U.S. v. Sherbondy

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before NELSON, REINHARDT and O'SCANNLAIN; REINHARDT
• Citation: U.S. v. Sherbondy, 865 F.2d 996 (9th Cir. 1988)
• Decision Date: 15 December 1988
• Docket Number: No. 87-5148,87-5148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin J. SHERBONDY, Defendant-Appellant.

Page 996

865 F.2d 996

UNITED STATES of America, Plaintiff-Appellee, v. Kevin J. SHERBONDY, Defendant-Appellant.

No. 87-5148.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1988.

Decided Dec. 15, 1988.

Barry A. Bisson, Huntington Beach, Cal., for defendant-appellant.

Kendra S. McNally, Leslie A. Swain, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Dennis P. Riordan, Riordan & Rosenthal, San Francisco, Cal., for amicus curiae California Attys. for Criminal Justice.

Ephraim Margolin, San Francisco, Cal., for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Appeal from the United States District Court for the District of California.

Before NELSON, REINHARDT and O'SCANNLAIN, Circuit Judges.

REINHARDT, Circuit Judge:

INTRODUCTION

Defendant Kevin J. Sherbondy appeals his conviction under 18 U.S.C. Sec. 922(g)(1) for possession of a firearm by a felon, as well as his sentence under 18 U.S.C. Sec. 924(e), which mandates a 15-year minimum prison term for persons who violate section 922(g)(1) and who have three prior convictions for "violent felonies." We affirm Sherbondy's conviction, but reverse his mandatory sentence because his prior offense of preventing or dissuading a witness from testifying in violation of California Penal Code Sec. 136.1(c)(1) does not constitute a predicate "violent felony" for purposes of section 924(e)(1).

I. FACTS

On November 11, 1986, Sherbondy's girlfriend informed law enforcement authorities that he was a felon on probation and that he had a gun in his home. At the time, Sherbondy was 23 years old. He was a full time college student and worked as a landscaper. On November 17, 1986, Officer John Fadule found a revolver hanging from Sherbondy's bed while conducting a legal search of his residence in San Clemente, California. Sherbondy was arrested for the unlawful possession of a firearm. He was advised of his rights and waived them. He admitted that he was a felon and that he had served three years in a California state prison for robbery. Sherbondy also acknowledged that he possessed the pistol and said that he had received it from a friend as a gift. The gun was manufactured in Connecticut.

Sherbondy was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), with sentence enhancement under 18 U.S.C. Sec. 924(e)(1). He had three previous convictions: (i) robbery, on October 1, 1982; (ii) robbery, assault with a deadly weapon, first degree burglary, and false imprisonment, on December 23, 1982; and (iii) preventing or dissuading a witness from testifying in violation of California Penal Code Sec. 136.1(c)(1), on August 5, 1986. All three convictions were in Orange County Superior Court. Each of these crimes was punishable by a term of imprisonment exceeding one year.

In a published opinion, the district court denied Sherbondy's motion to strike from the indictment the allegation that his prior conviction for preventing or dissuading a witness constituted a "violent felony" under section 924(e). United States v. Sherbondy, 652 F.Supp. 1267 (C.D.Cal.1987). The court also ruled that the government could introduce extrinsic evidence as to the nature of the prior offense to show that it was in fact a "violent felony." Id. at 1269. During the one day bench trial the government elicited live testimony from Steven Howard, a witness to the offense, and also introduced a factual statement made by Sherbondy as part of his guilty plea. In his defense, Sherbondy submitted portions of the transcript from his sentencing in which the trial court had characterized his conduct as "not involving weapons or display of force or anything of that sort," but rather as involving only "two or three minutes of angry outburst" that had to be kept "in some type of perspective."

The district court found Sherbondy guilty of violating section 922(g)(1), and, after considering the evidence relating to Sherbondy's conduct, found that his prior offense of preventing or dissuading a witness constituted a "violent felony," thereby making him subject to sentencing under section 924(e). Sherbondy was sentenced to serve the mandatory minimum penalty of 15 years imprisonment without possibility of parole and ordered to pay a fine of $50. At his sentencing, the district judge told Sherbondy that "in all candor ... I wouldn't have sentenced you to 15 years if Congress had given me the discretion."

