfair. For the reasons set forth below, we AFFIRM the district court's application of the ACCA, but VACATE Mahon's sentence and REMAND the case for imposition of the 180-month alternate sentence.

I. BACKGROUND

On December 11, 2002, Mahon was indicted by a federal grand jury on charges of being a felon in possession of a firearm and for making a false statement in an attempt to reacquire that firearm. The charges arose after Mahon sold his Winchester 12-gauge shotgun to a pawn shop. When he attempted to retrieve the firearm from the pawn shop, Mahon was required to complete a disclosure form promulgated by the Bureau of Alcohol, Tobacco, and Firearms (ATF). He falsely denied having been convicted of several felonies in Ohio in the 1980s, including burglary and attempted burglary. Mahon was unable to retrieve his shotgun because he failed the background check, and his former possession of the firearm and his false statement on the ATF form served as the basis for the indictment.

Following the return of the two-count indictment, the government notified Mahon of its intent to seek an enhanced sentence under the ACCA. The ACCA imposes a minimum sentence of 15 years on any convicted felon found guilty of possessing a firearm who also has three previous convictions for "a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). According to the government, Mahon had committed four prior violent felonies in Ohio for (1) attempted burglary in 1982, (2) possession of criminal tools in 1983, (3) breaking and entering in 1983, and (4) breaking and entering in 1985. Mahon has also been convicted of more recent state crimes, including driving under the influence, vandalism, and domestic-violence charges, but the government does not contend that these subsequent crimes constitute "violent felonies" under the ACCA. The Probation Office, in its Presentence Report, also concluded that Mahon was subject to the ACCA and its parallel Sentencing Guidelines § 4B1.4, which resulted in a sentencing range under the Guidelines of 210 to 262 months.

Mahon pled guilty to both counts of the indictment, but objected at sentencing to the ACCA enhancement. He conceded that his convictions for attempted burglary and the possession of criminal tools were properly categorized as "violent" under the ACCA, but argued that neither of the two convictions for breaking and entering met the requirements for classification as violent felonies under Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding that a "burglary" under the ACCA must contain the elements of unlawfully entering a building or structure with the intent to commit a crime therein). The district court disagreed with Mahon's argument. Based on the language in the indictments for the two disputed felonies, it found that both were considered violent felonies under the ACCA. The district court therefore ruled that Mahon had previously been convicted of four violent felonies, which caused him to be classified as an armed career criminal.

On September 27, 2004, before the Supreme Court's decision in Booker, Mahon was sentenced to 210 months of imprisonment under the Guidelines. Because the validity of the Guidelines was then in doubt due to the Supreme Court's earlier decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court imposed an alternate sentence 180 months — the ACCA mandatory minimum — in the event that the Supreme Court later determined that the Guidelines were not binding. The district court noted its "problem with mandatory minimums" and also proclaimed Mahon's sentence of 210 months to be "unduly harsh," but found that it must obey its oath to uphold the law.

Mahon timely appealed his sentence. His primary argument is that the district court committed plain error under Booker when it engaged in factfinding to enhance his sentence to the 15-year mandatory minimum required by the ACCA. The unconstitutional factfinding, according to Mahon, was the determination that two of his prior convictions were of a violent nature. Mahon also argues that the court should reconsider its decision in United States v. Bentley, 29 F.3d 1073 (6th Cir.1994) (holding that subsection (A) of Ohio's burglary statute fits the generic definition of burglary as set forth in Taylor), due to the inherent unfairness of the ACCA's mandatory minimum sentence. Finally, Mahon asks that his case be remanded to the district court for imposition of the alternate sentence in the event we hold that application of the ACCA did not constitute plain error.

II. ANALYSIS

A. Standard of review

Mahon's challenge to his sentence — that the district court violated his Sixth Amendment right to a trial by jury when it determined that two of his prior felony convictions were "violent" — was not raised below. We therefore apply the "plain error" standard of review. The plain-error inquiry is a four-step process under Rule 52(b) of the Federal Rules of Criminal Procedure:

First, we are to consider whether an error occurred in the district court. Absent any error, our inquiry is at an end. However, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.

United States v. Thomas, 11 F.3d 620, 630 (6th Cir.1993) (interpreting the Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Jones, 108 F.3d 668, 670 (6th Cir.1997) (en banc) (following Thomas's division of the plain-error inquiry into "four distinct, though interrelated, analyses").

B. Classification of Mahon's prior felonies as violent

For the first part of the plain-error analysis, we must determine if a Sixth Amendment violation occurred when the district court determined that two of Mahon's prior convictions constituted "violent felonies." Because Mahon and the government agreed that his other two convictions for attempted burglary and the possession of criminal tools were "violent" for ACCA purposes, the district court had to find that only one of his breaking and entering convictions was violent for the ACCA to apply. See 18 U.S.C. § 924(e). The district court held that both of the burglaries in question were violent, and therefore sentenced Mahon pursuant to the ACCA.

A crime is classified as a violent felony by the ACCA if it is punishable by imprisonment for more than one year and it

(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.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The Supreme Court has held that a "burglary" under the ACCA should be limited to its generic meaning as defined by the term's modern usage in the criminal codes of most states. Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id. This generic definition of burglary prevents arbitrary discrepancies in sentences that would occur if a burglary under the ACCA were solely defined according to state law. The ACCA would be imposed with greater frequency, for example, in states that have a more expansive definition of the term, such as covering the breaking into cars and boats in addition to buildings. See id. at 590-91, 110 S.Ct. 2143 (discussing why a generic definition of burglary should be used in applying the ACCA).

Taylor also held that 18 U.S.C. § 924(e)...