U.S. v. Mathis, 90-3272

• Decision Date: 15 June 1992
• Docket Number: No. 90-3272,90-3272
• Citation: 963 F.2d 399,295 U.S. App. D.C. 296
• Parties: UNITED STATES of America, v. Eddie J. MATHIS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 399

963 F.2d 399

295 U.S.App.D.C. 296

UNITED STATES of America, v. Eddie J. MATHIS, Appellant.

No. 90-3272.

United States Court of Appeals, District of Columbia Circuit.

Argued March 27, 1992.

Decided May 1, 1992.

Rehearing and Rehearing En Banc

Denied June 15, 1992.

Appeal from the United States District Court for the District of Columbia (Criminal No. 90-00139-02).

R. Kenneth Mundy, Washington, D.C., for appellant.

DeMaurice F. Smith, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Russell D. Duncan, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before WALD, EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Eddie J. Mathis raises two issues on appeal: First, whether the district court erred in concluding that appellant's prior conviction for robbery in violation of D.C.CODE ANN. § 22-2901 was a "violent felony" within the meaning of 18 U.S.C. § 924(e), which provides for a fifteen-year mandatory minimum prison sentence for a felon convicted of possessing a firearm or ammunition who has also been convicted of three prior violent felonies; and second, whether the district court abused its discretion in denying appellant's motion to withdraw his plea of guilty upon realizing that the district judge intended to sentence him to the mandatory minimum of fifteen years in prison. Although we find that the district court did not abuse its discretion in denying appellant's motion to withdraw his plea of guilty, we cannot conclude, on the record as it currently exists, that the robbery conviction was a violent felony within the meaning of the statute. We therefore remand for further consideration of the sentence.

I. BACKGROUND

On February 21, 1990, appellant was driving himself and three passengers in his truck in southeast Washington, D.C. As they passed an unmarked police car, the officers recognized one of appellant's passengers as an escaped felon. The officers stopped the truck and subsequently searched all of the occupants as well as the truck itself. The three passengers were each wearing bullet-proof vests and carrying loaded firearms. ¹ The officers found that appellant was also wearing a bullet-proof vest. In a pocket of the vest, the officers found two loaded magazines, each containing eight rounds of ten millimeter ammunition. Although the officers found no weapon on appellant's person, the officers did retrieve a ten millimeter handgun from behind the front passenger seat. ²

The officers discovered that appellant had a substantial criminal record, including several felonies. On March 27, 1990, appellant was charged in one count of a multiple-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). ³ The indictment also alleged that appellant had been convicted of three prior felonies in the Superior Court of the District of Columbia: On August 31, 1973, he was convicted of one count of assault with intent to commit robbery and two counts of robbery; on July 2, 1975, he was convicted of robbery; and on May 10, 1976, he was convicted of assault on a police officer while armed. In light of these three prior convictions, the indictment charged appellant with violation of § 924(e)(1), subjecting appellant, if convicted, to a mandatory minimum sentence of fifteen years imprisonment. ⁴

A. The "Violent Felony"

Appellant moved to strike the portion of the indictment invoking § 924(e)(1) on the grounds that the 1975 robbery conviction was not a "violent felony." ⁵ Appellant had been convicted of robbery under section 22-2901 of the D.C.Code. ⁶ On May 14, 1990, the district court below denied appellant's motion and concluded that the 1975 offense was a "violent felony." See United States v. Mathis, 739 F.Supp. 15 (D.D.C.1990). The district court interpreted section 22-2901 as requiring the government to prove "force or violence" as a necessary element of the offense. The court also acknowledged that cases interpreting this D.C. statute support the conclusion that "pickpockets have been convicted of robbery under section 22-2901, rather than of the lesser offense of larceny, for stealthy grabs at property from a victim's pocket where the victim was totally unaware." Id. at 19 (citing Spencer v. United States, 116 F.2d 801 (D.C.Cir.1940), and Turner v. United States, 16 F.2d 535 (D.C.Cir.1926)).

