United States v. Sullivan

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-2194



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 DANIEL G. SULLIVAN,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                 ____________________



                                        Before



                               Torruella, Chief Judge,
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                                Boudin, Circuit Judge,
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                              and Lisi,* District Judge.
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                                _____________________



               David  J.  Fine, by  Appointment  of  the Court,  with  whom
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          Dangel, Donlan & Fine, was on brief for appellant.
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               F. Mark Terison, Assistant United States Attorney, with whom
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          Jay  P.  McCloskey,  United  States Attorney,  and  Elizabeth  C.
          __________________                                  _____________

          Woodcock,  Assistant United  States Attorney,  were on  brief for
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          appellee.


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                                   October 29, 1996

                                 ____________________

                              
          ____________________



          *  Of the District of Rhode Island, sitting by designation.



LISI, District Judge.
                    LISI, District Judge
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                                    I.  BACKGROUND
                                    I.  BACKGROUND



                    Following  a four  day trial,  a jury  found defendant-



          appellant Daniel G. Sullivan guilty of receiving a stolen firearm



          after previously having been convicted  of a felony ("Count  I"),



          aiding and abetting the sale of stolen firearms ("Count II"), and



          aiding and abetting  the sale  of firearms to  a convicted  felon



          ("Count  III").  Finding that  Sullivan had been  convicted of at



          least three  prior crimes of  violence or serious  drug offenses,



          the district court sentenced Sullivan as an armed career criminal



          pursuant to U.S.S.G.   4B1.4.  The  court imposed prison terms of



          188 months  on Count I  and 120 months  on each of Counts  II and



          III,  to  be  served  concurrently, with  five  years  supervised



          release thereafter.



                    Sullivan challenges the district  court's determination



          of  his status as an armed career  criminal for the first time on



          appeal,  a fact that Sullivan concedes  in his brief.  He alleges



          no error  with respect  to the  offense of  conviction, sometimes



          referred  to  as the  "triggering  offense."   See,  e.g., United
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          States v.  Bell, 966 F.2d 703, 705 n.5 (1st Cir. 1992).  Instead,
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          Sullivan  attacks the  district  court's use  of his  prior state



          court  convictions as  predicate  offenses for  the armed  career



          criminal  determination on two fronts.  For the reasons set forth



          below,  this court  rejects  each of  Sullivan's contentions  and



          affirms the district court's sentence.


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II.  DISCUSSION
                                   II.  DISCUSSION



                                A.  Standard of Review
                                A.  Standard of Review
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                    At  the outset,  it  is incumbent  upon  this court  to



          delineate the correct standard of its review.  It is well-settled



          in this circuit that arguments which an appellant failed to raise



          in  contemporaneous objections below are effectively forfeited on



          appeal and reversible only  if an appellant can  establish "plain



          error."   United States  v. Winter,  70 F.3d  655, 659  (1st Cir.
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          1995),  cert. denied,  116 S.  Ct. 1366  (1996); see  also United
                  ____________                             _________ ______



          States  v.  Alzanki, 54  F.3d 994,  1003  (1st Cir.  1995), cert.
          ______      _______                                         _____



          denied, 116 S. Ct. 909 (1996); United States v. Griffin, 818 F.2d
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          97,  100 (1st Cir.),  cert. denied, 484  U.S. 844 (1987).   Under
                                ____________



          this standard, an  appellant must establish:  "(1) 'error,' i.e.,
                                                                      ____



          a '[d]eviation from a legal rule'; (2) that  the error is 'plain'



          or 'obvious';  and (3) that the plain error affected 'substantial



          rights.'"    United States  v. Winter,  70  F.3d at  659 (quoting
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          United States v. Olano, 507 U.S. 725, 732 (1993)).  Regardless of
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          whether an appellant bears this  burden, however, the decision to



          correct the error is entirely discretionary.  See id.  We proceed
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          to address Sullivan's two arguments in light of these principles.



                          B.  Sufficiency of the Indictment
                          B.  Sufficiency of the Indictment
                              _____________________________



                    Sullivan's first argument  concerns the sufficiency  of



          the indictment under which  he was charged.  Sullivan  avers that



          the  list of his prior  state court convictions  contained in the



          indictment did not  contain three  convictions valid  for use  as



          predicate offenses under the  Armed Career Criminal Act ("ACCA"),


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18  U.S.C.    924.   A  thorough  examination of  the  indictment



          undercuts this argument, however.



