US v. Landaw, SCr. 88-84.

• Decision Date: 04 October 1989
• Docket Number: No. SCr. 88-84.,SCr. 88-84.
• Citation: 727 F. Supp. 481
• Parties: UNITED STATES of America v. Edward E. LANDAW, Jr.
• Court: U.S. District Court — Northern District of Indiana

727 F. Supp. 481

UNITED STATES of America v. Edward E. LANDAW, Jr.

No. SCr. 88-84.

United States District Court, N.D. Indiana, South Bend Division.

October 4, 1989.

Rick L. Jancha, Asst. U.S. Atty., South Bend, Ind., for U.S.

Alan Blumenthal, Chicago, Ill., for Edward E. Landaw, Jr.

MEMORANDUM AND ORDER

MILLER, District Judge.

Edward E. Landaw, Jr. is a convicted killer and heroin dealer. If he also is a convicted burglar, he faces life imprisonment.

A jury found Mr. Landaw guilty of a violation of 18 U.S.C. § 922(g)(1), in that on October 21, 1988 he possessed two handguns in his dwelling in South Bend, Indiana. Sentencing pends. The statute under which Mr. Landaw was convicted prohibits a convicted felon from possessing a firearm that traveled in interstate commerce.

The government seeks enhanced sentencing of Mr. Landaw under 18 U.S.C. § 924(e), subsection (1) of which provides, in pertinent part:

In the case of a person who violates Section 922(g) of this title and has three previous convictions by any court referred to in Section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000.00 and imprisoned not less than fifteen years.

The same subsection defines the term "violent felony" as:

... any crime punishable by imprisonment for a term exceeding one year that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of injury to another.

18 U.S.C. § 924(e)(2)(B).

Mr. Landaw raises three arguments in opposition to the government's motion. Each argument addresses his 1968 conviction in an Indiana court for entering to commit a felony. First, he argues that his civil rights were restored automatically and his right to possess firearms was not impaired by state law, so the Indiana convictions are not "convictions" upon which sentencing enhancement may be based pursuant to 18 U.S.C. § 924(e)(1). Second, Mr. Landaw claims that his sentence may not be enhanced based on a constitutionally invalid predicate conviction. Finally, he argues that his sentence for violating 18 U.S.C. § 922(g)(1) may not be enhanced by virtue of his three prior felony convictions, where the predicate conviction for entering to commit a felony was not a burglary as defined by common law, Indiana law, or federal law and thus was not a "violent felony" as comprehended by the enhancement provision of 18 U.S.C. § 924(e)(1).

I.

Mr. Landaw's prior criminal record includes three felony convictions between 1968 and 1973. In 1973, he was convicted in federal court for distributing heroin in violation of 21 U.S.C. § 841, Cause No. 72 SCr. 76, and was sentenced to fifteen years in prison. Mr. Landaw was on parole from that offense at the time of the conduct underlying the present case.

In 1970, Mr. Landaw was convicted in the St. Joseph Superior Court, Cause No. 15984, of involuntary manslaughter and sentenced to a term of imprisonment for not less than one nor more than ten years.

In 1968, Mr. Landaw pleaded guilty to a charge of entering with intent to commit a felony, Cause No. 14095, in the St. Joseph Superior Court. The 1968 conviction stemmed from an arrest for entering a laundromat in Mishawaka, Indiana and attempting to steal money from a vending machine. He was originally sentenced to an indeterminate term of one-to-ten years imprisonment. Upon post-conviction petition, the Indiana Supreme Court reduced his sentence to imprisonment for one-to-five years. The court held that second degree burglary carried only a five year maximum and that the lesser included offense of entering with intent to commit a felony could carry no greater penalty than the higher offense. Landaw v. State, 258 Ind. 67, 279 N.E.2d 230 (1972).

II.

A.

Mr. Landaw claims that neither of his two state convictions may be used as predicates for enhancement purposes under the Firearm Owner's Protection Act of 1986¹ since the civil rights that he lost as a result of his state convictions were automatically restored upon completion of his sentence. See e.g. IND. CODE 35-50-1-4 (repealed 1986) (concerning disfranchising of incarcerated convicts); IND.CODE 3-7-1-15 (a person imprisoned following conviction of a crime is disfranchised during the person's imprisonment). Mr. Landaw also notes that disfranchisement, although permitted by the statute under which he was convicted, was not ordered as part of his 1968 sentence.

