U.S. v. Rush

• Decision Date: 25 February 1988
• Docket Number: Nos. 86-1811,86-2227,s. 86-1811
• Citation: 840 F.2d 574
• Parties: UNITED STATES of America, Appellee, v. Leroy RUSH a/k/a James Johnson, Appellant. UNITED STATES of America, Appellee, v. Mark Anthony CLOYD, a/k/a Terry J. Francis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 574

840 F.2d 574

56 USLW 2510

UNITED STATES of America, Appellee, v. Leroy RUSH a/k/a James Johnson, Appellant.

UNITED STATES of America, Appellee, v. Mark Anthony CLOYD, a/k/a Terry J. Francis, Appellant.

Nos. 86-1811, 86-2227.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1987.

Decided Feb. 25, 1988.

James Delworth, Asst. Federal Public Defender, St. Louis, Mo., for appellants.

Thomas D. Thalken, Asst. U.S. Atty., Omaha, Neb., for appellee.

Before LAY, Chief Judge, HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

Leroy Rush (No. 86-1811) and Mark A. Cloyd (No. 86-2227) appeal from final judgments entered in the District Court ¹ for the Eastern District of Missouri and the District Court ² for the District of Nebraska, respectively, upon jury verdicts finding them guilty of possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a) (West Supp.1984). ³ Both appeals have been consolidated for en banc consideration of the correct statutory construction of the Armed Career Criminal Act of 1984 (ACCA). ⁴ Rush and Cloyd have each been convicted of felonious robbery or burglary on three previous occasions. In accordance with 18 U.S.C.App. Sec. 1202(a), as amended by the ACCA, the district court sentenced Rush to fifteen years imprisonment and Cloyd to twenty-five years imprisonment. ⁵ For reversal, Cloyd and Rush argue that the district court erred in sentencing them under the ACCA amendment because the amendment is not a sentence enhancement provision, but rather defines a separate offense, of which they were not convicted. Because we conclude that the ACCA amendment to Sec. 1202(a) is a sentence enhancement provision, and not a separate statutory offense, we affirm the judgments of the district court as to both Cloyd and Rush.

In each trial, the jury was instructed that it need only find one prior felony conviction in order to find a person in possession of a firearm guilty of violating 18 U.S.C.App. Sec. 1202(a). Cloyd and Rush submit that the ACCA establishes a separate crime of possession of a firearm by one who has three previous felony convictions. Under this interpretation, proof of two additional convictions is an essential element of the offense which must be found beyond a reasonable doubt by the jury. Cloyd and Rush therefore contend that because they were never properly convicted of this separate and more serious offense, they may not be sentenced under the more severe provisions of the ACCA. The government submits that the ACCA provision merely enhances the penalty provisions of Sec. 1202(a) for those defendants found by the sentencing judge to have three previous robbery or burglary convictions.

The courts of appeals that have considered this issue have reached differing conclusions. In United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987), the Tenth Circuit held that the ACCA "did not create any new federal crime--it only increased the penalty for an already existing federal offense described in Sec. 1202--that crime being the possession of a firearm after being convicted of a felony." Similarly, the Third Circuit concluded that "the members of Congress viewed the Armed Career Criminal Act as a statute providing for an enhanced penalty, and we construe it consistently with that legislative intent." United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.1987) (Hawkins ). The District of Columbia Circuit likewise interpreted the ACCA as merely "enhancing" the otherwise applicable sentencing provisions of Sec. 1202(a). United States v. Jackson, 824 F.2d 21, 22-26 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988) (Jackson ). Most recently, the Ninth Circuit held that the ACCA "is a sentence enhancement, and not a separate statutory offense." United States v. West, 826 F.2d 909, 911 (9th Cir.1987) (West ).

On the other hand, the Fifth Circuit reached the opposite result, concluding that the ACCA is not merely a sentence enhancement provision, but creates a new federal offense. United States v. Davis, 801 F.2d 754, 755-56 (5th Cir.1986) The Sixth Circuit reached the same conclusion in United States v. Brewer, 841 F.2d 667 (6th Cir.1988). See also Hawkins, 811 F.2d at 220 (Rosenn, J., concurring in part and dissenting in part).

The resolution of this question of statutory intent hinges on the intent of Congress. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (Garrett ). In divining congressional intent, we first look to the language and structure of 18 U.S.C.App. Sec. 1202(a), as amended by the ACCA. ⁶ See Garrett, 471 U.S. at 779-82, 105 S.Ct. at 2412-14. Unfortunately, the statute is not a model of clarity.