The district court emphasized that it did not base its decision that the 1975 robbery conviction was a "violent felony" on the underlying facts of that conviction. Relying on United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988), and United States v. Headspeth, 852 F.2d 753 (4th Cir.1988), the court concluded that "[i]n deciding whether an offense is a 'violent felony' under the definition in subsection (i) of § 924(e)(2)(B), a court must examine the statute of the offense and determine whether it has 'as an element' the use of force; the court should not examine the actual conduct underlying the offense." Mathis, 739 F.Supp. at 17 (emphasis in original). ⁷

B. The Guilty Plea

At the motions hearing prior to the district court's ruling of May 14, 1990, appellant argued that he was entitled to receive "credit" for time he had served in prison in connection with a murder charge for which he was ultimately acquitted. ⁸ The following colloquy occurred:

THE COURT: Well, I can give you an answer on that in this way and it will have to be this way.

MR. MUNDY: Yes, sir.

THE COURT: Until I have, A, a conviction, if I have one, and B, I have a pre-sentence report I can do no more than to say to you that I'll make some allowance. You can be sure, however, it will not be an allowance that doesn't [sic] obviate punishment for this offense if there's a conviction.

MR. MUNDY: I understand, Your Honor.

THE COURT: And that's about the best I can say to you at this stage, but I do believe assuming that the Government confirms in due course the facts that you've recited and which I've accepted, that some allowance is appropriate and I'll have to weigh that in my discretion in the light of everything else that I then know, if we come to that point.

MR. MUNDY: All right, sir.

THE COURT: So that's where that stands and we'll just leave it that way.

Transcript (D.D.C. May 9, 1990) at 7-8.

On September 4, 1990, the day before trial was to commence in the case, appellant's counsel once again inquired about the court's intentions:

MR. MUNDY: Your Honor, just so the court, and I'm not asking for any declaratory ruling or advice from the court on this but the problem comes to this, Mr. Mathis is faced with and, of course, the plea offer made to him is for an offense that normally carries the mandatory minimum of 15 years. We've presented to the court questions with respect to certain reductions that we feel he's entitled to below the mandatory minimum of credit and the most principal of these was the fact that he served seven [sic] and a half years in prison based on the prosecutorial misconduct of the prosecutor in that case and I've made the record available to the court, the transcript, and--

THE COURT: It is, but as I've told you that's a matter of--for further discussion at sentencing.

MR. MUNDY: Yes, sir.

Transcript (D.D.C. Sept. 4, 1990). Later, in response to counsel's question about the availability of the two-point reduction for acceptance of responsibility should appellant decide to plead, the court said the following:

THE COURT: Well, as that matter was briefly mentioned to me before I felt it was a question for sentence and not the trial.

MR. MUNDY: Yes, sir, I know.

THE COURT: But from the terms of the statute it would appear that there be [sic] no minimum but simply a flat sentence under Title 18; that that would deprive anyone who has three prior convictions of any opportunity to raise the two percent or whatever it is, particularly because the statute also is quite severe in saying that the sentence cannot be in any way suspended or altered. It's a mandatory sort of figure.

Id. at 35.

On September 5, 1990, instead of going to trial, appellant pled guilty to the superseding indictment charging him with possession of a firearm and ammunition in violation of § 922(g)(1). ⁹ During his advice to the defendant, as required by Rule 11(c) of the Federal Rules of Criminal Procedure, the trial judge reiterated:

THE COURT: You understand this case is governed by the Sentencing Guideline provisions. Has that been explained to you by Mr. Mundy?

THE DEFENDANT: Yes, sir.

THE COURT: And we'll get a--we will get a computation made of various guidelines which the court will examine in determining what the sentence is going to be. You'll have a chance to correct or change anything that is said. I want you to realize two things about this matter that under the rulings that the court has made there is a minimum requirement here that the court is obliged to impose and that is a sentence of 15 years with no parole. Do you understand that?

THE DEFENDANT: Yes, I understand.

Transcript (D.D.C. Sept. 5, 1990) at 16.

On November 16, 1990, appellant appeared before the district court for sentencing. Appellant's counsel argued that, even with the mandatory minimum sentence, the district court was permitted to give appellant credit for "time served" on the charge for which he was acquitted:

So what I'm saying is then if the court feels that this is a close question the only way to protect the interests of Mr. Mathis in case there's going to be a later development in the law within the period of time that the Government can appeal, the only way the Government can protect the interests of Mr. Mathis is to give him the mandatory minimum and give him credit for six and a half years against it.

If the court is in error about that I'm sure the Government will get the Court of Appeals to correct it. If there's any development in the law after...