United States v. Concha

X249 with Aplt. Defendant.” Br. at 18-19. This is the extent of Plaintiffs’ argument, UNITED STATES of America, made without benefit of authority on es- Plaintiff-Appellee,

toppel; it is insufficiently developed for appeal. Indus., Inc., See Koch v. Koch 1202, Cir.), 1238-39 cert. de Joseph CONCHA, Santana —nied, -, U.S. 302, S.Ct. Defendant-Appellant. (2000); Adler, L.Ed.2d 242 144 F.3d at 679 No. 99-2171. (stating “[a]rguments inadequately briefed in the opening waived”); brief are Fed. United States Court of Appeals, R.App.P. 28(a)(9). Moreover, under Colo Tenth Circuit. law, rado the doctrine of promissory estop- pel requires party to be estopped 1, Dec. make promise “[a] which promisor should reasonably expect to induce action or forbearance on part of the promis ” ee.... Bd. County Comm’rs Sum County DeLozier,

mit 714, 917 P.2d

(Colo.1996)(en banc). To establish a claim

of equitable estoppel law, under Colorado

the party to be estopped must make a

misstatement of fact. Id. Plaintiffs have point

failed to to any promise or misstate

ment of material fact made by American

Guarantee in the record that to the led reliance,

insured’s detrimental let alone

that of the Plaintiffs. Plaintiffs’ estoppel

claim thus fails.

Plaintiffs have failed to raise genuine

issue of material fact regarding an essen-

tial element of prima their facie ease-

whether there was coverage under

American Guarantee E & O policy. The

only admissible evidence the record re-

flects Gregory’s Employers insurance expired

contract October 1995 and that

he did not obtain subsequent E & O cover-

age 1,1996. until May Due to lapse

coverage, the American policy Guarantee

only acts, errors, covers omissions

occurred after May 1, 1996 until the end of

the policy period. Gregory’s acts, Because

errors, or omissions that led to Plaintiffs’

claims occurred well before May

there is no coverage under the American policy.

Guarantee

AFFIRMED. Federal Jameson, Assistant

Thomas B. NM, for Defender, Albuquerque, Public Defendant-Appellant. Kimball, Assistant D.

