US v. Towne, Crim. No. 86-77-1.

• Decision Date: 07 March 1988
• Docket Number: Crim. No. 86-77-1.
• Citation: 680 F. Supp. 687
• Parties: UNITED STATES of America v. Edwin A. TOWNE.
• Court: U.S. District Court — District of Vermont

680 F. Supp. 687

UNITED STATES of America v. Edwin A. TOWNE.

Crim. No. 86-77-1.

United States District Court, D. Vermont.

March 7, 1988.

Patti Page, Asst. U.S. Atty., Burlington, Vt., for the U.S.

Stephen Blodgett, Blodgett & Watts, Burlington, Vt., for defendant.

OPINION AND ORDER

COFFRIN, Chief Judge.

On June 4, 1987, a jury of this court found defendant Edwin A. Towne guilty of seven counts of federal firearms violations. The government has sought enhanced sentencing pursuant to the dangerous special offender statute. 18 U.S.C. § 3575. On December 24, 1987, following an evidentiary hearing on the issue, this court issued an opinion and order finding defendant to be a dangerous special offender subject to increased penalties with respect to his convictions under Counts 1 through 5 of the indictment. We withheld ruling on defendant's dangerous special offender status with respect to his convictions under Counts 6 and 8 pending briefing on whether defendant should be sentenced pursuant to 18 U.S.C. § 924(e)(1) for those convictions. The parties have thoroughly briefed that issue. We now hold that defendant Edwin A. Towne is subject to section 924(e)(1) enhanced sentencing for his convictions under Counts 6 and 8. For that reason, defendant is not subject to section 3575 enhanced sentencing for those convictions. Defendant's conviction under Count 2 is VACATED as redundant.

In Counts 6 and 8, defendant was convicted of possession of a Winchester rifle and an Armi Tanfoglio Giuseppe ("TARGA") .25 caliber pistol in violation of 18 U.S.C. § 922(g)(1), which prohibits the interstate transportation, possession, or receipt of firearms or ammunition by convicted felons. Section 924(a)(1) authorizes a five year term of imprisonment for knowing violations of section 922(g). 18 U.S.C. § 924(a)(1)(B). Section 924(e)(1), on the other hand, requires the sentencing court to impose a term of at least 15 years imprisonment with no parole eligibility where a section 922(g) violator has three previous violent felony convictions. Id. § 924(e)(1). Defendant has four such prior convictions: 1976 New Hampshire convictions for kidnapping and aggravated felonious sexual assault and 1983 Vermont convictions for kidnapping and sexual assault.

The Government argues that the court should sentence defendant under section 924(e)(1) for his Count 6 and Count 8 convictions. Defendant argues that to do so would violate due process, would constitute cruel and unusual punishment, and would be contrary to Congressional intent. We address each of defendant's arguments in turn.

First, defendant mounts a facial attack on section 924(e)(1), arguing that the provision violates due process because it requires a minimum sentence that exceeds the maximum sentence otherwise applicable. We find no merit in this challenge. Defendant rests his entire argument on the Supreme Court's dictum in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan involved a challenge to Pennsylvania's Mandatory Minimum Sentencing Act, which requires the imposition of at least a five year term of imprisonment if the sentencing judge finds by a preponderance of the evidence that the defendant "visibly possessed" a firearm during the commission of an offense. The Court rejected petitioner's contention that due process required the government to prove visible possession beyond a reasonable doubt. In doing so, the Court noted that

petitioner's claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished—that Pennsylvania has in effect defined a new set of upgraded felonies—would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, but it does not.

Id. 106 S.Ct. at 2418 (citation omitted). This gratuitous aside, even coming from the highest authority, cannot support a facial attack on a federal statute. In the absence of any other argument or authority to the contrary, we reject defendant's facial due process challenge.

Second, defendant argues that because Congress set no upper limit on section 924(e)(1) sentences, the court could impose a sentence that violated the proportionality requirements of due process and the eighth amendment. This argument is premature. Defendant is entitled to raise it again at sentencing along with specific sentencing recommendations. We note, however, that "outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980) (affirming mandatory life sentence with parole eligibility in twelve years under recidivist statute for obtaining money by false pretenses conviction; present and two prior convictions combined involved theft of $229.11).¹

Third, defendant argues that due process precludes section 924(e)(1) sentencing because the government did not prosecute him under the provision; rather, the government only indicated intent to pursue enhanced sentencing under section 3575. The court injected the issue of section 924(e)(1) enhancement into the case sua sponte in its December 24 Order.

