U.S. v. McLemore, 93-6317

• Decision Date: 17 August 1994
• Docket Number: No. 93-6317,93-6317
• Citation: 28 F.3d 1160
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles R. McLEMORE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1160

28 F.3d 1160

UNITED STATES of America, Plaintiff-Appellant, v. Charles R. McLEMORE, Defendant-Appellee.

No. 93-6317.

United States Court of Appeals, Eleventh Circuit.

Aug. 17, 1994.

Kristi D. Lee, Asst. U.S. Atty., Mobile, AL, Cynthia A. Young, U.S. Dept of Justice, Crim. Appellate Section, Washington, DC, for appellant.

Paul Brown, Moore, Boller & Brown, Mobile, AL, for appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before ANDERSON and BIRCH, Circuit Judges, and CONWAY ^*, District Judge.

BIRCH, Circuit Judge:

The United States challenges the district court's grant of the motion to arrest judgment of appellee Charles McLemore. Applying the rule of lenity, the district court granted McLemore's motion, holding that the statute under which McLemore was charged is ambiguous as to whether it applies to McLemore's conduct. The government argues that the statute was not ambiguous and, therefore, the rule of lenity is inapplicable and McLemore's conviction should stand. Because we find that the statute is ambiguous as it pertains to McLemore's conduct, we affirm the district court's grant of McLemore's motion for arrest of judgment.

I. BACKGROUND

On December 16, 1992, a federal jury convicted McLemore of one count of transferring a firearm that he knew would be used to commit a crime of violence, in violation of 18 U.S.C. Sec. 924(h). ¹ The crime of violence was solicitation to commit murder. Following this conviction, McLemore renewed his previous challenge to the indictment, asserting that it was invalid as it failed to allege, and the government failed to prove, a sufficient interstate commerce nexus. The district court refused to accept McLemore's argument that it was beyond the power of Congress to regulate purely intrastate transfers of firearms used to commit state-law crimes. It went on, however, to examine the scope of the statute, stating:

Under the government's reading of the statute, the underlying crime of violence can be a state offense. However, the statute does not explicitly state that it applies to state crimes of violence, nor does it give a commerce clause based justification for why it would apply to a state crime of violence. The term "crime of violence" is ambiguous because it could reasonably be read to include both state and federal crimes of violence or just federal crimes of violence. By reference to subsection (c)(2), subsection (h) applies to only federal drug offenses. Thus, the government's reading of the statute is that it applies to state and federal crimes of violence, but only federal drug offenses. The defendant's reading is presumably that it applies to only federal offenses. Neither interpretation would be contrary to the language of the statute.

815 F.Supp. 432, 434 (S.D.Ala.1993) (citation omitted). Based on an analysis of the language and history of section 924(h), other subsections of section 924, and other portions of title 18, the district court concluded that it was unclear whether Congress intended to include a state law crime of violence as a basis for a violation of section 924(h). The district court, therefore, applied the rule of lenity and, pursuant to Federal Rule of Criminal Procedure 34, dismissed the indictment as failing to allege conduct that would constitute a violation of section 924(h).

McLemore does not dispute that the underlying crime, solicitation to commit murder, meets the elemental definition of a crime of violence provided in section 924(c)(3). The sole issue is whether or not section 924(h) is ambiguous in its intention to allow a state-law crime to serve as a predicate "crime of violence" for prosecution under section 924(h). ²

II. DISCUSSION

A. Language of the Statute

This appeal presents a difficult question of statutory interpretation, which requires us to look not just at the language of sections 924(h) and 924(c)(3), but also at the legislative history and the structure and intent of section 924 and title 18 generally. The statutory language is the starting point for interpreting the meaning of a statute. Ardestani v. INS, 502 U.S. 129, ----, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991). In interpreting the language of a statute, however, we do not look at one word or one provision in isolation, but rather look to the statutory scheme for clarification and contextual reference. Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2056, 124 L.Ed.2d 138 (1993).