Robert (John Kelly, United J. Attorney States brief), him on Attorney, with Plaintiff-Appellee. NM, for Albuquerque, HOLLOWAY, and BALDOCK, Before EBEL, Judges. Circuit EBEL, Judge. Circuit convicted was Concha Joseph Santana felon in being a and of assault at least he had Because firearm. of a felo- for violent previous three enhanсed nies, was his sentence appeal, Act. On Criminal Armed Career and both his conviction challenges Concha jur- haveWe enhancement. the sentence 3742(a) and 28 under U.S.C. isdiction § 1291. must his conviction argues Concha gave district because be reversed instruction ignorance” a “deliberate that Con- was no evidence there jury when We anything. deliberately ignored cha was instruction giving find that ‍​​‌​‌​​​‌‌‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌​​​‌​​​​​​‌​​‍(1) a correct it was error because (2) law, prosecution statement theo- deliberate-ignorance argue a did not (3) did case, the instruction ry of be- rights substantial affect Concha’s actual of Concha’s cause the evidence overwhelming. was knowledge enhance- sentence attacks the Concha predicate of his four three ment in the place took Fourth Contrary to Kingdom. statutory Circuits, found the which Sixth find unambiguous, language unclear Congress whether intended to in- 924(e), which increases the penalty for clude foreign predicate convictions as of- being a felon in possession of a firearm if fenses under the Armed Career Criminal the defеndant has three convic- Act. Because are strong arguments tions for violent felonies. government The on both sides of the question, we invoke introduced evidence prior of four convic- the lenity rule and hold that tions: for burglary in 1970 and convictions should not 1976, be counted. 1975, conviction for in arson and a conviction for a “Lewd and Lascivious Act We thus AFFIRM the conviction but Involving Child Under 14” in 1980. The VACATE the sentence and REMAND. first three of these —the convictions for burglary and arson —took place in the BACKGROUND Kingdom; the fourth conviction On the night 10, 1997, of December Jo- was from California. The district court seph Santana Concha and his half-sister accepted this evidence over Concha’s ob- were brought to the Taos police station in jection and sentenced Concha to 180 connection with a dispute. domestic Con- imprisonment, months’ the statutory mini- cha, drunk, who was became verbally abu- mum. See 18 U.S.C. sive toward the dispatcher. Sergeant Concha raises two issues on appeal. Danny Anthony Pacheco intervened and a First, he argues that the district court’s ensued, scuffle during which Concha ignorance” “deliberate jury instruction was gained possession of gun. Pacheco’s loaded not warranted by the evidence. Second, Sergeant Pacheco testified that Concha he argues that prior the convictions do not tried to him, shoot but jammed Pacheco meet requirements the of the Armed Ca- two fingers of his behind the trigger to Act, reer Criminal and so his enhancement prevent firing. from Pacheco wrested was improper. part, Concha contends gun away and, from Concha with the that foreign convictions should not be help of dispatcher, subdued him. counted toward the three convictions re- charged Concha was with assault with quired by the Armed Career Criminal Act. intent to commit murder and assault with (Counts a dangerous weapon III), I and DISCUSSION use of firearm in with connection these (Counts two counts II IV), and and I. Jury felon in Instructions (Count possession V). of a firearm Concha Concha did not object to the de stipulated that he a felon was and admitted liberate instruction at trial. We hitting Sergeant testified, Pacheco. He therefore review it рlain error. See however, drunk, confused, that he was and 30, 52(b); Fed.R.Crim.P. United States v. missing glasses; his he did not intend to Bornfield, 1123, (10th 145 F.3d 1129 Cir. murder; commit although he did not 1998), petition denied, to recall mandate believe that he taken gun had during (10th 184 F.3d 1144 Cir.1999), cert. de the struggle, he was sure whether he nied, -, U.S. 986, 120 S.Ct. 145 had possession obtained of it. (2000). L.Ed.2d 935 A plain error is jury acquitted The Concha on Counts I grounds (1) only reversal when IV, through convicting him instead on (2) two error is clear or obvious and it affects counts of the lesser charge included the defendant’s rights. substantial simple assault 113(a)(5), 18 under U.S.C. McHorse, United Statеs v. 889, 179 F.3d V, convicted him on Count being Cir.), denied, 903 944, cert. 528 U.S. felon in possession of a firearm 358, (1999). violation 120 S.Ct. 145 L.Ed.2d 280 “It of 18 U.S.C. 922(g)(1). government The is the defendant rather than Govern sought to enhance his sentence under the ment who bears the persuasion burden Armed Career Act, Criminal with respect prejudice.” United States instruction, we conclude 1770, ranee S.Ct. Olano, U.S. giving error nowas there that (1993). L.Ed.2d bur- met his has Concha instruction. instructed district The affect- the instruction showing that den being Concha convict jury rights.1 his substantial ed Cf. firearm, it had aof felon Scott, 1578-79 possessed knowingly he had сonclude delib- improper Cir.1994) (finding that then instructed The court a firearm. harm- can be instruction erate-ignorance as follows: jury error). less term as “knowingly,” word The overwhelming evidence Here, was in these time time to from been pos he knowledge that actual Concha’s of was the act instructions, that means that gun, such Pacheco’s Sergeant sessed intentionally, and and voluntarily done to compelled be would jury “a reasonable accident. or mistake of because not v. United States See knowledge. find” de- part thе knowledge on While Cir.1992) (10th 1026, 1035 Barbee, 968 F.2d merely established be cannot fendant deliberate-ignorance (finding improper was the defendant demonstrating that was there when harmless instruction foolish, knowledge careless, or negligent, actual knowl of “overwhelming” evidence deliber- the can be defendant if inferred com would jury be “a reasonable and edge to existence the blinded ately of himself find). unre- According to the so to pelled” a fact. Pacheco, stated Concha testimony of futed con- added). does Conсha (Emphasis gun “grab [Pacheco’s] he would that statement is an inaccurate that this tend Martinez, police the Michael him. shoot” iden- recently upheld Indeed, we law. the going say, “I’m Concha heard dispatcher, plain-error the instructions tical to kill going and I’m ... your gun get to Delreal- States United See standard. ass_ kill to ... going I’m ... your (10th 1263, n. 3 1267 Ordones, F.3d 213 then that Concha testified Pacheco you.” in- (“[T]he adequately Cir.2000) instruction out of weapon, pulled it the reached con- only would be Defendant that sured holster, with Pacheco wrestled Pacheco’s rather was willful ignorance if his victed ribs, unprotected it at Pacheco’s aimto Rather, argues Concha negligent.”). than trigger. pull to the tried evidence not sufficient is that sup- “may the record to have” in he that ignorance testified

