U.S. v. McGatha
| Decision Date | 16 January 1990 |
| Docket Number | No. 88-7771,88-7771 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ronald Dale McGATHA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ralph L. Brooks, Anniston, Ala., for defendant-appellant.
Frank W. Donaldson, U.S. Atty., Anthony Joseph, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, Chief Judge, CLARK, Circuit Judge and SMITH *, Senior Circuit Judge.
Appellant, Ronald Dale McGatha, appeals from a United States District Court judgment which imposed a sentence of 15 years imprisonment pursuant to 18 U.S.C. § 924(e)(1), following a plea of guilty on a charge of possession of firearms by a felon under 18 U.S.C. § 922(g)(1). The judgment of the District Court, based on its conclusion that 18 U.S.C. § 924(e)(1) is a sentence enhancement statute, is affirmed.
The principal question presented is one of first impression in this circuit: Whether 18 U.S.C. § 924(e)(1) creates a new federal offense or whether it merely enhances the penalty for a pre-existing federal offense, 18 U.S.C. § 922(g).
If the District Court erred in ruling that enhancement does apply, issues arise whether appellee had the burden of proving beyond a reasonable doubt the commission by appellant of three prior violent felonies, whether appellee carried that burden, and, in any event, whether the Trial Court violated appellant's constitutional rights by increasing the level of punishment beyond the level permitted for the offense charged in the indictment.
The facts material to this appeal are as follows: On September 30, 1988, the Grand Jury for the Northern District of Alabama charged Ronald Dale McGatha in a two count indictment. Both counts one and two charged appellant, a previously convicted felon, with possession of a firearm in violation of Title 18, United States Code. 1
On November 20, 1988, the United States filed written notice with the District Court for the Northern District of Alabama of the government's intention to seek enhanced sentencing pursuant to 18 U.S.C. § 924(e)(1). The pretrial notice listed in detail appellant's five previous felony convictions deemed to justify the requested penalty enhancement. 2
Appellant and his counsel appeared before District Court Judge J. Foy Guin, Jr., on December 1, 1988, and pleaded guilty to count two of the indictment. 3 The United States then moved to dismiss count one and other pending actions against appellant under the terms of a previously established plea agreement. Judge Guin accepted the plea and set a sentencing hearing date for argument on the issue of enhanced punishment.
At that argument, appellant asserted that the enhanced penalty of 18 U.S.C. § 924(e)(1) created a new, separate offense which must be alleged in the indictment and proved at trial beyond a reasonable doubt. The United States countered that § 924(e)(1) is merely a sentence enhancement provision; evidence of additional convictions relates only to sentencing and would be highly prejudicial if presented for jury consideration. After argument, the United States presented certified copies of appellant's prior felony convictions for the court's consideration in determining an enhanced sentence under § 924(e)(1). Judge Guin adopted the Seventh Circuit's reasoning in United States v. Pirovolos, 4 in which it was held that the statute was a sentence enhancement provision, and sentenced appellant to the statutory minimum 15 years imprisonment.
Ronald McGatha was indicted under 18 U.S.C. § 922(g) 5 for the possession of firearms by a convicted felon. The penalty for violation of § 922(g) is a fine of not more than $5000, or imprisonment for not more than five years, or both. 6 Section 924(e)(1), however, establishes a fine of not more than $25,000 and a minimum sentence of 15 years without parole for those who violate § 922(g) and have three previous felony convictions. 7
Appellant requests that his sentence be vacated and the case be remanded for resentencing within the permissible range for the offense for which he pleaded guilty, violation of § 922(g). Appellant urges two grounds for remand and resentencing:
First, appellant argues that § 924(e)(1) establishes an independent federal offense, an element of which is three previous felony convictions. The authorities relied upon for this proposition are United States v. Davis 8 and United States v. Brewer. 9
Second, appellant reasons that the new crime embodied in these previous felony convictions has the effect of imposing greater or additional punishment beyond the minimum permitted for the crime charged in the indictment (violation of § 922(g)), so § 924(e)(1) must be considered a separate offense under the Supreme Court's reasoning in McMillan v. Pennsylvania. 10 Since this separate offense was not set forth in the indictment, it follows under the appellant's argument that the district court judge's application of § 924(e)(1) as a sentence enhancement provision violates the due process clause of the Constitution. 11 Under the rationale of McMillan, appellant questions the district court judge's authority constitutionally to increase the level of punishment beyond the level permitted for the crime charged in the indictment and proved at the liability phase of the trial. 12
If the statute constitutes a separate offense and this offense has not been set forth in the indictment, appellant's due process rights have been violated. 13 In addition, if the statute creates a separate federal offense, the government carries the burden of proving each element of the offense. 14 Failure to comply with these traditional principles of notice and proof of crimes would preclude the use of § 924(e)(1) to impose enhanced penalties at the sentencing hearing. 15
At oral argument, the United States stated that its position is in fact that § 924(e) is a sentence enhancement provision rather than a substantive offense, so the prior convictions need not be formally set forth in the indictment. While the prior convictions were not mentioned in the indictment, the appearance of § 924 along with § 922(g) in the indictment gives the impression that it is indeed an additional substantive offense under which the defendant is charged. This apparently contradictory practice may be attributable to conflicting opinions rendered by the circuits concerning the substantive nature of the statutory forerunner of § 924(e), the Armed Career Criminal Act of 1984 (ACCA), originally codified at 18 U.S.C.App. § 1202(a). To eliminate further confusion and determine the reach of this criminal statute, the language, structure, and legislative history of § 924 and its predecessor § 1202(a) must be briefly examined to determine the Congressional intent that accompanied their enactment. 16
Much of the conflict over the nature of the Armed Career Criminal Act of 1984 (ACCA), 17 arose prior to the Congressional repeal and reenactment of its provisions in §§ 922(g) and 924(e)(1) of the United States Code. 18 The original House and Senate legislation in fact proposed enactment of a provision creating a new federal crime of carrying a firearm where a defendant has two prior Federal or State felony convictions for robbery or burglary. 19
The initial ACCA legislation was later abandoned and the proposed new federal offense rejected. Although Congress recognized a need to increase the participation of the Federal law enforcement system in efforts to curb the unlawful activities of career criminals, serious federalism concerns arose as to the appropriateness of prosecuting local burglaries and robberies under a Federal statute. 20 A substitute bill, H.R. 6248, was introduced to accomplish the same penal goals without expanding the federal criminal law into existing state criminal law. The motivation for the substitution of H.R. 6248 and the approach taken by the bill were explained in the accompanying House Report: . 21
Unfortunately, the House Report was not entirely without ambiguity. The Sectional Analysis noted: " § 2 amends 18 U.S.C. App. § 1202(a) by adding a new offense ...". 22 The dissenting judges in Hawkins and Brewer seized upon this statement as support for their view that the ACCA creates a new federal crime. This position overlooks the federalism concerns expressed by the sponsoring legislators and cannot offset the numerous direct references to penalty enhancement in the House Report. Such an expansive reading of a single paragraph in the House Report is insufficient to support the view that the ACCA creates a separate federal offense. 23
Any lingering doubts as to the congressional intention concerning the 1984 substitute legislation were dispelled by expressions from the political leadership in both the House and Senate. Representative Hughes, the principal sponsor of the 1984 substitute legislation, stated: "This bill would enhance the sanctions of 18 U.S.C. Section 1202(a) with a 15 year maximum sentence if the defendant has been convicted three times of felonies for robbery or burglary." 24 During the Senate debates, principal sponsor Senator Specter echoed the sentiments of the House leadership: ...
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