United States v. Rumney

• Court: Court of Appeals for the First Circuit
• Decided: November 17, 1992
• Docket: 92-1438
• Status: Published

Opinion

USCA1 Opinion

November 17, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No.  92-1438

UNITED STATES OF AMERICA,
                                      Appellee,

                                          v.

                                    ARTHUR RUMNEY,
                                Defendant, Appellant.

                                 ____________________

ERRATA SHEET

The  cover  sheet of  the opinion  of  this court  issued on
          November 13, 1992 is amended as follows:

               Line 16:  insert "," after the name "Boudin."

               Line 19:  the name "Rummey" should be changed to "Rumney."

               Line 20:  the name "Petter" should be changed to "Peter."

               Line 21:  the name "Pappas" should be changed to "Papps."

November 13, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1438

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    ARTHUR RUMNEY,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Arthur Rumney, on brief pro se.
               _____________
               Jeffrey  R. Howard,  United  States Attorney,  and Peter  E.
               __________________                                 _________
          Papps,  First Assistant  United  States Attorney,  on Motion  for
          _____
          Summary Disposition.

Per Curiam.  Petitioner  was convicted of being  a felon
                 __________

            in possession of a firearm  in violation of 18 U.S.C.  app.  

            1202(a)(1).   Based on  his several prior  felony convictions

            for 

            burglary  and robbery,  he  received  the  mandatory  minimum

            fifteen-year sentence prescribed  by the sentence enhancement

            provisions of the  statute.  His conviction and sentence were

            affirmed  on appeal.  United  States v. Rumney,  867 F.2d 714
                                  ______________    ______

            (1st Cir.),  cert. denied, 491  U.S. 908 (1989).   Petitioner
                         ____________

            then filed his first  motion to vacate his sentence  under 28

            U.S.C.   2255.  The district court denied that motion and two

            subsequent motions for reconsideration.  This court affirmed.

            United  States  v. Rumney,  No.  91-1505 (1st  Cir.  Nov. 13,
            ______________     ______

            1991).    Petitioner now  appeals the denial of  a cluster of

            new motions he brought in the district court  between January

            and March, 1992:  a second   2255 motion, and four subsequent

            motions,   variously  labeled,   which  the   district  court

            liberally interpreted as  seeking reconsideration, on various

            grounds, of the  denial of his  second motion for  collateral

            relief under   2255.

                 We affirm the first three of the district court's recent

            decisions for  substantially the same reasons  stated by that

            court in each of its careful opinions of January 21, February

            4,  and February  21,  1992.   We  also affirm  the  district

            court's fourth and fifth decisions of March 10, and March 24,

1992,  disposing  of   petitioner's  last  two  motions   for

            reconsideration, but on somewhat different grounds.

                  Petitioner argued that his sentence should be set aside

            because  prior  to the  date of  the  offense charged  in his

            indictment, his  civil rights (including presumably his right

            to possess firearms) had been restored by New  Hampshire law.

            The  district  court  rejected   this  argument  because  New

            Hampshire does not automatically grant to felons the right to

            possess firearms.   We  find it  unnecessary  to address  the

            scope of New Hampshire  law in this case, because  the law in

            effect  at the  time of  petitioner's offense  incorporated a

            federal, and  not a state  law standard, for  determining the

            effect of petitioner's prior felony convictions.

                  Petitioner was indicted in February, 1988 for violating

            18 U.S.C. app.   1202(a).    1202(a) was the law in effect on

            November 3, 1986, the date petitioner was found in possession

            of a firearm despite several prior felony convictions.  Under

              1202(a), the definition of a prior felony "conviction," for

            purposes of  determining the existence of predicate offenses,

            is  determined by federal, not  state law.   See Dickerson v.
                                                         ___ _________

            New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983).  Since a
            ______________________

            state's  later  restoration  of  a convicted  felon's  "civil

            rights"  would   not  change  the  historical   fact  of  the

            conviction, under Dickerson it does not bar a  conviction and
                              _________

-4-

sentence enhancement prescribed by    1202(a). Dickerson, 460
                                                           _________

            U.S. at 111-12.

                 Effective November  15, 1986, 18 U.S.C.  app.   1202(a),

            was  repealed  and   reenacted.    The   statute's  felon-in-

            possession  provisions  were  incorporated into  18  U.S.C.  

            922(g), while the penalty enhancement provisions, in somewhat

            broader  form, were incorporated into 18 U.S.C.   924(e).  At

            the same  time, the definition of  "conviction" applicable to

            federal  firearms  violations,  contained  in  18   U.S.C.   

            921(a)(20),   was   amended.      The   amendment   redefined

            "conviction,"  by  requiring  reference  to the  law  of  the

            jurisdiction  where the  predicate conviction  occurred.   If

            that jurisdiction  set aside the conviction,  issued a pardon

            or restored  the defendant's  civil rights  without expressly

            providing that he may not possess firearms, the offense would

            not constitute a "conviction" under the federal law.   

