United States v. Richard A. Scarborough

777 F.2d 175, 1985 U.S. App. LEXIS 24065
Court of Appeals for the Fourth Circuit·Decided November 19, 1985·No. 84-5123·Published·Cited by 21 cases

Opinions

ERVIN, Circuit Judge:

This case is an appeal from a criminal conviction challenging the defendant’s enhanced sentence as a dangerous special offender under 18 U.S.C. § 3575.1 Scarborough was convicted of possession of a firearm after having been convicted as a felon in violation of 18 U.S.C.App. II § 1202(a). The district court sentenced Scarborough to two years in prison for violating the gun statute and to five additional years as a dangerous special offender. Scarborough now appeals, claiming that the enhancement of the two year sentence was improper. We reverse.

I.

Scarborough was arrested for illegal possession of a firearm in the early morning hours of December 7, 1983. The previous evening, Scarborough’s wife had told him she was going shopping with her sister and would be home later that evening. When she didn’t return, Scarborough phoned a friend’s house to inquire as to his wife’s whereabouts. He was told that she was at the friend’s house and was in bed with [177] another man. Scarborough then proceeded from his parents’ home to the house, taking with him a gun that belonged to his father. When he arrived at the friend’s house, he found his wife asleep in bed with a man. A scuffle ensued between Scarborough and the man. The gun was fired during the altercation without hitting anyone.

A psychiatrist who examined Scarborough after the incident stated that

[i]t is obvious that on the morning of December 7, [Scarborough] was quite rageful; but even under the circumstances of breaking down doors and being in a highly emotional state, he did not physically hurt anyone. I believe that the event of that morning might be looked upon as a special situation due to the highly emotional circumstances. Based on my two interviews with Mr. Scarborough, I would say that there was nothing to indicate that he posed a continued danger to society. He seemed quite earnest in his deep feelings towards his family, and also seemed to be aware of the serious nature of his actions.

(J.A. 213). Scarborough was convicted in Virginia state court for breaking and entering with intent to commit assault and brandishing a firearm in connection with the incident. The possible maximum penalty for the offenses was six years. The jury recommended that he serve only one year.

On February 6, 1984, a federal grand jury indicted Scarborough for possession of a firearm after having been convicted of a felony in violation of 18 U.S.C.App. II § 1202(a). On March 9, 1984, the government filed a Petition for Dangerous Special Offender sentencing pursuant to 18 U.S.C. § 3575, requesting that Scarborough receive an enhanced sentence under the statute because a period of confinement longer than the two-year maximum for possession of a firearm was “required to protect the public from further criminal conduct by Scarborough.” (J.A. 11). Scarborough was convicted of the firearms charge following a March 13, 1984 jury trial.

On April 13, 1984, the district court conducted an evidentiary hearing concerning the propriety of Dangerous Special Offender sentencing. In order to be eligible for enhanced sentencing under the relevant subsection of the statute, a defendant must have been convicted of a felony punishable by death or imprisonment for more than one year, or have been released from prison on such a felony conviction within the previous five years. 18 U.S.C. § 3575(e)(1).2 Scarborough attempted to present evidence at the hearing that his only felony conviction within the previous five years was invalid, and consequently he did not qualify as a special offender under 18 U.S.C. § 3575. He sought to argue that the 1982 conviction was invalid due to illegally obtained evidence and insufficiency of the evidence. The district court refused to entertain any evidence regarding the validity of the conviction, stating that it was “not going to turn this into a habeas corpus proceeding.” (J.A. 52). The court believed that it was sufficient that the conviction was facially valid, and that a challenge to the legality of the search and the sufficiency of the evidence could only properly be brought in a habeas corpus proceeding.

The district court then found that, on the basis of his prior convictions, Scarborough should receive an enhanced sentence under the statute. Prior to his arrest for the instant offense in December of 1983, Scarborough had been convicted of felonies arising from five different incidents. Within ten years prior to the arrest, he was arrested and convicted twice for possession of a controlled substance. On July 2, 1982, he was arrested for possession of less than one tenth of a gram of cocaine. He received a three-year suspended sentence and was placed on three years probation. On July 7, 1979, Scarborough was convicted of possession of phenobarbital. He was fined $1000.3 In 1972 and 1973, Scarborough [178] was convicted of five felonies arising from three more serious incidents. On September 8, 1972, he was convicted in Virginia state court for possession of POP with intent to distribute and possession of hashish.4 He received a one year suspended sentence and one year’s probation for the former offense and a concurrent six year suspended sentence and six year’s probation for the latter. Scarborough’s probation was revoked when he was arrested the following year. On November 16, 1973, Scarborough was convicted in Virginia state court on two counts of possession of LSD with intent to distribute. These offenses were committed on July 16 and August 1, 1973. Scarborough was sentenced to five years in prison, with three years suspended, for the July 16 offense, and five years in prison for the August 1 offense. These sentences were to run concurrently with each other and concurrently with time served for the 1972 convictions, as those sentences were no longer suspended. On November 30, 1973, Scarborough was also convicted of the federal offense of possession of a firearm by a convicted felon, 18 U.S.C.App. II § 1202(a), on the basis of the incident resulting in his conviction for the August 1 drug offense. He was sentenced to one year in prison. Scarborough was released from federal prison for this offense on April 25, 1978 and had not been incarcerated since that time until his arrest for the events of December 7, 1983.

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United States v. Richard A. Scarborough, 777 F.2d 175, 1985 U.S. App. LEXIS 24065 (4th Cir. 1985).

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United States v. Richard A. Scarborough
777 F.2d 175 (Fourth Circuit, 1985)