U.S. v. Owens

• Decision Date: 15 February 1994
• Docket Number: No. 91-5463,91-5463
• Citation: 15 F.3d 995
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry H. OWENS, a/k/a Bessellieu, Jamesea, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 995

15 F.3d 995

UNITED STATES of America, Plaintiff-Appellee, v. Harry H. OWENS, a/k/a Bessellieu, Jamesea, Defendant-Appellant.

No. 91-5463.

United States Court of Appeals Eleventh Circuit.

Feb. 15, 1994.

Scott T. Trell, Miami, FL, for defendant-appellant.

Dawn Bowen, Linda Collins Hertz, Lisa T. Rubio, Miami, FL, for plaintiff-appellee.

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

Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Harry Owens was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1), and was given an enhanced sentence pursuant to the provisions of the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e). On appeal, Owens raises three issues challenging both his conviction and sentence: (1) that his civil rights have been restored to him under Florida law, rendering his conviction void; (2) that imposition of an enhanced sentence in this instance conflicts with the legislative goals of Sec. 924(e); and (3) that the district court erred in determining that it did not have the discretion to review the constitutionality of his prior convictions used to enhance his sentence under Sec. 924(e). We affirm both the conviction and sentence.

I.

Owens was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). ¹ Prior to trial, the government filed notice of its intent to rely on the penalty enhancement provisions set forth in Sec. 924(e) should Owens be convicted. In response, Owens filed a motion requesting that the statute be found inapplicable to his case under United States v. Balascsak, 873 F.2d 673 (3rd Cir.1989), cert. denied, 498 U.S. 864, 111 S.Ct. 173, 112 L.Ed.2d 138 (1990). ² At the hearing on Owens's motion, Owens also challenged his previous convictions, contending that he had not committed all of the criminal acts to which he had pled guilty. ³ Owens argued that he had been fourteen years old at the time of his convictions, that he had pled guilty at the urging of his public defender and without consulting his parents, and that no adult had been present at the time of his plea. The district court declined to rule on the motion at that time, suggesting that the request to review the constitutionality of the prior convictions would be more properly resolved in a habeas corpus petition. At sentencing Owens again raised the issue of his prior convictions, arguing that the plea colloquy underlying those convictions had been inadequate and that his guilty pleas were therefore unknowing and involuntary pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). ⁴ In support of this contention, Owens pointed to the cursory and abbreviated nature of the proceeding in which the pleas had been accepted, and noted that he never formally entered a guilty plea to any charge on the record. The district court again stated that Owens's collateral attack on his prior convictions should be addressed in a habeas corpus proceeding, and determined that it had neither the authority nor the discretion to examine the constitutionality of Owens's prior convictions. The court concluded that Sec. 924(e) was applicable to Owens, and sentenced him to imprisonment for 180 months, to be followed by a five-year term of supervised release.

II.

The statute under which Owens was indicted and convicted, 18 U.S.C. Sec. 922(g)(1), requires that the defendant have had a prior felony conviction. A conviction is defined as follows:

What constitutes a conviction ... 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 had his 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. Sec. 921(a)(20) (1992). Florida law provides that civil rights may be restored to an individual who has:

(1) Received a full pardon from the board of pardons,

(2) Served the maximum term of the sentence imposed upon him, or

(3) Been granted his final release by the Parole Commission.

Fla.Stat. Sec. 940.05 (1988). Based on this statute, Owens contends that because he served his entire sentence on the previous convictions, his civil rights should be deemed automatically restored. ⁵

