U.S. v. Sanders, 98-7273

• Decision Date: 21 January 1999
• Docket Number: No. 98-7273,98-7273
• Citation: 165 F.3d 248
• Parties: UNITED STATES of America v. Cyrus R. SANDERS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 248

165 F.3d 248

UNITED STATES of America v. Cyrus R. SANDERS, Appellant.

No. 98-7273.

United States Court of Appeals Third Circuit.

Argued Nov. 17, 1998.

Decided Jan. 21, 1999.

Kyle W. Rude (Argued), Williamsport, PA, for Appellant.

David M. Barasch, U.S. Attorney, Theodore B. Smith, III (Argued) Asst. U.S. Attorney, Dennis C. Pfannenschmidt, Asst. U.S. Attorney, Harrisburg, PA, for Appellee.

Before: BECKER, Chief Judge, GREENBERG, Circuit Judge, and McLAUGHLIN, District Judge ^*

OPINION OF THE COURT

McLAUGHLIN, District Judge.

Prior to its amendment effective September 13, 1994, 18 U.S.C. § 922(j) made it unlawful "for any person to ... sell[ ] or dispose of any stolen firearm ... which has been shipped or transported in [interstate commerce], knowing or having reasonable cause to believe that the firearm ... was stolen." 18 U.S.C.A. § 922(j) (West 1976) and Historical and Statutory Notes to 1990 Amendment (West Supp.1998). Appellant Cyrus Sanders, Jr. was convicted in the United States District Court for the Middle District of Pennsylvania for violations of this provision upon entering a plea of guilty to charges of trafficking and conspiring to traffic in stolen firearms. It is undisputed that the transactions for which Sanders was convicted involved the sale and disposal of firearms that had entered the stream of interstate commerce prior to their theft, but not thereafter.

Sanders now appeals the District Court's denial of his motion to set aside, correct, or vacate his sentence under 28 U.S.C. § 2255. Appellant claims that his counsel was ineffective in advising him to plead guilty to the trafficking charges inasmuch as the applicable version of § 922(j) did not prohibit his particular conduct. We are thus called upon to determine whether § 922(j), prior to its amendment in 1994, was intended to apply to transactions in stolen firearms where the weapons moved in interstate commerce only prior to being stolen. We conclude that it was. Accordingly, we affirm the District Court's order.

I. BACKGROUND

On January 24, 1996, a federal grand jury in Pennsylvania returned a four-count indictment against Sanders charging him with conspiracy to possess a firearm as a convicted felon and to traffic in stolen firearms [Count I], possession of a firearm by a convicted felon [Count II], trafficking in stolen firearms in violation of 18 U.S.C. § 922(j) [Count III], and retaliating against a witness [Count IV]. The government alleged that, between September 1990 and April 1994, Sanders conspired with two other individuals to burglarize several residences in remote locations. Once inside the residences, Sanders and his cohorts would steal items with potential resale value, including firearms. Other firearms were obtained by providing false information to legitimate gun dealers. In all, a total of forty-four guns ultimately were attributed to Sanders. These firearms were sold to private individuals and legitimate dealers, often at gun shows. All of the firearms at issue were disposed of in Pennsylvania and never entered interstate commerce after Sanders came into possession of them.

The scheme finally ended after one of Sanders's fellow conspirators was arrested and began cooperating with law enforcement officials. Following his own indictment, Sanders agreed to plead guilty to the charges of trafficking and conspiring to traffic in stolen firearms on the advice of his attorney. In exchange for his plea, the remaining charges against him were dismissed. The District Court subsequently sentenced Sanders to a seventy-month term of incarceration.

