United States v. Pratt

568 F.3d 11, 2009 U.S. App. LEXIS 11878, 2009 WL 1532961
CourtCourt of Appeals for the First Circuit
DecidedJune 3, 2009
Docket05-2624
StatusPublished
Cited by42 cases

This text of 568 F.3d 11 (United States v. Pratt) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Pratt, 568 F.3d 11, 2009 U.S. App. LEXIS 11878, 2009 WL 1532961 (1st Cir. 2009).

Opinions

LIPEZ, Circuit Judge.

We must revisit this case, our earlier decision having been vacated and the case remanded by the United States Supreme Court. Pratt v. United States, - U.S. -, 129 S.Ct. 991, 173 L.Ed.2d 284 (2009) (mem.).

Gary Pratt was convicted of being a felon in possession of a handgun under 18 U.S.C. § 922(g)(1) and sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal, he challenged his conviction and sentence, and we affirmed both. United States v. Pratt, 496 F.3d 124 (1st Cir.2007). With respect to his sentence, we rejected Pratt’s argument that his prior conviction under New Hampshire’s criminal escape statute did not count as a “violent felony” conviction for purposes of the ACCA. We based that decision on an earlier case, United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004), in which we had concluded that all New Hampshire escape crimes are “violent” for purposes of the Career Offender Guideline enhancement, whose definition of a predi[14]*14cate “crime of violence” is almost identical to § 924’s definition of “violent felony.” Pratt, 496 F.3d at 130; U.S.S.G. §§ 4B1.1, 4B1.2. Subsequently, the Supreme Court decided in Chambers v. United States, - U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), that criminal escapes of the kind committed by the defendant in Winn are not crimes of violence for ACCA sentencing purposes. Because our first decision in this case had relied upon Winn, which is no longer good law, the Supreme Court granted certiorari in this case, vacated, and remanded to us for reconsideration of the ACCA sentence.

Upon reconsideration, we again affirm Pratt’s sentence as an armed career criminal. We determine that, unlike the failure-to-report crime at issue in Chambers, Pratt’s escape from secure custody was a crime of violence., The rest of our decision, which relates to Pratt’s argument that the evidence was insufficient to support the verdict because the government failed to introduce into evidence a stipulation as to two elements of his offense, and the concurring opinion on the stipulation issue, are unchanged.

I.

We state the facts “as the. jury could have found them, drawing all inferences in the light most consistent with the jury verdict.” United States v. Milkiewicz, 470 F.3d 390, 392 (1st Cir.2006). Immediately following his release from prison, Pratt lived on and off with Melody Isham-Pilotte, who purchased a .357 caliber Glock semiautomatic pistol at his instruction and filled out the paperwork as the purchaser. Pratt then kept the gun with him and used it on seyeral occasions to fire at signs and beer cans. At one point, after crashing Isham-Pilotte’s car and leaving the scene of the accident, he called to tell her that he had left the gun in the trunk of the car. Isham-Pilotte was able to retrieve the gun.

Eventually, Pratt was arrested for failure to appear -in court on an unrelated matter, and, after an investigation uncovered the events described above, he was charged with being a felon in possession of a firearm. His indictment stated that the government intended to seek a sentencing enhancement under the ACCA, which provides a fifteen-year mandatory minimum term for a defendant with three prior violent felonies or serious drug offenses.

Before trial, the parties filed a stipulation agreeing that the handgun had been transported in interstate or foreign commerce. The stipulation also identified five previous crimes for which Pratt had been convicted. With respect to those crimes, the stipulation stated that “the jury should be instructed by the Court that ‘the defendant agrees he was previously convicted of a crime punishable by imprisonment for a term exceeding one year’ without further elaboration or explanation.” See infra Section II.A.

At trial, the prosecution told the jury in its opening statement that the gun in question had traveled in interstate commerce and that Pratt previously had been convicted of a crime'punishable by imprisonment for more than one year. However, the stipulation providing the evidentiary support for this statement was never presented to the jury as evidence prior to the close of evidence; and the prosecution did not introduce other evidence that the gun had traveled in interstate commerce or that Pratt was a convicted felon.

After the close of evidence, the court issued its instructions to the jury. It first provided a general instruction on stipulations:

During the course of trial, you were told that the government and the defendant [15]*15agreed or stipulated to certain facts. This simply means that both sides accept those facts to be true. Because there is no disagreement regarding those facts, there was no need for either side to introduce evidence relating to them. You may accept as true those facts to which the government and the defendant have stipulated.

With respect to the charged offense, the court instructed the jury that, under 18 U.S.C. § 922(g)(1), the government must prove that: (1) the defendant had been convicted of a felony (which it defined as a “crime punishable by imprisonment for a term exceeding one year”); (2) the defendant possessed a firearm; and (3) the firearm had traveled in interstate commerce. It then explained that Pratt

has stipulated or agreed that ... he was convicted of an offense punishable by imprisonment for a term exceeding one year. Because there is no disagreement regarding that fact, there was no need for the government to introduce any evidence relating to it. As I mentioned earlier, you may accept as true the facts to which the government and the defendant have stipulated or agreed.

The court also stated that Pratt

has stipulated that the Glock semi-automatic pistol at issue in this case traveled across the state boundary line at some time after its manufacture. Because the parties do not disagree as to that fact, there was no need for the government to introduce any evidence relating to it and you may accept as true the fact that the Glock semi-automatic pistol traveled in or affected interstate commerce.

Pratt did not object to these instructions. The jury returned a guilty verdict.

During his sentencing hearing, Pratt objected that he did not qualify for an enhanced sentence under the ACCA because his prior offenses did not include three violent felonies. The court rejected his objections and imposed the statutory minimum sentence of fifteen years. This appeal ensued.

II.

A. Stipulation to Essential Elements

To establish a violation of 18 U.S.C. § 922

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Bluebook (online)
568 F.3d 11, 2009 U.S. App. LEXIS 11878, 2009 WL 1532961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pratt-ca1-2009.