U.S. v. Sanders
| Decision Date | 22 December 1994 |
| Docket Number | Nos. 93-4322,94-3021,s. 93-4322 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellant, v. Lummie SANDERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MARTIN and BATCHELDER, Circuit Judges, and COHN, District Judge. *
Counts One and Three of the indictment in this case charged the appellant, Lummie Sanders, with being a felon in possession of a firearm, in violation of 18 U.S.C.A. Sec. 922(g)(1) (West Supp.1994). Count Two charged Sanders with making a false statement in the acquisition of a firearm, in violation of 18 U.S.C.A. Sec. 922(a)(6) (West Supp.1994). At trial, the government sought to prove that in late 1992, Sanders, a convicted felon, pawned a firearm, redeemed the firearm, and then pawned the firearm again, and that in redeeming the firearm, Sanders falsified a Bureau of Alcohol, Tobacco, and Firearms (ATF) Form. A jury convicted Sanders on all counts. The government asked that the district court sentence Sanders under the Armed Career Criminal Act (ACCA), 18 U.S.C.A. Sec. 924(e) (West Supp.1994), based on Sanders's three prior felony convictions. The district court declined and instead sentenced Sanders according to the United States Sentencing Guidelines.
On appeal, Sanders argues that there was insufficient evidence for conviction, that the district court should have merged the felon-in-possession convictions, and that the district court erred in calculating his offense level under the sentencing guidelines. The government cross-appeals the district court's refusal to sentence Sanders as an armed career criminal. We affirm in part, reverse in part, and remand the case to the district court.
We first address Sanders's contention that the district court should have merged the two felon-in-possession convictions because they encompassed a single course of action. The government concedes that a person may not be convicted twice for continuous and uninterrupted possession of the same weapon. See United States v. Jones, 533 F.2d 1387, 1389-92 (6th Cir.1976), cert. denied, 431 U.S. 964 (1977). As Sanders points out, the government's theory of proof was that Sanders had constructive possession of the firearm in the pawnshop and therefore had continuous possession of the gun at all times relevant to this prosecution. We hold that under the facts of this case and the government's theory of prosecution, the felon-in-possession convictions are multiplicitous. Cf. United States v. Dudley, 779 F.Supp. 1581 (D.Kan.1991). We see no reason for a new trial, because Sanders suffered no prejudice. Moreover, Sanders does not request a new trial. Therefore, we will simply vacate the conviction upon Count Three. See United States v. Hebeka, 25 F.3d 287, 291 (6th Cir.1994) ().
The standard for reviewing a challenge to the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Sanders contends that the evidence was insufficient to prove he committed the crimes alleged. This claim is based on the pawnshop owner's inability to make an in-court identification of Sanders.
We find the evidence sufficient to prove Sanders committed the crimes charged in Counts One and Two. The pawn ticket and the ATF form were signed with the name "Lummie Sanders." The physical description of the man who pawned the gun matches the description of Sanders on his driver's license. The ATF form lists the transferee's birth date as 2/25/47 and his driver's license number as PW586400, and Sanders's driver's license lists his birth date as 2/25/46 and his license number as PW506400. Also, an ATF forensic scientist testified that, based on a handwriting analysis, Lummie Sanders "is the only one that could have prepared the questioned signatures" on the pawn ticket and the ATF form.
Because we find the evidence otherwise sufficient, the fact that the pawnshop owner identified Sanders in a photo array soon after the events, but failed to identify him in court, is immaterial. See United States v. Warren, 973 F.2d 1304, 1306-08 (6th Cir.1992); United States v. Morrow, 925 F.2d 779, 781 (4th Cir.1991).
Finally, Sanders assigns as error the district court's calculation of his base offense level under Sec. 2K2.1(a) of the United States Sentencing Guidelines (U.S.S.G.). Section 2K2.1(a) prescribes a heightened base offense level for felons convicted under Sec. 922(g) if a prior felony conviction was for a "crime of violence or a controlled substance offense." U.S.S.G. Sec. 2K2.1(a). Sanders contends that the district court improperly found his 1986 involuntary manslaughter conviction to be a "crime of violence."
The government cross-appeals, claiming that the district court's error was in refusing to sentence Sanders under the Armed Career Criminal Act. Section 924(e) of that Act requires imprisonment of not less than fifteen years, without parole, for a person convicted of being a felon in possession of a firearm, if that person has three prior convictions for violent felony or serious drug offenses. 18 U.S.C.A. Sec. 924(e)(1). The district court counted Sanders's 1968 robbery conviction and 1986 involuntary manslaughter conviction towards the requisite three prior convictions, but concluded that Sanders's 1972 conviction for assault with a dangerous weapon could not count as the third predicate conviction because the self-defense instruction given to the jury during the trial on that charge was constitutionally infirm.
After the district court sentenced Sanders and this appeal was filed, the United States Supreme Court ruled that the Constitution does not guarantee a defendant the opportunity to attack the validity of a prior state conviction during federal sentencing unless the prior conviction was uncounseled in violation of Gideon v. Wainwright, 372 U.S. 335 (1963). Custis v. United States, 114 S.Ct. 1732, 1733 (1994); see United States v. Smith, 36 F.3d 490 (6th Cir.1994) (applying Custis ); cf. Nichols v. United States, 114 S.Ct. 1921 (1994). We hold that because Sanders's collateral attack on his prior state court conviction for assault was based on an error in...
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