Florida Statute Sec. 944.292 provides that "[u]pon conviction of a felony ... the civil rights of the person convicted shall be suspended in Florida until such rights are restored by full pardon, conditional pardon, or restoration of civil rights granted pursuant to Sec. 8, Art. IV of the State Constitution." The referenced constitutional provision confers upon the governor discretion to grant full or conditional pardons and to restore civil rights. Florida decisional law dictates that the restoration of civil rights resides within the discretionary power of the governor or the Board of Pardons and Paroles. See, e.g., Williams v. State, 402 So.2d 78, 79 (Fla.Dist.Ct.App.1981) ("What appellant actually received was a partial restoration of his civil rights rather than a complete restoration. Under the governor's discretionary clemency power, appellant was restored to all other preconviction rights except the authority to possess or own a firearm."); Thompson v. State, 438 So.2d 1005, 1006 (Fla.Dist.Ct.App.1983) ("[T]he right to possess a firearm is a civil right and ... a partial restoration of civil rights such as defendant here received is within the governor's discretionary power of clemency under Article IV, Section 8, Florida Constitution."). ⁶ Owens's statements regarding whether he has made any affirmative attempt to receive an official restoration of his civil rights are ambiguous at best; in fact, he apparently concedes that he is unsure of the extent to which such an application has been executed or whether it is currently being considered. Because Florida courts uniformly have held that the restoration of civil rights to a prisoner upon release from state custody is neither automatic nor pro forma, but is solely within the province of the governor's discretionary function, and in view of Owens's failure to provide this court with any evidence that such a restoration of rights has already occurred, Owens's challenge to his conviction on this basis must fail.

III.

Owens advances two reasons why Sec. 924(e) is inapplicable to his conviction. First, Owens asserts that he is not the type of defendant to which the Armed Career Criminal Act was intended to apply due to his youth at the time the earlier criminal acts were committed, and urges this court to permit him to be resentenced under the Sentencing Guidelines. Second, Owens suggests that his prior felony convictions, which were all resolved in one proceeding, should not be counted as three separate convictions. Owens submits that the circuits have reached "wildly varying results" in construing the question of what constitutes a "criminal conviction" under the Act, and he proposes that this court adopt a "new approach."

The plain language of the Armed Career Criminal Act reveals that Owens's first contention regarding the inapplicability of the Act to his juvenile convictions is without merit. 18 U.S.C. Sec. 924(2)(c) specifies that "the term 'conviction' includes a finding that a person has committed an act of juvenile delinquency involving a violent felony." Congress thus explicitly includes juvenile offenses within the purview of its definition of "prior convictions" under the Act.

Owens's second contention, that the divergence of views on the definition of a single "criminal conviction" under the Act militates in favor of this court's adoption of a "new approach," is not supported by this circuit's precedent. This court has held that "section 924(e) requires three previous convictions where the predicate offenses were 'committed on occasions different from one another.' The statute does not require separate indictments; the final conviction under section 922(g) must merely be preceded by three convictions for crimes that are temporally distinct." United States v. Howard, 918 F.2d 1529, 1538 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2240, 114 L.Ed.2d 482 (1991); see also United States v. Sweeting, 933 F.2d 962 (11th Cir.1991). ⁷ Contra, United States v. Balascsak, 873 F.2d 673, 683 (3rd Cir.1989), cert. denied, 498 U.S. 864, 111 S.Ct. 173, 112 L.Ed.2d 138 (1990) ("We could hardly attribute to Congress the intention of branding someone a career criminal offender who, for example, committed several separate felonies during a single drunken spree, with no time to sober up and reconsider between the separate incidents."). Here, the felonies for which Owens was convicted each occurred on a different date, although they were all resolved in one proceeding. In view of this court's previous decisions holding that convictions need only be temporally distinct to be counted as single, separate convictions, Owens's enhanced sentence was not in conflict with Eleventh Circuit interpretation of the legislative intent of the Armed Career Criminal Act. Contrary to Owens's suggestion, the Act was intended to encompass defendants such as Owens.

IV.

The district court enhanced Owens's sentence for his Sec. 922(g) conviction under the Armed Career Criminal Act because it found that he had three prior violent felony convictions. Owens argues that at sentencing the court erred in refusing to entertain his challenge to his prior convictions as constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). ⁸ Owens's contention gives rise to an inquiry into whether a district court has the discretion to review the constitutionality of prior...