deliberate Concha this evaluating Pacheco, In “[e]ven but that kill this instruction. to port threatened most light in a there, guarantee claim, the I can we view evidence intention was the if id. at See carry out shape” the Government. to I was no favorable you days Just two was intoxicated. 1264. hе because however, a gave incident, Concha the after that instruct- recognized This he in which police the statement oral “is on deliberate jury the ing Although gun. taking Pacheco’s admitted it is rare appropriate,” rarely accuracy on the doubt tried cast a Concha that evidence present government acknowledged trial, he at of that statement knowledge deliberately avoided defendant “beyond a shadow say he could de See matter. of a Viewed gun.” take that did not a doubt I F.2d Francisco-Lopez, govern- to most favorable light in the curiam). need Cir.1991) But we (10th (per is over- evidence ment, uncontested this one this was whether not decide knowledge actual as to Concha’s whelming deliberate-igno- warrants rare cases prosecutor re- closing arguments, govern- analysis that the to our relevant 1. It is of Concha’s con- the evidence jury that this argue peatedly to the stressed did not ment viction on the predicated knowledge. ‍​​‌​‌​​​‌‌‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌​​​‌​​​​​​‌​​‍could should actual Indeed, in deliberate-ignorance instruction. that he possessеd gun. Pacheco’s reer Criminal Act. See United States v. Sasser, United States v. Bull, F.2d Cir.1999). 182 F.3d (10th Cir.1992) (“[W]hen ev- sufficient Concha was convicted of being a felon guilt exists, idence of defendant’s firearm, of a in violation of 18 tendering of a ‘willfulblindness’ instruction § 922(g). The Armed Career. beyond is harmless reasonable doubt provides Criminal Act that if person such a government even when the does not intro- “has three by any duce evidence to support such a theory.”). court referred to in section 922(g)(1) of recognize cases, We that in some a de this title for a felony violent or a serious liberate-ignorance might instruction allow drug offense,” he imprisoned must be for a jury to convict a negligent, defendant for minimum of years. fifteen 18 U.S.C. knowing, rather than acts. See United government The introduced Hilliard, States v. 1509, 1517 31 F.3d evidence of four prior felony convictions. Cir.1994) (finding error because the evi Three of these convictions place took dence of knowledge actual was not compel Kingdom. Concha challenges ling); de Francisco-Lopez, at use these convictions on several сase, however, the chal grounds, including lenged instruction explicitly instructed the are not by “convictions any court” within jury that neither mistake nor negligence the meaning §of was sufficient support to a conviction. 924(e)(1) Section requires This distinguishes the “three previ- instruction from the ous by one that convictions disapproved any court we de to in referred Francisco- 922(g)(1) section Lopez. of The de this title.” Francisco-Lopez instruc The cross- referenced tion section phrases “used the states: ‘high probability’ and ‘average ordinary person’ of —both (g) It shall be for any person— unlawful imply which objective standard that (1) who has been convicted any possibly could lead a to jury conclude that of, a punishable crime by im- proper standard for conviction was prisonment exceeding a term one for Sasser, negligence.” 974 F.2d at 1552. year; Here, contrast, by the instruction subjective standard —that “the defendant

