U.S. v. Raynor

• Decision Date: 06 August 1991
• Docket Number: 90-5032 and 90-5042,Nos. 90-5008,s. 90-5008
• Citation: 939 F.2d 191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Randolph RAYNOR, a/k/a Randy, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harvey Bartlett RAYNOR, a/k/a Bart, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dana Anthony HUMBARGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 191

939 F.2d 191

UNITED STATES of America, Plaintiff-Appellee, v. James Randolph RAYNOR, a/k/a Randy, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Harvey Bartlett RAYNOR, a/k/a Bart, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dana Anthony HUMBARGER, Defendant-Appellant.

Nos. 90-5008, 90-5032 and 90-5042.

United States Court of Appeals Fourth Circuit.

Argued Feb. 8, 1991.

Decided July 11, 1991.

As Amended Aug. 6, 1991.

Vernon F. Daughtridge, Wilson, N.C., for appellant J.R. Raynor.

William Woodward Webb, Broughton, Wilkins & Webb, P.A., Raleigh, N.C., for appellant Humbarger.

Vicki S. Marani, U.S. Dept. of Justice, Washington, D.C., argued (Margaret P. Currin, U.S. Atty., R. Daniel Boyce, Asst. U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.

Wayne Eads, Raleigh, N.C., for appellant H.B. Raynor.

Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and SPENCER, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

NIEMEYER, Circuit Judge:

Bart Raynor, his younger brother, Randy Raynor, and Dana Humbarger were charged in 17 counts with various drug and related fire-arms offenses arising from their participation in a cocaine distribution ring. Bart Raynor pled guilty to one drug conspiracy count and two counts for using or carrying a firearm during and in relation to a drug-trafficking offense. He was sentenced to 292 months of imprisonment for the drug conspiracy count; a mandatory, consecutive 60 months for the first firearms count; and a mandatory, consecutive 240 months for the second firearms count--for a total of 592 months. Randy Raynor pled guilty to one drug count and one firearms count and was sentenced to 292 months for the drug count plus 60 months for the firearms count. Dana Humbarger likewise pled guilty to one drug count and one firearms count and was sentenced to 124 months for the drug count plus 60 months for the firearms count. All three defendants challenge their sentences on appeal.

Bart Raynor contends that his sentence on the second firearms count cannot be enhanced to a 240-month mandatory sentence under 18 U.S.C. Sec. 924(c)(1) because of his plea to the first firearms count when both counts are in the same indictment. He also contends that a prior state offense, which was characterized by state law as a misdemeanor, cannot be used to classify him as a career offender, and that the government abused its discretion in refusing to file a motion for a downward departure under U.S.S.G. Sec. 5K1.1.

Randy Raynor contends that a prior state conviction for "breaking and entering" is not a "crime of violence" and therefore should not have been considered in classifying him as a career offender.

Dana Humbarger's appeal, which also raises issues about his sentencing, was filed approximately two and one-half months after entry of judgment, and the government has argued that because the appeal was untimely, we have no jurisdiction to hear it.

For the reasons that follow, we affirm the sentences of Bart and Randy Raynor, and refuse to consider the merits of Humbarger's appeal because it was filed untimely.

CASE NO. 90-5032: BART RAYNOR

I

Bart Raynor's convictions for the two firearms violations arise from his use of firearms during and in relation to two separate drug transactions, one on March 15 and the other on April 27, 1989. He was charged for each in separate counts. When sentencing him, the district judge applied the provisions of 18 U.S.C. Sec. 924(c)(1) to sentence Raynor to a mandatory five-year sentence for the first firearms count and a mandatory twenty-year sentence for the second, both to run consecutively. Raynor argues that the second firearms count should not be enhanced by the sentence on the first when both are in the same indictment.

While this court has not yet addressed this issue, the Eleventh Circuit decided the issue in United States v. Rawlings, 821 F.2d 1543 (11th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). Rawlings was convicted for two separate bank robberies and for use of a firearm in connection with each. Even though the offenses were charged in four counts contained in the same indictment, the court held that Rawlings' second offense for a firearms violation triggered the enhancement provisions of Sec. 924(c). The court rejected Rawlings' argument that the enhancement provision applies only to a defendant who has earlier been charged, convicted and sentenced under a different indictment.

