United States v. Sudduth, 71-1423.

• Decision Date: 27 March 1972
• Docket Number: No. 71-1423.,71-1423.
• Citation: 457 F.2d 1198
• Parties: UNITED STATES of America, Appellant, v. Dale Edward SUDDUTH, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 1198 (1972)

UNITED STATES of America, Appellant, v. Dale Edward SUDDUTH, Appellee.

No. 71-1423.

United States Court of Appeals, Tenth Circuit.

March 27, 1972.

Richard J. Spelts, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellant.

Tom W. Lamm, Denver, Colo., for appellee.

Before SETH and BARRETT, Circuit Judges, and MECHEM, District Judge.

SETH, Circuit Judge.

The defendant was charged in a two count indictment, Count I thereof being for the sale of heroin in violation of 26 U.S.C. § 4705(a). Count II charged that the defendant carried a firearm "unlawfully" during the commission of the felony charged in Count I in violation of 18 U.S.C. § 924(c). At the pretrial of the case the trial court dismissed Count II, D.C., 330 F.Supp. 285. The trial was had on Count I and the defendant was convicted by a jury and the court imposed a sentence of five years. The trial court also imposed a sentence of one year to run consecutively with the five-year term. This one-year sentence was imposed under 18 U.S.C. § 924(c), the trial court thereby treating the subsection as relating to the matter of the penalty to be imposed. It thereby held that the subsection did not create a separate crime. The trial court also construed the wording of the subsection to require that the one-year term under section 924(c) was required to be a consecutive sentence on the first "offense."

The principal issue on the appeal is whether or not the construction of 18 U.S.C. § 924(c) by the trial court was correct. The Government here urges that the subsection creates a separate crime rather than an enhancement of the penalty as found by the trial court. The issue is also presented as to whether or not the subsection requires the sentence, whether it be an enhancement in penalty or a separate offense, to be consecutive to the confinement imposed under Count I, or whether for a "first offense." 18 U.S.C. § 924(c) reads as follows:

"(c) Whoever—

(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or

(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States. shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony."

Some examination of the legislative procedure which was followed in the enactment of section 924(c) and its predecessor is necessary in order to properly construe the section. This present subsection of Title 18 was part of the original Omnibus Crime Control and Safe Streets Act of 1968. The section originally contained penalties in subsection (a) thereof which related to Chapter 44 as a whole. These penalties thus related directly to the recitation of "unlawful acts" in the body of the Act. Section 924(c) was added and the original section 924(c) was redesignated (d) as a House Floor Amendment during the course of the debates on the Gun Control Act (H.R. 17,735). Apparently no public hearings were held on this Bill. The floor debate in the House was extensive and several amendments were there considered. Finally the amendment which became the basis of section 924(c) in the 1968 Omnibus Crime Control Act was passed by the House. Some of the amendments considered during the course of the floor debate presented somewhat different methods of handling the use of guns during the commission of a felony. It should be pointed out that the use of a gun during the commission of a felony constituted an entirely different subject than had theretofore been considered during the course of the debates on the original Omnibus Crime Control Act of 1968. The penalties in the original Act related to the acts which were declared unlawful in the Omnibus Bill, and which acts were for the most part related to the sale, importation and transportation of firearms.

The Senate considered its Gun Control Bill which was S. 3633, after the House had passed its Gun Control Act considered above. During the course of the Senate debate various methods to increase the penalty under the Omnibus Crime Control Act of 1968 were discussed on the floor and amendments were then offered. Among these amendments was the first by the Senate directly related to the possession and use of a gun while committing a felony. The Dominick amendment to the Gun Control Act was passed by the Senate and the matter went to the House Senate Conference Committee which adopted the House version of section 924 but with some reduction in the penalties originally proposed. The committee report was adopted and the Bill became the Gun Control Act of 1968, P.L. 90-618. It was an amendment to Chapter 44, Title 18 of the United States Code.

In 1970, the matter of the use of firearms during the commission of a felony was again considered, and again it arose by way of floor amendments. This was during the course of debate on the Omnibus Crime Control Act of 1970. The provisions were suggested as a "rider" to the Bill. The subject matter thereof had been formerly contained in a separate Senate Bill. The floor debate centered on the matter of increasing the severity of the punishment and the debate was directed to this point. The Omnibus Bill of 1970 with the "rider" referred to was passed by the Senate, went to the House Senate Conference Committee and the Senate version was adopted by the committee and the committee report was adopted by both houses and became the present 18 U.S.C. § 924(c).

The manner in which section 924(c) was adopted by Congress and the fact that it originated in both 1968 and 1970 versions by way of floor amendment helps in understanding why the subsection was placed in the Act where it was. This legislative procedure shows why the subject matter of the subsection is somewhat foreign to the balance of section 924. The subject matter was in fact not related to the basic provision of the Act which relate primarily as we have indicated to restrictions and...