deliberately blinded himself to the exis to ... possess ... any firearm or am- tence of a fact.” Bornfield, 145 F.3d at ... munition. Cf. (holding that an instruction similar to added). § 18 U.S.C. Thus, (emphasis that given focusing here on the individual the plain language §of 922(g)(1) gives no defendant error). did not constitute plain guidance 924(e)(1) more § than does as to We remain mindful that “the delib what constitutes any “convictions by erate instruction should be given court.” only when evidence presented has been is, however, There statutory definition showing the defendant purposely contrived 921(20) § 18 U.S.C. that illuminates the to avoid learning the de truth.” Francisco- scope § 922(g)(1): Lopez, 939 F.2d at 1409. Nevertheless, we The term by “crime punishable impris- find that given the instruction in this casе onment for a term exceeding year” one did not affect Concha’s substantial rights does not include— and so was error. We therefore affirm Concha’s conviction. (A) any Federal State per- or offenses taining violations, to antitrust unfair II. Sentence Enhancement practices, trade, trade restraints of or We review de novo sentence en other similar relating offenses to the imposed under hancements the Armed Ca- regulation practices, business 4A1.2(h), § but history, see criminal dant’s classified (B) offense any State used, judge’s in the be them to to allow aas misdemeanor State laws depar- upward for an discretion, as a basis imprison- by a term punishable 4A1.3(a). anoma- be It would ture, see less. years or ment of two to en- foreign convictions to use lous not added). 921(20) (emphasis when sentence felon-in-possession hance a certain federal excludes definition This convictions, but prior two are one or makes 922(g)(1), but from crimes state three there are when use their require to crimes. foreign mention comparable no convictiоns. previous foreign to cover meant 922(g)(1)were §If foreign to allow reluctant further We are anoma- with the crimes, be left we would of predicate used as to be crimes domestic fewer situation lous Act Criminal Career an Armed fenses foreign than would be be would covered statuto of a clear absence in the conviction who someone example, while For crimes. de criminal ry directive vio- antitrust of U.S. convicted had been given necessarily are not fendants a fire- possess allowed be would lation рrotections constitutional same anti- aof British arm, convicted someone This country. in this granted take for be allowed would violation trust compelling reason would concern is no reason to There a firearm.2 possess if previous foreign exclude pecu- intended Congress believe for a defendant no mechanism there were 922(g)(1). §in liar result validity of those challenge the punishable “crime Thus, the definition States, v. United In Custis convictions. exceeding one a term by imprisonment S.Ct. 1732, 128 L.Ed.2d U.S. that Con- evidence some provides yeаr” held that (1994), Supreme Court only to 922(g)(1) cover intended gress collateral 924(e) not authorize itself does Therefore, when crimes. and state federal convictions, ex predicate on the attacks requires Act Criminal Armed the Career on the based attacks jurisdictional cept for any court convictions previous “three to See right counsel. deprivation total it would 922(g)(1),” to in section referred left Custis 490, 494, 114 1732. S.Ct. at id. convictions. foreign exclude challeng however, intact, possibility the reading through for this a support find conviсtions predicate further ing We the 512, Sentencing Guide- at id. States petition. in habeas separate the J., en- (Souter, dissenting). the We 2K2.1 of Guidelines lines. Section 114 1732 S.Ct. being a felon in even after hances the sentence have held that (and hence fully where in cases has served a firearm been sentence in habeas felony directly a “prior two may one or be attacked defendant may bring habeas action), a a crime of violence a defendant either However, “be sentence the current against offensе.” petition substance ‍​​‌​‌​​​‌‌‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌​​​‌​​​​​​‌​​‍a controlled aby prior, and “controlled has been enhanced cause it of violence” “crime both v. Gamble conviction.” Guide- unconstitutional as offense” substance (10th Cir.1990); 117, Parsons, F.2d 118 898 to “under offenses lines are limited federal Clark, F.3d 203 v. States Sentencing also United see States law.” United or state Cir.) chal added). (5th a habeas (allowing 358, 364 (emphasis § 4B1.2 Guidelines 924(e) even a sentence under lenge to approach general with the comports This being is conviction whose “the state count when Guidelines, to which is not reh’g en banc a party”), challenged is a defen- computing foreign when it interpretation 922(g)(1) one give § to previous convic- case could neither 924(e)(1), §to applied without reference enhancement is for the be used tion § interpretation when is nei- 924(e), give violation different it a antitrust drug "serious felony” through § a nor applied a ther "violent it is However, no sense make it would offense." denied, Cir.2000), F.3d peti Criminal Act charge possible, is it find tion (U.S. cert. filed, 69 U.S.L.W. 3110 to be of limited utility in this matter. 2000) (No. July 21, 00-122). By analogy, First, a petition habeаs could not be filed therefore, possible is that a defendant until after the began defendant serving the charged under the Armed Criminal Career sentences. This might force the defen- Act could challenge predicate foreign con dant, who in some cases would not other- victions in a habeas proceeding, even wise incarcerated, be significant serve he though is no longer serving the foreign prison time before review. For example, sentence and the habeas action would not if all predicate convictions were foreign actually set aside the foreign conviction.3 convictions obtained in an improper man- is