                 By virtue of the general saving statute, 1 U.S.C.   109,

            however,  petitioner's case  was properly prosecuted  under  

            1202(a).

                 The repeal of any statute shall not have the effect
                 to release or  extinguish any penalty,  forfeiture,
                 or  liability incurred  under such  statute, unless
                 the repealing Act  shall so expressly  provide, and
                 such statute shall be treated as still remaining in
                 force  for  the  purpose of  sustaining  any proper
                 action  or prosecution for  the enforcement of such
                 penalty, forfeiture, or liability.  

            1 U.S.C.   109.

-5-

The  saving statute abolished the common-law presumption

            that  repeal of a criminal statute results in an abatement of

            prosecutions  for  acts  committed  prior  to  the  statute's

            repeal.    It fosters,  instead,  a  Congressional policy  of

            avoiding technical  abatements and  a determination that  one

            who violates the law  should not escape sanction by  the mere

            happenstance that the law was repealed after the criminal act

            was committed.  The saving  statute is equally applicable  to

            statutory repeals  coupled with reenactments (as  here) as it

            is to  outright repeals.  See  Warden, Lewisburg Penitentiary
                                      ___  ______________________________

            v. Marrero,  417  U.S. 653,  660  (1974); Bradley  v.  United
               _______                                _______      ______

            States, 410 U.S. 605 (1973).  
            ______

                 Since petitioner's  offense was properly the  subject of

            indictment  and  conviction  under     1202(a),  despite  the

            statute's  repeal  and   reenactment  prior  to  petitioner's

            indictment, we see  no reason to now revisit the facts of his

            case  for the  purpose of  determining whether  the predicate

            "convictions"  would  be similarly  defined  under the  later

            amendment.   The change made by the  amendment to 18 U.S.C.  

            921(a)(20) seems to  us to  be the very  type of  substantive

            change contemplated  by the  saving statute, as  it redefines

            the conduct that  may result  in liability.   But cf.  United
                                                          _______  ______

            States v. Kolter, 849 F.2d 541, 544 (11th Cir. 1988).     
            ______    ______

                 In  denying retroactive  effect  to the  amendment to   

            921(a)(20), we join  the majority of circuit courts that have

-6-

ruled on the question.  Davis v. United States, 972 F.2d 227,
                                    _____    _____________

            230 (8th Cir. 1992); United States v. Brebner, 951 F.2d 1017,
                                 _____________    _______

            1023  (9th Cir. 1991); United States v. Holley, 818 F.2d 351,
                                   _____________    ______

            353 (5th Cir. 1987). 

                  We are  aware that  one circuit  court has  reached the

            opposite   result  by   applying   the   rule  of   statutory

            interpretation  described  in  Bradley  v.  School  Board  of
                                           _______      _________________

            Richmond,  416 U.S. 696 (1974).  See United States v. Kolter,
            ________                         ___ _____________    ______

            849 F.2d  541,  545 (11th  Cir. 1988).   In  Bradley, it  was
                                                         _______

            reasoned  that a court should apply "the law in effect at the

            time it renders its decision, unless doing so would result in
                                          ______

            manifest  injustice   or  there  is  statutory  direction  or

            legislative history  to the contrary."  Bradley,  416 U.S. at
                                                    _______

            711 (emphasis added).   We have previously  indicated that we

            do  not  think this  principle  is  ordinarily applicable  to

            changes  in   substantive  criminal  law.   United  States v.
                                                        ______________

            Havener, 905 F.2d 3, 5-6  (1st Cir. 1990).  In any  event, we
            _______

            also  agree  with  those  courts  which  have  found  in  the

            legislative history and statutory  design of the amendment to

               921(a)(20), indications  of a  Congressional direction  to

            apply  the amendment  prospectively only.   See  Brebner, 951
                                                        ___  _______

            F.2d  at  1023 &  n.6  (Congress manifested  its  intent that

            amendment   should  not  apply   retroactively  by  expressly

            delaying   its   effective   date   for   six   months  while

            simultaneously  designating  other  statutory  revisions  for

-7-

immediate effectiveness); Davis, 972 F.2d at 229-30 (Congress
                                      _____

            expressed intention to avoid retroactive effect  by expressly

            limiting use of amended   921(a)(20) definition to Chapter 44

            of the  Act, despite Congressional awareness  that repealed  

            1202(a) would  continue to  apply to pending  cases); Holley,
                                                                  ______

            818  F.2d  at  353-54  (legislative  history  shows  Congress

            intended amendment  to expand  class of persons  eligible for

            relief under Act, not to change previous law). 

                 For the  reasons stated, we affirm  the district court's
                                             ______

            dismissal  of  petitioner's      2255  motion  and  his  four

            subsequent motions. 

__________________

__________________ 

-8-