                    The indictment lists  a number  of Sullivan's  previous



          convictions,  ranging from  simple  drug possession  in 1970,  to



          burglary in  1983.  Sullivan does not challenge the use of two of



          these convictions, the burglary  conviction on May 18, 1983,  and



          one on October 29, 1992  for arson, as predicate offenses.1   The



          issue  raised  on   appeal  is  whether  any  of   the  remaining



          convictions were valid for use as a third predicate offense.



                    With  respect  to  this  issue,  Sullivan  devotes  the



          majority  of  his  efforts  to   arguing  why  his  several  drug



          convictions, a conviction for possession of bomb materials, and a



          generic  conspiracy  conviction   are  inadequate  to   serve  as



          predicate offenses.  We need not address these contentions.



                    The presentence  report reveals that Sullivan  had four
                                                                       ____



          prior  state court burglary convictions,  not one, as  he and the



          indictment suggest.   This  inconsistency is attributable  to the



          fact that the convictions were consolidated for sentencing in the



          state court in  which Sullivan was tried.  It  is clear, however,



          that the burglaries took place  on different dates, involved four



          different victims, and involved four distinct sentences.



                    It  is well-settled  in  this circuit  and others  that



          crimes  which   were  committed  on  different   dates,  involved



          different  locations, and  targeted different  victims are  to be

                              
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          1  Sullivan declines to do so for good reason:  the term "violent

          felony"  is defined by statute to include the crimes of arson and

          burglary.  See 18 U.S.C.   924(e)(2)(B).
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treated as  distinct for  purposes of 18  U.S.C.    924(e).   See
                                                                        ___



          United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995); United
          _____________    ______                                    ______



          States  v.  Lewis, 40  F.3d 1325,  1346  (1st Cir.  1994); United
          ______      _____                                          ______



          States  v.  Godinez,  998  F.2d  471,  472-73  (7th  Cir.  1993).
          ______      _______



          Accordingly,  any three of  the five prior  state convictions for



          burglary  or arson  could have  served as the  predicate offenses



          necessary to sentence Sullivan as an armed career criminal.



                    Any  argument that  Sullivan did  not receive  adequate



          notice that the government intended  to seek an enhancement under



          the  ACCA   because  the  four  burglary   convictions  were  not



          delineated  in the  indictment must  also fail  for two  reasons.



          First,  the government  "need  not allege  in the  indictment the



          three  prior felonies that it  will use to  enhance a defendant's



          sentence under    924(e)(1)."   United States v.  Tracy, 36  F.3d
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          187, 198 (1st Cir.  1994), cert. denied, 115 S.  Ct. 1717 (1995);
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          see also United  States v. Rumney, 867 F.2d 714,  719 (1st Cir.),
          ________ ______________    ______



          cert.  denied, 491 U.S. 908 (1989).   Second, notwithstanding the
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          government's failure to elucidate  the specific felonies it would



          use as predicate crimes, it did announce its intention to seek an



          enhanced sentence under  the ACCA  in both the  indictment and  a



          trial brief filed  prior to  commencement of trial.   See  United
                                                                ___  ______



          States v. Tracy,  36 F.3d at  198; United  States v. Rumney,  867
          ______    _____                    ______________    ______



          F.2d at 716.  Accordingly, we find no plain error with respect to



          this issue.



                           C.  Restoration of Civil Rights
                           C.  Restoration of Civil Rights
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                    Sullivan's  second argument  is  grounded in  18 U.S.C.


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921(a)(20).  This section provides that "[a]ny conviction which



          has been  expunged, or set aside  or for which a  person has been



          pardoned or has had civil rights restored shall not be considered



          a  conviction for  purposes of  [the ACCA],  unless  such pardon,



          expungement, or  restoration of civil  rights expressly  provides



          that the  person may  not ship,  transport,  possess, or  receive



          firearms."   18 U.S.C.   921(a)(20).  Sullivan relies on the fact



          that various laws enacted by the  State of Maine between 1975 and



          1981  served to restore the civil rights that had previously been



          denied to those convicted of felony offenses.