There some authority for proposi- ner, and there were no other concurrent tion that a federal court may review a sentences, the defendant would not serve through conviction petition for a any time but for the improper convictions.4 writ See, corpus. of habeas e.g., Rosado v. Second, habeas, on the defendant bears Civiletti, (2d Cir.1980) the burden of proving the defects in the (in dictum, “reaffirm[ing] thе authority of previous convictions. It will often be con- the federal courts to hear process due siderably more difficult for a defendant to claims raised” against a Mexican convic- attack a foreign conviction than to attack tion by prisoners held on soil, American state or federal conviction. Records of but denying relief prisoner because the judicial proceedings may not kept in all waived his right challenge his Mexican countries, or may be incomplete with re- conviction in order tо be transferred to a spect to issues we would find constitu- prison States to serve out his sen- tionally significant.5 areWe disinclined to tence). But Neely Henkel, 180 U.S. cf. infer that Congress intended to impose 109, 122, (1901) S.Ct. 45 L.Ed. 448 this burden absent clear indication to the (suggesting, a deportation ease, that the contrary. constitutional provisions related to the writ of habeas corpus We are “have no aware relation the two courts of crimes committed appeals,that without jurisdiction have addressed question of the United States against have laws of held to the contrary. See United foreign country”). Assuming Atkins, such 872 F.2d Cir. collateral review of the foreign 1989); convictions Winson, United States v. 793 F.2d for the purposes of the (6th Armed Career 757 Cir.1986)6; see also United 925(c) 3.Section provides of 18 case, Title another In this Concha was sentenced to six 4. mechanism for a prospective felon to obtain months simple on the assault convictions. § relief from Secretary 922. The Treasury foreign of Without the convictions but consider- may restore privileges firearm ing prior felony California, tо a his convicted conviction in if "the applicant felon his likely being will not be sentence to for a act felon in in a manner dangerous Thus, would public to have safety been 41-51 months. and this ... granting the considerably of concern has the relief less force would not in Con- be contrary public cha’s case. the interest.” 18 U.S.C. 925(c). § Judicial review is also available under this statute, however, case, section. See id. Relief under 5. this Even in this which involves convic- depend does not on the tions from Kingdom, va- the United parties the lidity conviction, foreign dispute which is legal whether Concha the had counsel for problem addition, that we previous confront. In one of his Con- convictions. The British gress prevented any funds records being from to the submitted trial court do not used for this appear question. mechanism in the to resolve appropriations every See, year bills since e.g., 1992. Pub.L. 106-58, No. (1999). 113 Stat. 434 We prosecution Winson involved a have held that suspended these judicial acts 922(h)(1), § which at the time contained lan- 925(c). § relief under See Owen Magaw, v. guage § to that 922(g)(1): identical of “who (10th Cir.1997). 122 F.3d 1354 of, has been any in convicted a crime 1256 After Custis. in decision Court’s CR-94-0049, preme CR-94- Chant, Nos. v.