On January 14, 1998 Sanders filed a motion to set aside, correct, or vacate his sentence pursuant to 28 U.S.C. § 2255. Sanders claims that he committed no violation of the law with respect to the trafficking charges set forth in Counts I and III and, therefore, his attorney was ineffective in advising him to plead guilty to those charges. More specifically, Sanders contends that the version of 18 U.S.C. § 922(j) in effect at the time of his conduct required that the firearms which are the subject of the trafficking offense enter interstate commerce as stolen firearms, i.e., after being stolen. Sanders further claims that he was prejudiced by his counsel's ineffectiveness. He theorizes that, if he had been able to successfully challenge the trafficking charges under Counts I and III, he might have had an additional "bargaining chip" with which to negotiate a better plea offer.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 2255 and § 1291. United States v. Cleary, 46 F.3d 307, 309 (3d Cir.1995). Because our disposition of this appeal ultimately turns on an interpretation of statutory law, we apply a plenary standard of review. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir.1998) (legal component of an ineffective assistance of counsel claim in the habeas context is subject to plenary review) (addressing claim under 28 U.S.C. § 2254).

III. DISCUSSION

A.

Initially, we must address the government's argument that Sanders has procedurally defaulted his present claim by failing to raise it either in the District Court or on direct appeal. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and 'actual prejudice,' ... or that he is 'actually innocent.' " Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (internal citations omitted). We will limit our inquiry, as the parties have, to the issue of whether Sanders has shown "cause" and "actual prejudice" for his procedural default. ¹

Sanders contends that he can establish "cause" by virtue of his counsel's ineffectiveness in advising him to plead guilty to the trafficking and conspiracy charges under Counts I and III of the indictment. A showing of ineffectiveness of counsel which rises to the level of a constitutional deprivation can indeed constitute the type of prejudice that will excuse procedural default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir.1996) (state prisoner habeas claim); United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993) (recognizing principle but declining to consider it on appeal). Accord United States v. Guerra, 94 F.3d 989, 993-94 (5th Cir.1996); United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). To prevail on such a claim, however, a defendant must show both that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that counsel's deficiencies prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sistrunk, 96 F.3d at 670.

The district judge rejected Sanders's ineffective assistance of counsel claim based on a two-part analysis. First, the judge observed that the government had acquired overwhelming evidence of Sanders's guilt. He therefore considered it reasonable for defense counsel to presume that Sanders would ultimately be convicted by a jury. The district judge then engaged in a lengthy and detailed analysis of the potential ramifications of Sanders's plea agreement for purposes of sentencing. He essentially predicted that Sanders benefitted from his plea agreement because he faced less potential jail time than he might otherwise have faced if convicted on the felon-in-possession charge under Count II of the Indictment. In light of these circumstances, the judge found that defense counsel acted reasonably in not moving to dismiss the trafficking charge and instead advising Sanders to plead guilty to that charge and the related conspiracy charge.

On appeal, Sanders argues that, regardless of the District Court's ex post calculation of his supposed sentence on Counts I, II, and IV, he would have been in a better plea bargaining position to receive a shorter sentence if Count III and part of Count I had been dismissed. However, we need not reach this issue. Because we conclude that Sanders did in fact engage in prohibited conduct under Counts I and III of the indictment, it necessarily follows that Sanders's counsel was not ineffective in advising him to plead guilty to those charges rather than attempting to have them dismissed. It further follows that Sanders's § 2255 claim would inevitably fail on the merits, as he can demonstrate no legitimate basis for withdrawal of his guilty plea or for vacating his sentence. We turn, then, to our examination of the operative statutory provision.

B.

It is undisputed that the conduct for which Sanders was charged occurred between September 1990 and April 1994. The parties therefore agree that, for purposes of this case, we must apply 18 U.S.C. § 922(j) as it existed following its amendment in 1990 and prior to its amendment effective September 13, 1994. See 18 U.S.C.A. § 922(j) (West 1976) and Historical and Statutory Notes to § 922, 1990 Amendment (West Supp.1998). This version of § 922(j) reads as follows:

It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.

Id.

Sanders interprets the foregoing language to mean that the subject firearm must have traveled in interstate commerce as a stolen firearm--i.e., the theft must have occurred prior to the stolen firearm's movement in interstate commerce. The government interprets this same language to mean only that the firearm which is the subject of the trafficking offense must have passed in...