No. 96-8311 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 CHARLES A. GINN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly affirmed petitioner's sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e) . (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8311 CHARLES A. GINN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A2) is not reported. JURISDICTION The judgment of the court of appeals was entered on January 16, 1997. The petition for a writ of certiorari was filed on March 17, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following a plea of guilty in the United States District Court for the Southern District of Alabama, petitioner was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 922 (g) (1). He was sentenced to 210 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. --------------------------------------- Page Break ---------------------------------------- 2 1. On June 3, 1993, petitioner, a convicted felon, was arrested on outstanding warrants for robbery and burglary. At the time, he was in possession of a .38 caliber pistol. Gov't C.A. Br. 10-11. In April 1994, petitioner was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. 922 (g) (1). Pet. App. D1-D3. The indictment listed three of petitioner's previous felony convictions: a 1984 conviction for attempted simple burglary, and two separate 1988 convictions for armed robbery. Id. at D1. A "penalty page" attached to the indictment (id. at D3) indicated that petitioner was subject to the Armed Career Criminal Act (ACCA), which establishes enhanced penalties for a person who has violated 18 U.S.C. 922 (g) and who "has three previous convictions * * * for a violent felony or a serious drug offense." 18 U.S.C. 924 (e). On July 5, 1994, petitioner and the government entered into a plea agreement in which petitioner agreed to plead guilty to being a felon in possession of a firearm. In exchange, the government agreed to recommend that petitioner be sentenced at the low end of the applicable Guidelines range. Both parties reserved the right to contest the calculation of the Guidelines range. The agreement further provided that "if [petitioner] is found to be an armed career criminal the government will recommend that he serve the minimal mandatory 15 years." Also on July 5, 1994, the district court accepted petitioner's plea. At the hearing, the government reiterated that it considered petitioner to be an armed career criminal subject to the ACCA's ---------------------------------------- Page Break ---------------------------------------- 3 15-year minimum term of imprisonment. 7/5/94 Plea Tr. 9-10. The September 1994 presentence report described four previous convictions that could qualify as predicate convictions under the ACCA, including petitioner's two separate 1987 armed robbery convictions, a July 1987 conviction for a residential burglary in Jefferson Parish, Louisiana, and a January 1994 conviction for a residential burglary in Mobile, Alabama. The PSR also explained that the 1984 conviction for attempted simple burglary involved an attempt to burglarize a vehicle. Pursuant to Guidelines 4B1.4, and Section 924 (e)'s 15-year mandatory minimum sentence, the PSR calculated petitioner's Guidelines range to be 180 to 210 months' imprisonment. Petitioner filed objections to the PSR, challenging each of the prior crimes that the government and the PSR had identified as justifying enhancement under the ACCA. He argued that his two 1987 armed robbery convictions were constitutionally invalid on the ground that he was not competent when he pleaded guilty to the offenses; that the 1984 conviction for attempted burglary of a vehicle was not a "burglary" within the meaning of Section 924 (e) (2) (ii); that the court needed discovery to determine whether the 1987 Louisiana residential burglary conviction was a burglary under Section 924 (e) (2) (ii); and that the January 1994 Alabama residential burglary conviction should not count as an ACCA predicate offense because it occurred after petitioner had violated Section 922 (g). The PSR addressed each of petitioner's objections. It noted ---------------------------------------- Page Break ---------------------------------------- 4 that, under Custis v. United States, 511 U.S. 485, 487 (1994), petitioner could not collaterally attack the constitutionality of his armed robbery convictions as a basis for an ACCA sentencing enhancement, absent a showing that his guilty pleas were uncounseled. 1. The PSR agreed with petitioner that the 1984 vehicular burglary conviction should not be counted as a predicate offense for an ACCA enhancement. The PSR concluded that the 1987 Louisiana burglary conviction should be counted as an ACCA predicate offense because the indictment charged petitioner with burglarizing an inhabited dwelling. Finally, the PSR recommended that the court base the ACCA sentence enhancement on petitioner's 1987 Louisiana residential burglary conviction and his two 1988 armed robbery convictions, rather than his January 1994 Alabama burglary conviction. At his November 16, 1994, sentencing hearing, the sentencing court entertained, but rejected, petitioner's constitutional challenge to the robbery convictions. 11/16/94 Sent. Tr. 32-44. The court also found that the 1984 conviction for vehicular burglary and the 1994 Alabama conviction for residential burglary counted as valid predicate convictions under Section 924 (e). Id. at 48, 52. Petitioner conceded that his 1987 Louisiana residential burglary conviction fell within the generic definition of burglary, as required by the ACCA. Id. at 60-61. The court thus ruled that all five convictions qualified as ___________________(footnotes) 1 The PSR also indicated that petitioner was represented by counsel in both cases. ---------------------------------------- Page Break ---------------------------------------- 5 predicate convictions under the ACCA. The court also rejected the government's recommendation that petitioner be sentenced at the low end of the Guidelines range and instead imposed a 210- month term of imprisonment. Id. at 65. It based its sentence on "the seriousness of [petitioner's] prior record, and the threat he [ ] poses to the community." Id. at 67. 