                    Civil  rights generally encompass  "the right  to vote,



          the right to seek and hold  public office, and the right to serve



          on a jury."  United States v. Caron, 77 F.3d 1,  2 (1st Cir.) (en
                       _____________    _____



          banc),  cert. denied, 116  S. Ct. 2569  (1996).  At  one point in
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          time, the State of Maine denied these rights to felons.  In 1975,



          however, Maine reversed course and restored these rights.  At the



          time of  Sullivan's state  court arson and  burglary convictions,



          the  restoration  effort by  Maine  was  complete:   felons  were



          permitted to  vote, hold office, and  serve on a jury.   As such,



          Sullivan  invites  us to  provide  a  favorable response  to  the



          question left open  in this  circuit by Caron,  that is,  whether
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          civil  rights  which  have  never  actually  been  forfeited  can



          nonetheless be "restored."



                    We  need  not  answer  this   question  here,  however.



          Section  921(a)(20)  provides that  a conviction  may serve  as a



          predicate offense under the ACCA notwithstanding the  restoration


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of civil rights theretofore  forfeited if the restoration statute



          imposes  a  restriction  on  the felon's  ability  to  possess  a



          firearm.  18 U.S.C.   921(a)(20).  While the restoration statutes



          enacted  by  Maine did  not include  an  explicit restraint  on a



          felon's  ability to  possess  a firearm,  such restrictions  were



          already in  place in Maine.   See Me. Rev. Stat. Ann.  tit. 15,  
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          393 (West 1995);2 see  generally Passamaquoddy Tribe v.  State of
                            ______________ ___________________     ________



          Maine,  75 F.3d  784,  789  (1st  Cir.  1996).    Therefore,  the
          _____



          statutory restrictions imposed on a  felon's ability to possess a



          firearm in Maine  afford Sullivan no  relief from the  sentencing



          enhancements of the ACCA.



                    We  think it  is unnecessary  to elaborate  because our



          reading of  the statute  is that  followed by  a majority of  the



          circuits that  have spoken to  the need  to read state  law as  a

                              
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          2  This statute provides, in pertinent part:



                    1.  Possession prohibited.   A person may not

                    own,  possess  or  have  under  that person's

                    control  a  firearm, unless  that  person has

                    obtained a permit under this section, if that

                    person:

                      A.   Has been  convicted of a  crime, under

                    the laws of the  United States, this State or

                    any  other  state,  that  is   punishable  by

                    imprisonment for one year or more . . . .

                    2.   Application  after  5 years.   A  person

                    subject to  the  provisions of  subsection  1

                    may, after the expiration of 5 years from the

                    date  that the  person is  finally discharged

                    from the sentences imposed as a result of the

                    conviction  or  adjudication,  apply  to  the

                    Commissioner of Public Safety for a permit to

                    carry  a firearm.    That person  may not  be

                    issued a permit to carry a  concealed firearm

                    . . . .



          Me. Rev. Stat. Ann. tit. 15,   393 (West 1995).



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whole.   Indeed, apart from the District of Columbia Circuit, see
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          United  States  v. Bost,  87 F.3d  1333  (D.C. Cir.  1996), every
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          circuit  court that has addressed the issue appears to have taken



          the  approach that we follow  here.  See  United States v. Burns,
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          934 F.2d 1157, 1159-61  (10th Cir. 1991), cert. denied,  502 U.S.
                                                    ____________



          1124  (1992); United  States v.  McLean, 904  F.2d 216,  218 (4th
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          Cir.), cert. denied, 498 U.S. 875 (1990); United States v. Erwin,
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          902 F.2d 510, 513 (7th Cir.),  cert. denied, 498 U.S. 859 (1990);
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          United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.  1990); cf.
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          United States v. G mez, 911 F.2d 219, 221-22 (9th Cir. 1990).  We
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          reserve decision  on a  further question,  which appears  to have



          divided the  circuits  more  closely,  as to  whether  a  firearm



          restriction  in a  state statute  would be  sufficient in  a case



          where  the defendant received  a document such  as a  pardon or a



          certificate that  purported to restore  all civil rights  but did



          not expressly mention any  restrictions with respect to firearms.



          See United States v. Erwin, 902 F.2d at 512-13.
          ___ _____________    _____



                    Accordingly, the district court properly used the state



          arson and burglary convictions as predicate offenses for purposes



          of determining his  sentence pursuant to  the ACCA.   We find  no



          plain error.



                                   III.  CONCLUSION
                                   III.  CONCLUSION



                    For the foregoing reasons,  the sentence imposed by the



          district court is affirmed.
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