US v. Gantt

• Decision Date: 09 March 1987
• Docket Number: Crim. No. 86-287.
• Citation: 659 F. Supp. 73
• Parties: UNITED STATES of America v. Calvin GANTT.
• Court: U.S. District Court — Eastern District of Pennsylvania

659 F. Supp. 73

UNITED STATES of America v. Calvin GANTT.

Crim. No. 86-287.

United States District Court, W.D. Pennsylvania.

March 9, 1987.

Charles A. DeMonaco, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.

David G. Rothey, Asst. Federal Public Defender, Pittsburgh, Pa., for defendant.

MEMORANDUM OPINION

DIAMOND, District Judge.

Before us is defendant's motion to dismiss the indictment for failure to aver three legal convictions. Specifically, defendant claims that one of the predicate convictions to the present prosecution was obtained without the benefit of defense counsel; hence, it cannot be used to enhance a sentence or support a conviction under the Armed Career Criminal Act of 1984, 18 U.S.C. Appendix II § 1202(a) (the "ACCA"). As we will explain, we agree that this unconstitutional conviction cannot be used for sentence enhancement under the ACCA, but we deny defendant's motion to dismiss the indictment.

Background

The indictment charges the defendant, Calvin Gantt, with possession of a firearm, a .22 caliber rifle, after having been convicted of three felony burglaries or robberies in violation of 18 U.S.C. Appendix II § 1202(a), the ACCA.¹ The government has filed with the court certified records of the three predicate convictions. All three convictions occurred in Florida. In 1969, Gantt was convicted of robbery, for which he received a sentence of five years at hard labor. In 1965, Gantt pled guilty to breaking and entering with intent to commit a misdemeanor and received a sentence of two years at hard labor. Gantt does not challenge the constitutional validity of either of these convictions.

For our purposes, we focus on Gantt's 1962 conviction for breaking and entering with intent to commit a felony. For that offense, the court sentenced him to one year at hard labor. The certified record is silent as to whether he had counsel. The government has conceded that he did not. Defense counsel has informed the court that Gantt is preparing an attack on this conviction in the Florida state courts. Though reserving its right to prove that Gantt waived counsel in the 1962 prosecution, the government has stipulated for purposes of this motion that the 1962 conviction was unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In the time since the parties briefed this motion, the Third Circuit decided United States v. Hawkins, 811 F.2d 210 (1987), where it held that the ACCA does not create a separate offense but rather imposes enhanced penalties on certain violators of the Gun Control Act of 1968, Pub.L. 90-351, Title VII, 82 Stat. 236 (codified at 18 U.S.C. Appendix II § 1202(a)(1)).² In light of Hawkins, the present indictment charges a violation of the Gun Control Act — possession of a firearm by a person having a felony conviction — and notifies Gantt that the government will seek an enhanced sentence under the ACCA. Thus, the issue before us is whether a conviction obtained in violation of Gideon can be used to enhance sentence under the ACCA. The government argues that this issue is identical to that which confronted the Supreme Court in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), where the court held that an uncounseled conviction could support a conviction under the Gun Control Act. Relying on the line of cases that culminated in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Gantt contends that the 1962 conviction cannot be used to enhance punishment.

Discussion

We must first analyze the meaning of "conviction" as used by Congress in the ACCA. Only then can we consider the constitutional implications of the statute. See United States v. Graves, 554 F.2d 65, 77 & n. 40 (3d Cir.1977) (en banc).

A. Legislative Intent.

The ACCA, enacted as part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, §§ 1802, 1803, 98 Stat. 2185, states:

In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than 15 years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such a person shall not be eligible for parole with respect to the sentence imposed under this subsection.

Subsection 1, to which the statute refers, is the Gun Control Act construed in Lewis and Graves. Though the Gun Control Act and the ACCA were separately enacted, the integration of the ACCA into § 1202 and the ACCA's explicit reference to the Gun Control Act require that we look to that act in interpreting the ACCA. Cf. United States v. Hawkins, at 219 (holding that the ACCA is a sentence enhancement amendment to the Gun Control Act, not a separate offense).