2. Petitioner appealed his sentence. He argued, among other things, that the government could rely only on the predicate convictions named in the indictment for an ACCA enhancement, and that his 1984 conviction for attempted vehicular burglary and his 1994 Alabama conviction for residential burglary did not qualify as predicate convictions under the ACCA. See Pet. C.A. Br. 1. Petitioner did not challenge, however, the validity of the 1987 Louisiana residential burglary convictions as an ACCA predicate conviction. The court of appeal affirmed the sentence, stating that "[u]pon a de novo review, we hold the record supports the imposition of the enhanced sentence." Pet. App. A2. ARGUMENT Petitioner renews his claim that his sentence under Section 924 (e) was invalid because the enhancement was not based on the predicate offenses listed in the indictment (Pet. 5-9), and because two of his convictions - - the 1984 vehicular burglary and the 1994 residential burglary - - do not qualify as ACCA predicate offenses (Pet. 11-15). As the court of appeals correctly held, however, the record supports petitioner's sentence under Section ---------------------------------------- Page Break ---------------------------------------- 6 924 (e). 1. Petitioner argues (Pet. 5-9) that the government is barred from seeking an enhancement under the ACCA based on convictions that are not listed in the indictment. Section 924 (e), however, contains no requirement that prior convictions be listed in the indictment. Rather, it directs a court to enhance the sentence of a Section 922 (g) felon who has three previous convictions of a violent felony or serious drug offense. 18 U.S.C. 924 (e); see United States v. Cobia, 41 F.3d 1473, 1475 (11th Cir.) ("sentence enhancement pursuant to [Section] 924 (e) should automatically be applied by the courts regardless of whether the Government affirmatively seeks such enhancement"), cert. denied, 115 S. Ct. 1986 (1995); United States v. Johnson, 973 F.2d 857, 860 (10th Cir. 1992) ("Once the sentencing court was aware that the requirements of 924 (e) (1) were satisfied, the enhancement was mandatory. The statute does not require government action to trigger its application [.]"); United States v. Anderson, 921 F.2d 335, 337 (1st Cir. 1990) (enhancement under Section 924 (e) mandatory if requisite preconditions met). Federal Rule of Criminal Procedure 11 (c) (1) requires a defendant to be informed of any mandatory minimum penalty before the court's acceptance of a guilty plea. That requirement was met in this case. 7/5/94 Plea Tr. 11-13. And before the plea hearing, petitioner was on notice from the indictment, Pet. App. D3, and the plea agreement that the government considered petitioner eligible for enhancement under the ACCA, and it ---------------------------------------- Page Break ---------------------------------------- 7 reiterated that assessment at the plea hearing. 7/5/94 Plea Tr. 9-10. Contrary to petitioner's assertion (Pet. 7-8), his guilty plea was not contingent on a government "stipulation" that it would limit a request for an enhancement under the ACCA to the three predicate convictions listed in the indictment. The plea agreement does not mention which predicate offenses would form the basis of an enhancement under Section 924 (e). Nor does the July 1994 plea hearing contain any evidence of such stipulation. At the hearing, after counsel for the government recited the terms of the plea agreement, the court asked petitioner whether "anyone made any other or different promise or assurance in an effort to get you to plead guilty." 7/5/95 Plea Tr. 9-10. Petitioner answered, "No." Id. at 10. After the entry of the plea, petitioner's counsel requested notice of the predicate convictions on which the government would rely for enhancement under Section 924 (e). Id. at 21. Counsel for the government agreed to provide such notice, and also stated that "the predicate felonies are laid out in the indictment." Id. at 22. The government did not state or "stipulate" that the convictions in the indictment were the only ones upon which the government would rely. In any event, petitioner was soon thereafter provided notice of all the potential convictions in the September 1994 PSR. Due process requires a defendant "to receive reasonable notice and an opportunity to be heard relative to [a] recidivist ---------------------------------------- Page Break ---------------------------------------- 8 charge." Oyler v. Boles, 368 U.S. 448, 452 (1962). That requirement was met in this case. The PSR itemized four felony convictions that could qualify as ACCA predicates. The PSR, moreover, specifically identified three of the felonies on which it recommended that the court base an ACCA enhancement: the 1987 Louisiana conviction for residential burglary, and the two 1988 convictions for armed robbery. Petitioner had a full opportunity to contest - - indeed he did contest - - each of the felonies which could form the predicate for the enhancement. 2. Petitioner also argues that his 1984 vehicular burglary conviction does not meet the definition of "burglary" under Section 924 (e) (2) (B) (ii) (Pet. 11-13) and that his 1994 Alabama residential burglary conviction does not constitute a predicate offense under Section 924 (e) because it occurred after petitioner violated Section 922 (g) (Pet. 14-15). As the sentencing court correctly found, however, the three other convictions identified in the PSR - - petitioner's two separate 1988 convictions for armed robbery and the 1987 Louisiana conviction for residential burglary - - qualify as predicate offenses under Section 924 (e). 11/16/94 Sent. Tr. 32-44, 60-61. Petitioner's convictions for armed robbery are "violent felonies" under the ACCA, 18 U.S.C. 924 (e) (2) (B) (ii), and, under this Court's decision in Custis v. United States, 511 U.S. 485, 487 (1994), they are not subject to collateral attack. Petitioner's 1987 Louisiana residential burglary conviction similarly is a violent felony under Section 924 (e) (2) (B) (ii), because it falls within the generic definition ---------------------------------------- Page Break ---------------------------------------- 9 of burglary. See Taylor v. United States, 495 U.S. 575, 599 (1990). Because petitioner does not challenge those convictions, his challenges to his 1984 vehicular burglary conviction and his 1994 Alabama residential burglary conviction, even if they had merit, would have no effect on his eligibility for sentence enhancement under the ACCA. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney JUNE 1997