The government argues that the language of the statute is clear and unambiguous on its face and that we need go no farther. Specifically, the government asserts that "[t]he plain language of subsection 924(h) proscribes the transfer of firearms for use in specified federal drug offenses and in both state and federal felony crimes of violence." Appellant's Brief at 12. Unfortunately, the language of sections 924(h) and 924(c)(3) is not so clear. Section 924(c)(3) begins its definition of "crime of violence" with the language, "[f]or purposes of this subsection." 18 U.S.C. Sec. 924(c)(3). This language necessarily relates to section 924(c). Section 924(c)(1) employs the term "crime of violence" in creating a penalty for the use or carrying of a firearm "during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States." Id. Sec. 924(c)(1). Hence, the definition of "crime of violence" contained in section 924(c)(3) includes a reference to the federal limitation contained in section 924(c)(1). ³ We thus find that McLemore's reading of the statute "is no less plausible than the Government's." Bifulco v. United States, 447 U.S. 381, 389, 100 S.Ct. 2247, 2253, 65 L.Ed.2d 205 (1980). The language of section 924(h), therefore, does not clearly include or exclude state-law crimes of violence.

B. Legislative History and Statutory Scheme

When a statute's language is not unambiguous on its face, we look to the legislative history and the statutory scheme. See Moskal v. United States, 498 U.S. 103, 109-13, 111 S.Ct. 461, 466-68, 112 L.Ed.2d 449 (1990); Bifulco, 447 U.S. at 389-91, 100 S.Ct. at 2253-54; United States v. Bass, 404 U.S. 336, 343-47, 92 S.Ct. 515, 520-22, 30 L.Ed.2d 488 (1971). Both parties and the district court concede that there is virtually no legislative history directly applicable to section 924(h). ⁴ The only direct remark on sections 924(g) and (h), which were passed together and, therefore, are properly analyzed together, is a remark by Senator Biden, who said: "This section creates a new offense, punishable by imprisonment for 10 years, of traveling in interstate commerce and acquiring or transferring a firearm with the intent to commit a crime of violence or other serious federal offense including any drug offense." 134 Cong.Rec. 17,360, 17,363 (1988) (emphasis added). The government seeks to downplay Senator Biden's use of the term "other serious federal offense" as being merely "an offhand reference." Appellant's Brief at 17. In addition, the government contends that this language more closely tracks section 924(g), not section 924(h), and, therefore, it should not be considered influential in an analysis of 924(h).

The content, meaning, and influence of Senator Biden's remarks are not particularly helpful to either party. It is true, as the government argues, that if he intended to say that sections 924(g) and (h) were limited to federal crimes, such proposition is difficult to square with the language of section 924(g), which includes as an offense the violation of certain state laws as delineated in 18 U.S.C. Sec. 1961(1). However, it does seem to intimate an emphasis on federal crimes, at least when the underlying crime is not specifically identified as a state-law crime. In any event, the legislative history of section 924(h) is not dispositive. ⁵

Finally, we look at the statutory scheme to see if it assists us in interpreting the language of section 924(h). Unfortunately, the remainder of section 924 does not resolve the issue. Section 924(b) defines as a crime the movement of firearms in interstate commerce with the intent to use such firearms in an "offense punishable by imprisonment for a term exceeding one year." 18 U.S.C. Sec. 924(b). That term is specifically defined in section 921(a), and it is clear that it was intended to include some state-law crimes. See 18 U.S.C. Sec. 921(a)(20) (specifically excluding certain state offenses from the term, thereby implicitly including others). That term, however, is not the one at issue in this case, and it includes a different definition and scope than the term "crime of violence." At best, section 924(b) shows that Congress, in passing section 924, was not concerned with firearm transactions solely in connection with federal crimes.

Subsection 924(c)(1), as discussed above, is limited in scope to "crime[s] of violence ... for which [a defendant] may be prosecuted in a court of the United States." 18 U.S.C. Sec. 924(c)(1). That explicit federal crime limitation, however, is notable because it is the only federal nexus involved in that section. Unlike section 924(b), which required the firearm to move in interstate commerce, section 924(c)(1) requires only possession or use during certain federal crimes. Likewise, there is no interstate commerce or other federal nexus involved in section 924(h), save for the possible requirement that the underlying crime be federal in nature.

Section 924(g), passed along with section (h) as part of the Anti-Drug Abuse Act of 1988, is also instructive in this regard. That section specifically includes as predicate offenses certain state-law crimes, as defined in section 1961(1). Section 924(g), however, like section 924(b), explicitly requires the firearm in question to move in interstate commerce. The statutory scheme and its employment of a federal nexus in every section except section 924(h), if it is interpreted to include state-law crimes of violence,...