The ACCA speaks only of "convictions," without qualifying them in any way. When Congress wanted to, it could and did expressly limit the types of convictions that a court may consider. See, e.g., 18 U.S.C. § 3575(e) (repealed effective Nov. 1, 1987, Pub.L. 98-473, §§ 212(a)(2), 235). Construing similar language in the Gun Control Act ("convicted by a court ... of a felony"), the Supreme Court held that Congress did not intend to exclude unconstitutional convictions from the statute's sweep. Lewis, 445 U.S. at 60-62, 100 S.Ct. at 918-19; see also Graves, 554 F.2d at 69. Especially since Congress referred to the Gun Control Act when defining the predicate offenses under the Armed Career Criminal Act, we may assume that Congress considered and assented to this broad definition of "convictions." See Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978).

The legislative history does not offer much insight into what Congress meant by "convictions." Senator Specter, the sponsor of the bill, compared the bill to the Dangerous Special Drug Offender sentencing statute, 21 U.S.C. § 849, which does allow collateral attack on unconstitutional convictions, see 21 U.S.C. § 849(e), but this reference was made in the context of discussing the double jeopardy implications of the bill. 129 Cong.Rec. § 297 (January 26, 1983). In his comparison, Senator Specter did not discuss the meaning of "convictions." The history does not clarify the meaning of "convictions." Thus, we stand by the conclusion that follows from the plain language of the statute and the courts' reasoning in Lewis and Graves: "convictions" includes those unconstitutionally obtained.

B. The Constitutional Issue.

Resolution of the constitutional issue presented in this case requires us to examine closely the apparently inconsistent precedents on this point.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the defendant's conviction and sentence under a Texas recidivist statute were based in part on a prior felony conviction at which defendant was not represented by counsel. The Supreme Court overturned the conviction and sentence, holding that a conviction obtained in violation of Gideon v. Wainwright may not "be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526)." 389 U.S. at 115, 88 S.Ct. at 262. The court reasoned that allowing such use of this prior conviction would erode the principle of Gideon, and, "worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right." Id.

In United States v. Graves, 554 F.2d 65 (3d Cir.1977) (en banc), the Third Circuit held that a conviction of questionable constitutional validity could serve as the predicate for conviction under the Gun Control Act, "especially where the defendant challenges the constitutionality of the prior conviction on grounds other than a denial of counsel and previously has refused to avail himself of ample opportunities to eradicate the weapons disability." 554 F.2d at 82. In Graves, the defendant claimed that in his previous prosecution, he had been transferred from juvenile to adult treatment without benefit of constitutionally required procedures. Underlying the court's opinion was its belief that the Gun Control Act was fundamentally a regulatory measure to keep guns out of the hands of those Congress deemed unfit to possess them. See 554 F.2d at 69-70, ("We note also that § 1202, despite its location within the federal criminal code, is essentially regulatory in nature."), 74-75; compare Del Piano v. United States, 575 F.2d 1066, 1067- 68 (3d Cir.1978) (recognizing the continued validity of Burgett and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and holding that a sentencing judge cannot consider prior convictions obtained without the assistance of counsel).

In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Supreme Court held that a prior conviction that was flawed because the defendant was without counsel could constitute the predicate for conviction under the Gun Control Act, 18 U.S.C. Appendix II § 1202(a)(1). The Lewis court distinguished Burgett by treating the Gun Control Act as an "essentially civil disability." Id. at 67, 100 S.Ct. at 922. The court began its constitutional analysis by testing the statute as applied to unconstitutionally convicted felons against the "rational basis" test, the due process test traditionally used to scrutinize regulatory legislation. The court reasoned that "Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm." Id. at 66, 100 S.Ct. at 921. Relying on its view that...