U.S. v. Young

• Decision Date: 09 May 1991
• Docket Number: No. 90-30257,90-30257
• Citation: 936 F.2d 1050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Henry YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1050

936 F.2d 1050

UNITED STATES of America, Plaintiff-Appellee, v. John Henry YOUNG, Defendant-Appellant.

No. 90-30257.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991. ^*

Decided June 13, 1991.

John Henry Young, in pro. per.

Carl E. Rostad, Asst. U.S. Atty., Great Falls, Mont., for plaintiff-appellee.

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

Before WRIGHT and O'SCANNLAIN, Circuit Judges, and GEORGE, ^** District Judge.

PER CURIAM:

Following his conviction and sentencing for assaulting a federal officer and related charges, John Henry Young filed, pro se, a motion to correct an illegal sentence. The district court denied the motion, as well as Young's subsequent motion to reconsider. We affirm.

I

On March 23, 1988, Young and his cousin, James Snell, were shooting gophers on the Fort Belknap Indian Reservation in Montana. Two Bureau of Indian Affairs police officers stopped Snell's automobile for running a stop sign. One of the officers, Sergeant Myron Oats, recognized Young as the subject of two outstanding tribal warrants. When Oats attempted to arrest Young, a struggle ensued over possession of Young's rifle. Young, however, was eventually subdued.

Young was indicted for assaulting a federal officer, in violation of 18 U.S.C. Sec. 111, possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g), and use of a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). The jury convicted Young on all three counts. The district court sentenced Young to ten years' imprisonment on the first count, the maximum sentence possible when an assault on a federal officer involves a deadly or dangerous weapon. On the second count, the district court imposed a concurrent ten year sentence, and on the third count, a mandatory five-year consecutive term was imposed. On direct appeal, Young's convictions and sentence were affirmed. See United States v. Young, 883 F.2d 1025 (9th Cir.1989) (unpublished disposition).

II

We first consider, nostra sponte, whether the district court had jurisdiction to entertain Young's numerous post-conviction claims. Jordan styled his pro se motion as a "motion to correct an illegal sentence" under Federal Rule of Criminal Procedure 35(a). The district court considered and rejected all of Young's claims on the merits, without considering whether these claims were properly brought in a Rule 35 motion. Rule 35 was substantially amended by the Sentencing Reform Act of 1984 and, as part of these amendments, the ability of a defendant to seek sentence correction was curbed. "Although Rule 35(a) at one time provided that '[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence,' that version of Rule 35(a) is not applicable to individuals sentenced under the Sentencing Reform Act of 1984." United States v. Jordan, 915 F.2d 622, 624 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1629, 113 L.Ed.2d 725 (1991). As amended, Rule 35 is no longer available to ground the relief that Young seeks.

However, Young's unfortunate mislabelling of his motion is not necessarily fatal to maintaining his claims. The pleadings of a pro se inmate are to be liberally construed. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir.1990); see also United States v. Ten Thousand Dollars in United States Currency, 860 F.2d 1511, 1513 (9th Cir.1988). A court may treat a Rule 35 motion as one brought under 28 U.S.C. Sec. 2255. See Eatinger, 902 F.2d at 1385 (reversing district court's ruling on Rule 35 motion on the ground that the district court should have "liberally construe[d]" the motion as a petition filed under section 2255); United States v. Fowler, 794 F.2d 1446, 1448 (9th Cir.1986) (court avoided question of whether claims cognizable under section 2255 by treating petition as a motion under Rule 35), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987); accord Jordan, 915 F.2d at 625 ("federal courts have recognized that claims presented under the previous version of Rule 35(a) are also frequently cognizable under 28 U.S.C. Sec. 2255 as well"). Accordingly, we shall treat Young's Rule 35(a) motion as one arising under section 2255. ¹

III

Young contends that the district court erred in sentencing him under the deadly or dangerous weapon provision of 18 U.S.C. Sec. 111 when the indictment failed to allege the elements of this provision. ² Section 111, as it read at the time of Young's criminal conduct, provided:

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

Whoever, in the commission of such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

18 U.S.C. Sec. 111. ³ Young was sentenced under the latter part of this statute. However, the relevant count of Young's indictment did not allege the use of a deadly or dangerous weapon, either specifically or generically. ⁴

"An indictment is required to set forth the elements of the offense sought to be charged." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953); see also United States v. Krasovich, 819 F.2d 253, 255 (9th Cir.1987) (same). Here, there is no dispute that the indictment did not allege the use of a deadly or dangerous weapon. Rather, the question is whether the use of such a weapon is an essential element of the crime, or whether it is simply a "sentence enhancement" which need not be pled in the charging indictment.

The Supreme Court's latest statement on this issue is found in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Court considered a constitutional challenge to Pennsylvania's Mandatory Minimum Sentencing Act. Under the Act, anyone convicted of certain enumerated felonies was subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge found, by a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. McMillan contended that the "visible possession of a firearm" must be pled in the indictment, submitted to the jury, and proven beyond a reasonable doubt, just as any offense (or elements of an offense) must be.

The Supreme Court disagreed. "[I]n determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive." Id. at 85, 106 S.Ct. at 2415. Generally, facts which bear only on sentencing need not be proven beyond a reasonable doubt. Id. at 85-86, 106 S.Ct. at 2415-2416. However, the Court observed that "there are constitutional limits to the State's power in this regard; in certain limited circumstances Winship 's reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged." Id. at 86, 106 S.Ct. at 2416. The Court did not attempt to define the precise contour of the constitutional threshold; rather, it identified several factors that persuaded it that the constitutional limits had not been exceeded by the Pennsylvania legislature. First, the Court noted that the Act did not contain any impermissible presumptions. Id. at 87, 106 S.Ct. at 2416-17. Second, the Court observed that the Act "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty." Id. at 87-88, 106 S.Ct. at 2416-2417. Finally, the Court concluded that there was no evidence to suggest that the Pennsylvania legislature drafted the Act as it did with the intent of evading the "reasonable doubt" requirement. Id. at 89-90, 106 S.Ct. at 2417-2418.

Accordingly, our task is twofold; first, we must determine whether Congress intended the "deadly or dangerous weapon" provision of section 111 to be a separate offense. If the answer to this query is negative, we must determine whether we are constitutionally compelled to read that provision as a separate offense, regardless of Congress' intent.

When determining the breadth of a statute, a court must look first to the statute's language and structure. See Moskal v. United States, --- U.S. ----, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990); see also United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 825 (9th Cir.1989). If the statute is unambiguous, its plain language controls except for in rare and exceptional circumstances. See 594,464 Pounds of Salmon, 871 F.2d at 826; see also Howe v. Smith, 452 U.S. 473, 483, 101 S.Ct. 2468, 2475, 69 L.Ed.2d 171 (1981).

The language and structure of section 111 suggest that the "deadly or dangerous weapon" clause is strictly a sentencing provision. Notably, the provision is not structurally separated from the rest of the section, indicating that the section contains only one substantive offense. Moreover, the deadly or dangerous weapon provision is not drafted as a stand-alone offense; it incorporates the predicate acts by reference rather than affirmatively setting forth any specific elements. Finally, the 1988 amendment reinforces the conclusion that the provision concerns only sentencing. Without otherwise materially altering the provision, Congress subsequently labeled the provision "Enhanced Penalty." While the view of a later Congress does not establish definitely the meaning of an earlier enactment, it does have persuasive value. Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 2194, 76 L.Ed.2d 312 (1983).

Having concluded that the dangerous or deadly weapon provision of section 111 was intended solely as a sentence enhancement rather than as a substantive...