States at inappropriate is Custis, inquiry an (N.D.Cal. such Apr.4, 0185, 1997 WL made, at if rather, can be it Atkins), aff'd, sentencing; and 1997) (followingWinson review. Cir.1999). all, Bean on habeas (9th only see But F.3d 445 828, 837-38 States, F.Supp.2d v. United argument Thus, is a textual there and Win- Atkins (E.D.Tex.2000) (rejecting 924(e) convictions foreign § covers that make Circuits son). and Sixth The Fourth compet is a but there (“any” any), means counting favor of in arguments credible (the not that does argument it ing textual offenses predicate as convictions foreign 921(20) and federal state reference however, find we Ultimately, § 922. be crimes). policy are reasons There sway us lenity considerations that to include Congress intended lieve that cases. against these (foreign crimi foreign convictions previous the note Circuits Sixth and Fourth The do dangerous as be as likely to nals are section argument textual are criminals), equally but mestic any court.” by “convictions refers that Con to believe reasons strong policy “ term, being ambiguous hardly ‘Any’is (unfair foreign intend not so gress did Atkins, F.2d in nature.” all-inclusive diffiсul with challenged can be Martinez, States 96; United at see also all). history does legislative if The ty, at ‍​​‌​‌​​​‌‌‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌​​​‌​​​​​​‌​​‍Cir.1997) (citing a 421, 424 122 F.3d of “convictions meaning not illuminate holding “any” in dictionary definition of Winson, at 793 F.2d any court.” predi- a can be military conviction reasons, contrary to these 757. For 924(e)). also are There offense cate Circuits, we believe the Fourth Sixth foreign con- to include policy reasons valid such ambiguous. is that the statute reason no perceive can “[W]e victions: by the rule situation, guided we are else- crimes of serious why the commission interpret federal lenity, that “will make the likely to is world where pen as to increase statute so criminal he than dangerous less person so convicted when on an individual places alty that committed within were crimes whose on no can be based interpretation such an Winson, F.2d at 758.7 States.” Congress to what guess as than more that the stressed opinions Both Diaz, 989 States intended.” fair- obtained been had foreign convictions (citations Cir.1993) 391, 393 (“Atkins Atkins, at 872 F.2d ly. See omitted). hold We therefore violating foreign the misfortune suffered predicate as may pro- country which England, law sentencing enhancement for the offenses juris- or antecedent origin vides 924(e). in 18 U.S.C. in the United system employed dictional be vacat must sentence Concha’s Winson, America.”); F.2d at the district matter remanded any ed and us (“It out to pointed is not four of the resentencing. Three court for convictions the claimed how particular which upon convictions felony prior the result were and Switzerland Argentina in the Unit place relied took court district civil defendant’s of violation convictions, these Kingdom. Without ed princi- any cherished contrary to rights of evidence law.”). presented has government constitutional of American ple This is felony conviction.8 prior only one the Su- before decided cases were These this not we do find supra note plained ex- a term imprisonment for by punishable safeguard. strong a Winson, to be mechanism at 755 F.2d year.” ceeding one 1.n. felony, fourth argued that this also 8. Concha Involving Act Lascivious "Lewd a avail- for pre-arrest relief noted the Winson also 14,” felony a violent was not Under Treasury Child Secretary under able from the 924(e)(2)(B). we hold that Because § ex- under 925(c). As we at 758. § support insufficient to a sentence enhance- imprisoned not less than fifteen 924(e), § ment years.... under requires which three

previous convictions for violent felonies. 924(e)(1) § 18 U.S.C. added). (emphasis remand, however, On the district court Section 922(g)(1) in turn provides in rele- remains free to consider con- vant part that “[i]t shall be unlawful for victions purposes any person for the departure who has been in any convicted of, § punishable 4A1.3 of crime by the Sentencing imprison- Guide- ment for a term exceeding year one ... lines.

