United States v. Abernathy

• Court: Court of Appeals for the First Circuit
• Decided: May 1, 1996
• Docket: 95-1720
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-1720



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 JAMES H. ABERNATHY,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                 ____________________


Edward  F.  Grourke with  whom Finan  & Grourke  was on  brief for
            ___________________            ________________

        appellant.

            Sheldon Whitehouse, United States Attorney, for appellee.
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                                 ____________________



                                    April 30, 1996

                                 ____________________



ALDRICH, Senior Circuit Judge.  James H. Abernathy,
                               ____________________



            driving  a Massachusetts registered  car in Providence, Rhode



            Island,  was stopped by two  policemen, one of  whom, when he



            peered into  defendant's vehicle, observed the butt  of a .45



            caliber Colt  semi-automatic pistol  sticking out from  under



            the driver's seat.  Indicted as a result, defendant initially



            pleaded guilty to two counts:  Count I, as a convicted  felon



            carrying a firearm that had  been in interstate commerce,  in



            violation of 18 U.S.C.   922(g)(1); Count II, carrying an arm



            that  had been  in  interstate commerce  with an  obliterated



            serial number, in violation of 18 U.S.C.   922(k).  Defendant



            was sentenced  to 110  months imprisonment followed  by three



            years supervised release on  Count I, and to a  concurrent 60



            months imprisonment on Count  II.  Over one year  later, upon



            defendant's motion, the entire  sentence was vacated in order



            to reinstate his right  to pursue a direct appeal,  which had



            been dismissed for want of prosecution.  Thereafter, prior to



            resentencing,  defendant moved  to  withdraw his  plea.   The



            court  denied the  motion  and resentenced  defendant to  the



            original terms.   This  appeal ensued, raising  the following



            points: (1) the lawfulness of the stop; (2) whether defendant



            should  have been  allowed  to  withdraw  his pleas  on  both



            counts;  and  (3)  the  constitutionality  of   the  statutes



            proscribing his conduct.   We affirm on (1) and  (3).  On (2)



            we reverse and vacate the sentence with respect to Count II.


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The Arrest
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                      The  officers were  in  an unmarked  car, in  plain



            clothes.   Some  of  the evidence  might support  defendant's



            claim that this  was an unlawful  investigatory stop.   Ample



            evidence, however, supports the district court's finding of a



            justified  traffic violation  stop, including  testimony that



            defendant travelled in the wrong lane of traffic and then ran



            a stop sign.   No purpose would be  served in discussing  the



            district court's careful  analysis and reasonable credibility



            resolutions.    The  fact  that  the   officers  were  on  an



            undercover  investigatory narcotics detail does not mean that



            they could not lawfully make a proper traffic stop.



                                Withdrawal of the Plea
                                ______________________



                      Withdrawal of a guilty plea prior to sentencing may



            be granted for "fair and just  reason."  See Fed. R. Crim. P.
                                                     ___



            32(e) (1994);  United States  v. Cotal-Crespo,  47 F.3d 1,  3
                           _____________     ____________



            (1st Cir.), cert.  denied, ___  U.S. ___, 116  S.Ct. 94,  133
                        _____________



            L.Ed.2d 49 (1995).  After sentencing, the defendant must show



            a defect attending the plea that amounts to a "miscarriage of



            justice," or  "an omission inconsistent with  the rudimentary



            demands of  fair procedure."  United  States v. Lopez-Pineda,
                                          ______________    ____________



            55 F.3d  693, 697  (1st Cir.) (internal  quotations omitted),



            cert. denied, ___  U.S. ___  116 S.Ct. 259,  133 L.Ed.2d  183
            ____________



            (1995).     Although   the   United  States   attaches  great



            significance  to the category to  which defendant ought to be


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assigned, whether defendant's plea was  knowing and voluntary



            within  the  meaning   of  Criminal  Rule  11  is   the  most



            significant factor  under either standard.   United States v.
                                                         _____________



            Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).
            ______



                      With respect to Count  I this is a routine  case --



            the court  was well warranted in  finding no misunderstanding



            of the charge  by defendant, nor was there  any other flaw in



            the plea proceedings.  Fed. R. Crim. P. 11(a)-(f).