The government argues that an affirmative act, rather than an automatic change in status under state law, is required to bring a defendant within the exemption at 18 U.S.C. § 921(a)(20), citing S.Rept. No. 98-583 (1984) at 6, reprinted at 3 ATF Quarterly Bulletin 77, 82 (1986); United States v. Presley, 667 F.Supp. 678 (W.D. Mo.1987), aff'd, 851 F.2d 1052 (8th Cir. 1988); United States v. Hefner, 842 F.2d 731 (4th Cir.), cert. denied ___ U.S. ___, 109 S.Ct. 174, 102 L.Ed.2d 144 (1988).

Reliance on Hefner appears to be misplaced. Hefner dealt not with a criminal statute, but rather a statute that disqualifies a convicted felon from sitting on a federal grand jury if his civil rights had not been restored. However, United States v. Kolter, 849 F.2d 541 (11th Cir.1988), dealt with a defendant who was convicted of burglary in 1973, but had all of his civil and political rights restored by the State Board of Pardons and Paroles three years later. The court held that under 18 U.S.C. § 921(a)(20), he was not a "convicted felon". The state board's action in Kolter appears to be precisely the type of action contemplated by Congress in the 1986 amendment to the act. No agency took such action with respect to Mr. Landaw.

"Restoration" of civil rights under Indiana's statutory scheme involves no action by state authorities; it is automatic upon release from custody. Were the court to accept Mr. Landaw's position, 18 U.S.C. § 924(e) would be rendered moot in Indiana as to any state conviction for which a defendant had served his or her sentence. Further, since the Indiana state court apparently never disfranchised Mr. Landaw for his 1968 conviction, he could not have had his civil rights "restored" as required by 18 U.S.C. § 921(a)(20).

B.

Mr. Landaw next argues that the government has improperly relied upon a constitutionally infirm predicate offense under § 924(e)(1). He claims that his guilty plea and consequent conviction in 1968 are constitutionally invalid in that the plea was involuntary in fact and as a matter of law. The transcript of his 1968 guilty plea demonstrates an advisement of rights that could not pass constitutional muster today in light of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In United States v. Johnson, 612 F.2d 305 (7th Cir.1980), in a firearms prosecution, the Seventh Circuit held that the district court could not properly rely on an invalid prior state conviction for sentencing purposes.

The government argues that Mr. Landaw's guilty plea satisfied then-existing constitutional standards of voluntariness and that Boykin is not applied retroactively. The government relies upon Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (conviction subject to collateral attack may serve as the predicate to a charge of being a felon in possession of a firearm), and United States v. Balascsak, 873 F.2d 673 (3d Cir.1989), for the proposition that Mr. Landaw may not collaterally attack the validity of a predicate conviction that merely serves as a basis for enhanced sentencing.

The court does not find it necessary to decide the question of whether a defendant is precluded from collaterally attacking a predicate conviction under the Armed Career Criminal Act, since the Seventh Circuit has assumed, and other circuits have held, that Boykin is not to be applied retroactively. Hansen v. Mathews, 424 F.2d 1205 (7th Cir.), cert. denied 397 U.S. 1057, 90 S.Ct. 1404, 25 L.Ed.2d 675 (1970); Hendron v. Cowan, 532 F.2d 1081, 1083 (6th Cir. 1976) (citing cases). The guilty plea at issue was entered in 1968 and was, therefore, not subject to the requirements of Boykin. But cf. United States v. Gantt, 659 F.Supp. 73, 79 (W.D.Pa.1987) (government bears the burden of proving the validity of an uncounseled conviction if it seeks sentence enhancement under the Armed Career Criminal Act).

C.

At oral argument, Mr. Landaw conceded that the law of this circuit precludes this court from applying the common law or state law definition of burglary to the predicate offense. In United States v. Dombrowski, 877 F.2d 520 (7th Cir.1989), the court held that the term "burglary" in § 924(e)(2)(B) was intended to encompass any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a federal or state offense. Mr. Landaw argues that this definition includes a requirement of "entering or remaining surreptitiously", an element not included in the offense for which he was convicted in 1968.

In 1968, Indiana codified burglary in three degrees, all involving "breaking" and "entering", with degrees determined by the type of property and intent involved. Ind. Stat.Ann. § 10-701. Mr. Landaw's conduct was charged pursuant to Sec. 10-704, "Entering to Commit a Felony."² Mr. Landaw claims that the statute under which he was charged was a lesser offense to burglary as it did not require the element of "breaking" or any kind of unauthorized or surreptitious entry. Mr. Landaw suggests that had he been accused of an unauthorized or surreptitious entry, he would have been charged with second degree burglary under Indiana law. Mr. Landaw also has proffered the decision of the Indiana Supreme Court which reduced his...