II. VIOLATION OF 18 U.S.C. Sec. 922(g)(1)

Sherbondy raises three challenges to his conviction under section 922(g)(1). ¹ He first argues that the phrase "possess in or affecting commerce" in section 922(g) requires proof of a present connection with interstate commerce. He then contends that section 924(a) creates a requirement that the defendant know that his possession of the gun is illegal. Finally, he argues that section 922(g)(1) is unconstitutional because it violates the equal protection clause. We reject all three challenges.

A. Commerce Nexus

Sherbondy's first argument involves the phrase "possess in or affecting commerce" in 18 U.S.C. Sec. 922(g). He contends that to satisfy its burden of proof the government had to show a present connection between his possession of the gun and interstate commerce. The district court, relying on case law interpreting former 18 U.S.C.App. Sec. 1202(a), ² a predecessor to section 922(g), held that the government need only prove that the gun had at one time crossed state lines. We agree.

Congress amended section 922(g) to its present form in 1986 in the Firearms Owners' Protection Act (FOPA). Prior to FOPA, section 922(g) dealt with the shipping of guns, section 922(h) dealt with the receipt of guns, and section 1202(a) dealt with the shipping, receipt, and possession of guns. All the provisions required some connection with interstate or foreign commerce. FOPA consolidated the three statutes at section 922(g), using language from each.

In a case construing section 1202(a), the Supreme Court held that possession was "in commerce or affecting commerce" as long as the gun had at one time travelled in interstate commerce. Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). The Supreme Court had once indicated in dicta that it might impose a more rigorous nexus standard to possession than that applied to receipt, United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 523-24, 30 L.Ed.2d 488 (1971), but in Scarborough it explicitly rejected such a distinction. Scarborough, 431 U.S. at 575 n. 11, 97 S.Ct. at 1969 n. 11. Thus, after Scarborough, the same "minimal" nexus standard applied to shipping, receipt, and possession.

Sherbondy argues that the plain language of section 922(g) abolishes the Scarborough- standard. He notes that section 922(g), unlike former section 1202(a), contains three different phrases regarding commerce: one modifying "ship or transport," one modifying "possess," and one modifying "receive." See supra note 2. Congress, he suggests, would not have used different phrases unless it meant to create distinct standards for each offense; thus, he argues, whereas "to receive any firearm or ammunition which has been shipped or transported" clearly allows for a past connection to commerce, "possesses ... in or affecting commerce" requires a present connection.

Sherbondy's argument has initial appeal. A literal reading of the statutory language tends to support his argument. However, statutory construction ordinarily consists of more than the bare examination of a statute's language. Escobar Ruiz v. I.N.S., 838 F.2d 1020, 1023 (9th Cir.1988) (en banc) (even where language in statute is clear, consideration of legislative history is appropriate if plain meaning is at "variance" with policy of statute as a whole). Words, and even more so combinations of words, are usually susceptible of more than one meaning, particularly in matters as complex as legislative enactments. The legislation before us is no exception. Statutes or statutory amendments are frequently enacted in light of prior legislation and prior court decisions. This background, as well as the legislative history, ordinarily enables us better to understand the true meaning of a legislative enactment. See, e.g., I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432-33, 107 S.Ct. 1207, 1213-14, 94 L.Ed.2d 434 (1987); see also Escobar Ruiz, 838 F.2d at 1023.

The legislative origin of section 922(g) provides us with an explanation of the use of differing language and, thus, guidance as to the proper construction of the statute. Congress did not draft new language regarding commerce; it simply took the commerce phrases from each of the three predecessor statutes. Compare:

old 922(g): "to ship or transport any firearm or ammunition in interstate or foreign commerce."

new 922(g): "to ship or transport in interstate or foreign commerce ... any firearm or ammunition."

old 922(h): "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

new 922(g): "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

old 1202(a): "receives, possesses, or transports in commerce or affecting commerce."

new 922(g): "possess in or affecting commerce."

Thus, with respect to possession, Congress employed language that had already been construed by the Supreme Court, language that the Scarborough Court had construed as including a past connection. Given the correspondence between the new statute and its predecessors, and the absence of any indication in the legislative history that Congress intended to overrule the Scarborough standard, we conclude that "in or affecting commerce" has the same meaning that "in commerce or affecting commerce" had in section 1202(a). ³

We observe that were we to accept Sherbondy's interpretation we would severely restrict the government's ability to prosecute...