U.S. v. Quintero, 88-5547

• Decision Date: 18 April 1989
• Docket Number: No. 88-5547,88-5547
• Parties: 27 Fed. R. Evid. Serv. 1252 UNITED STATES of America, Plaintiff-Appellee, v. Jose Lopez QUINTERO, a/k/a Joe Lopez Quintero, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 107

872 F.2d 107

27 Fed. R. Evid. Serv. 1252

UNITED STATES of America, Plaintiff-Appellee, v. Jose Lopez QUINTERO, a/k/a Joe Lopez Quintero, Defendant-Appellant.

No. 88-5547.

United States Court of Appeals, Fifth Circuit.

April 18, 1989.

John Pinckney, III, San Antonio, Tex., court appointed, for defendant-appellant.

Le Roy Morgan Jahn and Janet E. Bauerle, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., Chris Gober, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge and HIGGINBOTHAM, Circuit Judge, and LITTLE, ^* District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted Jose Lopez Quintero on two separate counts for being a three-time convicted felon in possession of a firearm, in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1). The trial judge sentenced Quintero to consecutive twenty year prison terms on each count pursuant to Sec. 924(e)(1). For the reasons stated below, we affirm Quintero's convictions.

I

On May 27, 1987, Officers Bays and Dawson responded to information that an apartment in their area contained heroin. Before obtaining a search warrant, they went to the building to obtain a better description of the apartment. The officers spotted Quintero and two others leaving the apartment. They identified themselves as officers and asked the three to stop. Two stopped, but Quintero continued to walk rapidly toward a truck parked nearby. Officer Bays again asked Quintero to stop and followed him to the truck. As Quintero rounded the side of the truck, he put his hand in his pocket. Officer Bays immediately grabbed Quintero's hand, and discovered heroin in Quintero's pocket. Quintero was arrested and advised of his Miranda rights. After obtaining a search warrant, the officers searched the apartment and discovered heroin, drug paraphernalia, and two rifles. When Officer Bays asked who owned the weapons, Quintero responded that they were his. Quintero later signed a written statement acknowledging possession and ownership of the rifles.

On October 13, 1987, Officers Delgado and Myers were conducting surveillance to locate a suspect named Leroy Garcia. The officers observed Quintero, who they believed to be Garcia, enter a car and drive away. The officers followed to determine whether the driver was Garcia. The driver attempted to flee, hitting a parked car and jumping a curb in the process. A chase ensued. When the officers apprehended Quintero, they discovered a gun on the floor of the car. After advising Quintero of his Miranda rights, Officer Delgado asked Quintero who owned the weapon. Quintero admitted that the weapon was his.

At the time of these incidents Quintero had two prior convictions in Texas for burglary with intent to commit theft and one prior conviction in Michigan for assault with intent to rob while armed.

Quintero was indicted on two separate counts for being a three-time convicted felon in possession of a firearm, in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1). Section 922(g)(1) prohibits a convicted felon from possessing a firearm. Section 924(e)(1) mandates a fifteen year minimum sentence for those who violate Sec. 922(g) and have three prior convictions for "violent felonies." Quintero moved to dismiss those portions of the indictment alleging a separate violation of Sec. 924(e)(1) on grounds that it was merely a sentence enhancement provision. He argued that the indictment failed to allege an offense, and that the reference to his three prior felony convictions was prejudicial. He offered to stipulate that he had one prior felony conviction, since that was an element of the Sec. 922(g)(1) charge which had to be proven at trial. He argued that the additional felony convictions should be presented to the court after trial, since they were relevant only for purposes of sentencing. The trial court denied Quintero's motion, construing Sec. 924(e)(1) to create a separate offense and ruling that his three prior felony convictions were an essential element of that offense to be pled in the indictment and proven at trial. The court also denied Quintero's motion to sever the counts of the indictment, and his motion in limine to prohibit the government from referring to his possession of heroin at trial.

Quintero was convicted on both counts after a jury trial. The trial judge sentenced Quintero to two consecutive twenty year prison terms pursuant to Sec. 924(e)(1). Quintero's subsequent motions for judgment of acquittal, new trial and in arrest of judgment were all denied.

