United States v. Leroy Rush A/K/A James Johnson, United States of America v. Mark Anthony Cloyd, A/K/A Terry J. Francis

840 F.2d 574, 1988 U.S. App. LEXIS 2307
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 25, 1988
Docket86-1811, 86-2227
StatusPublished
Cited by44 cases

This text of 840 F.2d 574 (United States v. Leroy Rush A/K/A James Johnson, United States of America v. Mark Anthony Cloyd, A/K/A Terry J. Francis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leroy Rush A/K/A James Johnson, United States of America v. Mark Anthony Cloyd, A/K/A Terry J. Francis, 840 F.2d 574, 1988 U.S. App. LEXIS 2307 (8th Cir. 1988).

Opinions

McMILLIAN, Circuit Judge.

Leroy Rush (No. 86-1811) and Mark A. Cloyd (No. 86-2227) appeal from final judgments entered in the District Court1 for the Eastern District of Missouri and the District Court2 for the District of Nebraska, respectively, upon jury verdicts finding them guilty of possession of a firearm in violation of 18 U.S.C.App. § 1202(a) (West Supp.1984).3 Both appeals have been consolidated for en banc consideration of the correct statutory construction of the Armed Career Criminal Act of 1984 (ACCA).4 Rush and Cloyd have each been convicted of felonious robbery or burglary on three previous occasions. In accordance with 18 U.S.C.App. § 1202(a), as amended by the ACCA, the district court sentenced Rush to fifteen years imprisonment and Cloyd to twenty-five years imprisonment.5 For reversal, Cloyd and Rush argue that the district court erred in sentencing them under the ACCA amendment because the amendment is not a sentence enhancement provision, but rather defines a separate offense, of which they were not convicted. Because we conclude that the ACCA amendment to § 1202(a) is a sentence enhancement provision, and not a separate statutory offense, we affirm the judgments of the district court as to both Cloyd and Rush.

In each trial, the jury was instructed that it need only find one prior felony conviction in order to find a person in possession of a [576]*576firearm guilty of violating 18 U.S.C.App. § 1202(a). Cloyd and Rush submit that the ACCA establishes a separate crime of possession of a firearm by one who has three previous felony convictions. Under this interpretation, proof of two additional convictions is an essential element of the offense which must be found beyond a reasonable doubt by the jury. Cloyd and Rush therefore contend that because they were never properly convicted of this separate and more serious offense, they may not be sentenced under the more severe provisions of the ACCA. The government submits that the ACCA provision merely enhances the penalty provisions of § 1202(a) for those defendants found by the sentencing judge to have three previous robbery or burglary convictions.

The courts of appeals that have considered this issue have reached differing conclusions. In United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987), the Tenth Circuit held that the ACCA “did not create any new federal crime — it only increased the penalty for an already existing federal offense described in Sec. 1202 — that crime being the possession of a firearm after being convicted of a felony.” Similarly, the Third Circuit concluded that “the members of Congress viewed the Armed Career Criminal Act as a statute providing for an enhanced penalty, and we construe it consistently with that legislative intent.” United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.1987) (Hawkins). The District of Columbia Circuit likewise interpreted the ACCA as merely “enhancing” the otherwise applicable sentencing provisions of § 1202(a). United States v. Jackson, 824 F.2d 21, 22-26 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988) (Jackson). Most recently, the Ninth Circuit held that the ACCA “is a sentence enhancement, and not a separate statutory offense.” United States v. West, 826 F.2d 909, 911 (9th Cir.1987) (West).

On the other hand, the Fifth Circuit reached the opposite result, concluding that the ACCA is not merely a sentence enhancement provision, but creates a new federal offense. United States v. Davis, 801 F.2d 754, 755-56 (5th Cir.1986) The Sixth Circuit reached the same conclusion in United States v. Brewer, 841 F.2d 667 (6th Cir.1988). See also Hawkins, 811 F.2d at 220 (Rosenn, J., concurring in part and dissenting in part).

The resolution of this question of statutory intent hinges on the intent of Congress. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (Garrett). In divining congressional intent, we first look to the language and structure of 18 U.S.C.App. § 1202(a), as amended by the ACCA.6 See Garrett, 471 [577]*577U.S. at 779-82, 105 S.Ct. at 2412-14. Unfortunately, the statute is not a model of clarity.

In some respects, the ACCA amendment resembles a sentence-enhancement provision. Beginning with the phrase “in the case of,” the ACCA amendment appears to relate back to the preceding sentence of the statute. While the first sentence lists the classes of persons who are prohibited from receiving, transporting, or possessing firearms, the second sentence seems to do no more than single out a portion of one of these classes for more severe punishment. Additionally, as the Third Circuit noted, “the inclusion of the Armed Career Criminal Act into the same paragraph as the previously enacted section 1202(a)(1) with no division into separate numbers or letters, suggests treatment of the contents as a single offense.” Hawkins, 811 F.2d at 218-19. See also West, 826 F.2d at 911; Jackson, 824 F.2d at 23.

On the other hand, the ACCA amendment repeats the possession and commerce elements of § 1202(a)(1) and could stand on its own as an independent separate offense. As the Fifth Circuit pointed out, the ACCA amendment also “lacks other common indi-cia of sentence-enhancement provisions,” such as an explicit reference to a conviction under § 1202(a)(1), a penalty derived as a multiplier of § 1202(a)(1), procedures for a sentencing hearing, or a title identifying the amendment as a sentence enhancement provision. Davis, 801 F.2d at 755-56. Cf 18 U.S.C. § 3575 (Supp. Ill 1985) (“Increased sentence for dangerous special offenders” provision with detailed procedures for sentencing hearing); 21 U.S.C. § 849 (1982) (“Dangerous special drug offender sentencing” provision, also containing detailed sentencing procedures).

We find some merit in each of these competing interpretations of the language and structure of § 1202(a). Finding the plain language and structure of the statute to be inconclusive, we turn for guidance to the legislative history of the ACCA amendment.

The earliest versions of the ACCA clearly proposed a new federal offense. See S. 52, 98th Cong., 1st Sess. § 2 (1983) (federal offense of robbery or burglary if committed with a firearm by a defendant with two or more previous robbery or burglary convictions); H.R. 1627, 98th Cong., 1st Sess. § 2 (1983) (federal offense for a defendant with two prior robbery or burglary convictions to commit any robbery or burglary with a firearm).

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Bluebook (online)
840 F.2d 574, 1988 U.S. App. LEXIS 2307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leroy-rush-aka-james-johnson-united-states-of-america-ca8-1988.