                      There is a serious question, however,  with respect



            to Count II.  From the record, it appears that  the court, as



            well  as counsel for  both the government  and the defendant,



            understood that  the government was not  obliged to establish



            actual knowledge  on defendant's part that  the serial number



            had  been obliterated  at the  time of  his possession,1  and



            communicated this misunderstanding to the defendant.  We find



            this  failure to  apprise defendant  of the  elements  of the



            charge fundamentally  inconsistent with fair  procedure in an



                                
            ____________________



            1.  While, regrettably, some of our prior cases seem unclear,

            cf. United States v.  Chapdelaine, 989 F.2d 28, 33  (1st Cir.
            ___ _____________     ___________

            1993), cert. denied, ___ U.S. ___, 114 S.Ct. 696, 126 L.Ed.2d
                   ____________

            663  (1994), United States v.  Smith, 940 F.2d  710, 713 (1st
                         _____________     _____

            Cir. 1991), it is indisputable that actual knowledge has been

            a  necessary element of the  crime at least  since passage of

            the  Firearms Owners'  Protection  Act, Pub.  L. No.  99-308,

              104,  100  Stat.  456,   456  (1986),  which  modified  the

            attendant penalty provision  to require knowing  violation of
                                                    _______

              922(k)  in order  for  criminal sanctions  to  attach.   18

            U.S.C.   924(a)(1)(B).  See United States v. Hooker, 997 F.2d
                                    ___ _____________    ______

            67, 72 (5th Cir. 1993); United States v.  Haynes, 16 F.2d 29,
                                    _____________     ______

            34 (2nd Cir. 1994).  See  also United States v. De Leon Ruiz,
                                 ___  ____ _____________    ____________

            47 F.3d 452, 454 (1st Cir. 1995); United States v. Lanoue, 71
                                              _____________    ______

            F.3d 966, 983 (1st Cir. 1995).



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acceptance of plea proceeding.  As the record contains strong



            support for defendant's claim that he lacked knowledge of the



            obliteration  -- at  the  very least  it  does not  establish



            otherwise -- we cannot  say the error was harmless.   Compare
                                                                  _______



            United States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995).  See
            _____________    ________                                 ___



            Fed. R. Crim.  P. 11(h).   It  follows that  defendant has  a



            right to withdraw his plea on Count II.



                      Defendant's tangential suggestion that  the court's



            imposition of  a two-level  enhancement to his  offense level



            based on the obliteration  also requires reversal ignores the



            fact that this enhancement explicitly applies "whether or not



            the  defendant knew or had reason to believe that the firearm



            . . .  had an  altered or obliterated  serial number."   USSG



             2K2.1(b)(4), comment. (n.19).  See United States v. Schnell,
                                            ___ _____________    _______



            982 F.2d  216,  220-21  (7th  Cir. 1992);  United  States  v.
                                                       ______________



            Williams, 49 F.3d 92, 93 (2nd Cir. 1995).
            ________



                      Having in  mind that the  60-month sentence imposed



            on Count II was to be served concurrently with the 110  month



            sentence on Count I, the government  has suggested that there



            may be  possible advantages  to defendant in  not withdrawing



            the plea.  This  question is for defendant to  determine when



            returned to the district court, and we express no opinion.



                          Constitutionality of the Statutes
                          _________________________________



                      We  have recently  considered and  rejected similar



            arguments to those raised  by defendant challenging the power


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of Congress under the  Commerce Clause to enact  the statutes



            underlying the charges  against him, in light of  the Supreme



            Court's ruling in United  States v. Lopez, ___ U.S.  ___, 115
                              ______________    _____



            S.Ct. 1624, 131  L.Ed.2d 626  (1995).  See  United States  v.
                                                   ___  _____________



            Bennett,  75  F.3d  40,  49 (1st  Cir.  1996)  (challenge  to
            _______



            constitutionality  of 18  U.S.C.   922(g)(1)  is "hopeless");



            United States v.  Diaz-Martinez, 71 F.3d  946, 953 (1st  Cir.
            _____________     _____________



            1995) (Lopez does not invalidate 18 U.S.C   922(k)).
                   _____



                      Affirmed in part, reversed in part, and remanded.
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