II

On appeal, Quintero contends that the trial court erred by denying his motion to dismiss those portions of the indictment alleging separate violations of Sec. 924(e)(1). He contends that the indictment failed to allege an offense and that the reference to his three prior felony convictions deprived him of a fair trial. Quintero also argues that the trial court erred by refusing to sever the counts of the indictment and by denying his motion in limine to prohibit the government from referring to his possession of heroin at trial. Finally, Quintero argues that his two Texas burglary convictions do not qualify as predicate offenses that trigger sentence enhancement under Sec. 924(e)(1).

We first address Quintero's contention that the trial court erred by refusing to dismiss the Sec. 924(e)(1) charges from the indictment.

Section 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

18 U.S.C. Sec. 924(e)(1) (Supp.1988). ¹

Until recently, we had not determined whether Sec. 924(e)(1) created a separate offense or was a sentence enhancement provision. In United States v. Davis, 801 F.2d 754, 755 (5th Cir.1986), we held that the antecedent statute to Sec. 924(e), 18 U.S.C. App. Sec. 1202(a) (repealed), created a separate offense. ² We explained that Sec. 1202(a) lacked certain common indicia of sentence enhancement provisions: (1) it did not predicate increased punishment upon conviction under another statutory provision; (2) it did not derive its penalty as a multiplier of another statutory provision; and (3) it was not titled as a sentencing provision nor did it set out procedures for the sentencing hearing. Id. at 755-56. We vacated Davis' sentence because his three prior convictions were not separately alleged in the indictment and proven at trial.

In considering Quintero's motion, the trial court faced a difficult choice. If Sec. 924(e)(1) created an independent offense, Quintero's three prior convictions were an essential element that had to be pled in the indictment and proven in the liability portion of the trial. However, if Sec. 924(e)(1) were a sentence enhancement provision, evidence of the additional convictions would be unnecessary and prejudicial. While recognizing that our decision in Davis did not definitively establish the status of the statute as amended, the court nevertheless concluded that Sec. 924(e)(1) created a separate offense.

Uncertainty about the status of Sec. 924(e)(1) has since been resolved. In United States v. Affleck, 861 F.2d 97 (5th Cir.1988), we held that Sec. 924(e)(1) did not create a separate offense but was merely a sentence enhancement provision. We explained that the 1986 amendments to former Sec. 1202(a) made clear that the purpose of Sec. 924(e)(1) was "to provide enhanced punishment for those persons convicted under Sec. 922(g) who also have three previous felony convictions." Id. at 99. Accord United States v. Dickerson, 857 F.2d 414, 417 (7th Cir.1988).

In hindsight, the trial court erred by denying Quintero's motion to dismiss those portions of the indictment charging him with violating Sec. 924(e)(1). While the Sec. 922(g)(1) charge required the government to establish that Quintero had one prior felony conviction, the additional felony convictions were not an element of the offense charged and should not have come before the jury. They were pertinent only for purposes of sentencing under Sec. 924(e)(1). We must determine whether this error requires reversal of Quintero's convictions.

Quintero first contends that the indictment, charging him with violations of both Secs. 922(g)(1) and 924(e)(1) in each count, failed to charge an offense. The test for determining whether an indictment is sufficient "is whether it contains the essential elements of the offense so that it fairly informs the defendant of the charges against him and adequately enables the defendant to be protected against further prosecution for the same offense." United States v. Campbell, 685 F.2d 131, 132 (5th Cir.1982). See also Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Mouton, 657 F.2d 736, 739 (5th Cir.1981). "Surplusage in an indictment may generally be disregarded where the charge is not materially broadened and the accused is not misled." United States v. Trice, 823 F.2d 80, 89 n. 8 (5th Cir.1987).

The Seventh Circuit recently addressed this issue, upholding the conviction of a defendant against his claim that the one count indictment, which alleged violations of both Secs. 922(g)(1) and 924(e)(1), failed to charge an offense. United States v. Lowe, 860 F.2d 1370, 1381 (7th Cir.1988). The court held that:

Under Rule 7(c) of the Federal Rules of Criminal Procedure, a miscitation such as the reference to Sec. 924(e) is harmless...