In some respects, the ACCA amendment resembles a sentence-enhancement provision. Beginning with the phrase "in the case of," the ACCA amendment appears to relate back to the preceding sentence of the statute. While the first sentence lists the classes of persons who are prohibited from receiving, transporting, or possessing firearms, the second sentence seems to do no more than single out a portion of one of these classes for more severe punishment. Additionally, as the Third Circuit noted, "the inclusion of the Armed Career Criminal Act into the same paragraph as the previously enacted section 1202(a)(1) with no division into separate numbers or letters, suggests treatment of the contents as a single offense." Hawkins, 811 F.2d at 218-19. See also West, 826 F.2d at 911; Jackson, 824 F.2d at 23.

On the other hand, the ACCA amendment repeats the possession and commerce elements of Sec. 1202(a)(1) and could stand on its own as an independent separate offense. As the Fifth Circuit pointed out, the ACCA amendment also "lacks other common indicia of sentence-enhancement provisions," such as an explicit reference to a conviction under Sec. 1202(a)(1), a penalty derived as a multiplier of Sec. 1202(a)(1), procedures for a sentencing hearing, or a title identifying the amendment as a sentence enhancement provision. Davis, 801 F.2d at 755-56. Cf. 18 U.S.C. Sec. 3575 (Supp. III 1985) ("Increased sentence for dangerous special offenders" provision with detailed procedures for sentencing hearing); 21 U.S.C. Sec. 849 (1982) ("Dangerous special drug offender sentencing" provision, also containing detailed sentencing procedures).

We find some merit in each of these competing interpretations of the language and structure of Sec. 1202(a). Finding the plain language and structure of the statute to be inconclusive, we turn for guidance to the legislative history of the ACCA amendment.

The earliest versions of the ACCA clearly proposed a new federal offense. See S. 52, 98th Cong., 1st Sess. Sec. 2 (1983) (federal offense of robbery or burglary if committed with a firearm by a defendant with two or more previous robbery or burglary convictions); H.R. 1627, 98th Cong., 1st Sess. Sec. 2 (1983) (federal offense for a defendant with two prior robbery or burglary convictions to commit any robbery or burglary with a firearm). This approach was ultimately rejected, however, due to "serious reservations as to the appropriateness of prosecutions of local burglaries or robberies under a federal statute." H.R.Rep. No. 1073, 98th Cong., 2d Sess. at 4 (1984), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3664 (House Report). Instead, H.R. 6248 was introduced as a means of accomplishing the same penal goals without expanding the federal criminal law into existing state criminal law. The House Report accompanying H.R. 6248, which ultimately formed the basis of the ACCA, explained the purpose of the bill:

In "enhancing" this offense, [Sec. 1202(a)(1),] with H.R. 1627-type sanctions, if the defendant has been convicted three times of robbery or burglary, we are enhancing an existing Federal crime, which would alleviate many of the problems associated with H.R. 1627 such as the issue of a local D.A. veto or the difficulties encountered by Federal Courts in applying state robbery and burglary laws in Federal prosecutions.

House Report at 5, U.S.Code Cong. & Admin.News p. 3665 (emphasis added). The House Report also explains that if "circumstances warrant prosecution under the enhanced penalty provisions of this bill, the mandatory fifteen-year penalty is available." Id. (emphasis added). While the House Report is not entirely free from ambiguity, ⁷ we are nevertheless satisfied that the weight of the legislative history supports an interpretation of the ACCA amendment as a sentence enhancement provision.

We are buttressed in this conclusion by remarks made in floor debates by the principal sponsors of the ACCA in both the House and the Senate. Senator Specter, the principal sponsor of the ACCA in the Senate, stated:

This bill would create no new Federal crime. Under present section 1202(a), possession of a firearm by a convicted felon is already a federal crime, with a maximum prison sentence of 2 years. This title would simply provide for a stiffer sentence for career criminals. It would not permit the Federal prosecution of any individual who could not be prosecuted under current Federal law, and would not trespass upon any State prosecutions or require Federal courts to apply State law.

130 Cong.Rec. S13,030 (daily ed. Oct. 4, 1984) (emphasis added). Representative Hughes, the principal sponsor of the ACCA in the House, stated:

This bill would enhance the sanctions of 18 U.S.C. app. section 1202(a) with a 15 year minimum sentence if the defendant has been convicted three times of felonies for robbery or burglary.

130 Cong.Rec. H10,550 (daily ed. Oct. 1, 1984) (emphasis added). Several other statements were made to the same effect. See, e.g., 130 Cong.Rec. H10, 550 (daily ed. Oct. 2, 1984) (statement of Rep. Sawyer) ("H.R. 6248 takes an existing gun possession statute and enhances...