Analysis of section 924(e)(1) requires reference to its history. Section 924(e)(1) is a new statute. Enacted as part of the Armed Career Criminal Act of 1984, the enhancement provision was originally limited to firearms violators with three prior burglary or robbery convictions. Comprehensive Crime Control Act of 1984, ch. XVIII, § 1802, Pub.L. No. 98-473, 98 Stat. 1837, 1976, 2185 (originally codified as 18 U.S.C. app. § 1202(a)). The statute was recodified and amended in 1986, and its scope was expanded to include firearms violators with three prior convictions for any violent felony or serious drug offense. Firearm Owners Protection Act, Pub.L. No. 99-308, § 104, 100 Stat. 499, 456 (1986); Career Criminals Amendment Act of 1986, Pub.L. No. 99-570, § 1102, 100 Stat. 3207, 3239. Unlike section 3575, section 924(e)(1) does not place discretion to seek enhanced sentencing in the hands of the government. Section 924(e)(1) is, by its own terms, mandatory. Nor does the statute impose specific notice procedures.

The Constitution does not require pre-trial notice of the possibility of enhanced sentencing for recidivism. Due process requires only reasonable notice and an opportunity to be heard. Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503-04, 7 L.Ed.2d 446 (1962); United States v. Rundle, 318 F.2d 64, 66 (3d Cir.1963); see also Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967) (indeterminate sentence of one day to life upon court's finding that defendant constitutes danger to public, or is habitual offender and mentally ill, violates due process absent notice, full hearing, and specific findings; at hearing, defendant must be present with counsel and must have opportunity to be heard, to confront and cross-examine hostile witnesses, and to offer evidence of his own).

Defendant was accorded each of these incidents of due process at the October 20, 1987, dangerous special offender hearing. The only factual predicates to section 924(e)(1) sentencing are a section 922(g) conviction and three prior violent felony convictions. Defendant does not deny that kidnapping and sexual assault qualify as violent felonies. The validity of the prior convictions were directly in issue at the section 3575 proceeding. Defendant had both the opportunity and incentive to attack his prior convictions in that hearing, as they are necessary predicates to section 3575 enhanced sentencing, as well. Moreover, the court accorded defendant over a month to brief the appropriateness of section 924(e)(1) sentencing in this case. Consequently, we find no due process impediments to section 924(e)(1) sentencing. See United States v. Jackson, 824 F.2d 21, 22-26 (D.C.Cir.1987) (affirming 20 year enhanced sentence where government apparently first indicated intent to pursue § 1202(a) enhancement at sentencing hearing), cert. denied, ___ U.S. ___, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988); cf. United States v. Hawkins, 811 F.2d 210, 217-20 (3d Cir.) (section 1202(a)'s enhancement provision is sentencing provision rather than separate offense, so defendant need not be indicted or convicted in terms of enhanced offense; need not decide what, if any, notice required for government to seek enhanced sentence as pretrial filing of notice actually provided was adequate), cert. denied, ___ U.S. ___, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986) (government's post-indictment filing of "Information Charging Prior Offenses" alleging three prior robbery convictions and intent to seek enhanced sentencing under § 1202(a) did not constitute unlawful amendment of indictment as enhanced sentencing provisions of statute do not create new crime), cert. denied, ___ U.S. ___, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987). But see United States v. Davis, 801 F.2d 754, 755-56 (5th Cir.1986) (court could not convict and sentence under § 1202(a) enhancement provisions where indictment was not in those terms).

Fourth, defendant argues that defendant's convictions under Counts 2 and 8 for receipt and possession of the same TARGA pistol cannot stand as they describe the same offense. Defendant argues that the court should vacate the Count 8 conviction, which is arguably subject to section 924(e)(1) sentencing, and sentence only on Count 2, which is not.

In Counts 2 and 8, the jury convicted defendant of the illegal receipt and possession of the same pistol on July 27 and December 3 of 1986. If both convictions are based upon a single act, the court can only enter judgment and sentence on one of the convictions. Ball v. United States, 470 U.S. 856, 861-64, 105 S.Ct. 1668, 1671-73, 84 L.Ed.2d 740 (1985). The government...