The Rawlings case has been followed by the Sixth, Seventh and Eighth Circuits. See United States v. Nabors, 901 F.2d 1351, 1358 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990); United States v. Bennett, 908 F.2d 189, 194 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990); United States v. Foote, 898 F.2d 659, 668 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 112, 112 L.Ed.2d 81 (1990). We now join those circuits in reaching the same result.

The applicable provisions of 18 U.S.C. Sec. 924(c)(1) provide:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years ....

(Emphasis added.) The plain meaning of the statute supports the conclusion that a conviction on a second firearms count, even though charged in the same indictment as the first, gives rise to the enhanced sentence. The statute directs enhancement for a "second or subsequent conviction." The second conviction is the one that follows the first, either in time or in a number sequence, and the subsequent conviction is any that follows the second, either in time or in a number sequence. The enhancement that is mandated by the statute does not depend on satisfying conditions that the second or subsequent conviction be by reason of a different indictment, or that the sentence be imposed on the first conviction before the enhancement can apply to the second, or that the defendant have served the sentence imposed on the first. To construe the statute with such conditions would interject terms not included, and surely not intended, by Congress. For example, to require separate indictments would have no purpose other than to require the government to perform the meaningless ministerial function of typing and presenting two indictments, instead of one, to the grand jury. As the court in Rawlings observed, "We do not think Congress intended the enhanced penalty for a repeat offender of Sec. 924(c) to hinge on the machinations of the prosecutor." 821 F.2d at 1546. To require a separate sentencing on the first conviction before sentencing on the second would likewise add a meaningless burden and cause undue delay. And to construe the statute to require that the defendant complete his sentence on the first before becoming subject to the enhancement provisions for the second would immunize the defendant from sentencing enhancement for all firearms offenses committed before the defendant was indicted, tried, convicted and sentenced for the first. To include by implication any of these conditions would result in our rewriting the statute, a task not committed to the judiciary.

Bart Raynor argues nevertheless that in reading 18 U.S.C. Sec. 924(c)(1) we should imply the requirement that before he can be convicted of a second offense, the first must become final. He points to 21 U.S.C. Sec. 962 (providing enhancement for "second or subsequent" convictions under statutes prohibiting importation and exportation of controlled substances), which uses the same enhancing language for a "second or subsequent conviction," but which goes on to say:

For purposes of this section, a person shall be considered convicted of a second or subsequent offense if, prior to the commission of such offense, one or more prior convictions of him for a felony ... have become final.

21 U.S.C. Sec. 962(b) (emphasis added). The distinction in the language contained in 21 U.S.C. Sec. 962(b) undercuts Raynor's argument that "second or subsequent" conviction has the same meaning in 18 U.S.C. Sec. 924(c)(1). Section 962(b), which specifically limits enhancement for a second conviction to situations where the first has become final, restricts the application of the definition to Sec. 962 by introducing it with the limitation "[f]or purposes of this section." Congress could have included the same definitional language in Sec. 924(c)(1) if it meant the language there to have the same meaning as that in Sec. 962(b). Its failure to do so leaves the distinction between the two statutes, with Sec. 924(c)(1) applying to broader circumstances.

He also urges that when he is charged for both firearms offenses in a single indictment, he is not given the opportunity to learn from his first offense or to rehabilitate himself, which he argues is the general purpose of recidivist statutes. Although the recidivist statutes to which he refers impose enhancement penalties typically for convictions that are subsequent in time, see, e.g., N.C.Gen.Stat. Sec. 14-7.1 (1990); Md.Crim.Law Code Ann., Art. 27, Sec. 643B(c) (1987), the statute here makes no distinction between second in time or second in a number sequence, revealing the strong public policy of the statute. Our interpretation is consistent with the clear intent of Sec. 924(c) to deter the use of firearms in the commission of crimes and to increase the cost of committing a second offense. The mandatory aspect of the sentences and the enhancement provisions in connection with a second offense reveal the strong policy of encouraging would-be criminals to leave their handguns at home. See Raw...