... possess ... any firearm or ammuni- tion-” 922(g)(1) (emphasis CONCLUSION added). reasons, For these Concha’s conviction case, this Defendant was convicted of is AFFIRMED. His sentence is VACAT- possessing a firearm in violation of ED, and we REMAND the case to the § 922(g)(1). Prior conviction, to this De- district court for resentencing. fendant had been convicted of violent felo- nies in the United Kingdom three sepa- on

BALDOCK, Circuit Judge, dissenting in rate occasions—twice for burglary and part. once for arson. Defendant also had been convicted in California for

In Part II of a “Lewd opinion, its pro- the Court Lascivious Act” involving a child under the vides several legitimate why reasons Con- age of fourteen. Because Defendant had gress could have restricted application at least prior three violent felony convic- Act, Armed Career Criminal specifical- court,” tions in “any “on occasions differ- ly 924(e)(1), 18 U.S.C. § to situations ent from another,” one court, the district where a defendant has three prior violent my оpinion correctly, sentenced Defen- felony convictions in “any state or federal dant to imprisonment “of not less than court,” instead “any court.” ‍​​‌​‌​​​‌‌‌‌‌​‌​‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌​​​‌​​​​​​‌​​‍Based on years” fifteen as required §by reasons, these the Court then declares an It’s that simple. unambiguous statute to be ambiguous, and Absolutely nothing in the and un invokes the rule of lenity in of Defen- favor ambiguous 924(e)(1) language §of indi All dant. this leads the Court’s foretold cates that Congress intended exclude conclusion that “foreign may from the statute’s coverage a dangerous as predicate offenses felon whose unlawful conduct occurred out sentencing enhancement in 18 U.S.C. side the See United States States. 924(e).” Op. Court at 17. I Because do Atkins, Cir.1989); 872 F.2d 94 agree with the Court’s unwarranted Winson, United States v. 793 F.2d 754 approach to statutory interpretation, I dis- Cir.1986). why Congress Reasons could sent as to Part opinion. II the Court’s have excluded such felon from 924(e)(1) Section provides in relevant 924(e)(l)’s (but not) coverage did do not part: justify altering the statute’s plain language judicial fiat. I Accordingly, would af In the person case aof who violates firm both Defendant’s conviction and sent § 922(g) of title and previ- three ence.1 ous by any court referred to §in 922(g)(1) of this title violent

felony offense, or a drug both, serious

committed on occasions different from another,

one person such shall be ... none of the qualify other convictions as vio- As to 1. the Court's discussion in Part I of its felonies, opinion lent need ques- regarding decide this the deliberate instruction, I, tion. continue to adhere the view expressed my dissent in States v. de ALBRECHT, Debtor. H. re Donald Young, Ziehl, Stang, &

Pachulski, Movant-Appellant.

P.C.,

No. 00-8022. Appeals, Court

United States Circuit.

Tenth

Dec. Pachulski, Stang,

Andrew W. Caine P.C., Angeles, Jones, Los Ziehl, & Young CA, Appellant. ANDERSON, and BALDOCK,

Before HENRY, Judges. Circuit pur- little might appropriate, instruction 1416 n. 5 Francisco-Lopez, 939 F.2d igno- by saying a deliberate J., pose is served Cir.1991) (Baldock, dissenting), that "rarely appropriate.” instruction is the facts rance anticipate Court cannot because this Op. at 6. Court every a deliberate case where

Case Details

Case Name: United States v. Concha

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 1, 2000

Citation: 233 F.3d 1249

Docket Number: 99-2171

Court Abbreviation: 10th Cir.