United States v. Curtis Lee Brewer, (86-6155), James Phillip Brewer, (86-6156), Giles Erwin Ferguson, (86-6157)
841 F.2d 667
6th Cir.
1988
Check Treatment

*1 America, UNITED STATES

Plaintiff-Appellee, (86-6155), BREWER, James

Curtis Lee Brewer, (86-6156),

Phillip Erwin Giles (86-6157), Defendants-Appel

Ferguson,

lants. to 86-6157.

Nos. 86-6155 Appeals, Court of

United States Circuit.

Sixth

Argued July 26, 1988.

Decided Feb. (ar- (Court-appointed) T. Hennis

John Tenn., Chattanooga, James Phil- gued), lip Brewer. (ar- (Court-appointed)

Timothy A. Deere Tenn., Erwin Chattanooga, for Giles gued), Ferguson. MERRITT, ENGEL,

Before KRUPANSKY, Judges. Circuit MERRITT, Judge. Circuit criminal federal sentence of the The first *2 668 is “not an element 1202,1limits mum firearm sentence law, App. 18 U.S.C. firearms § charged proved to be and years of the crime” to two maximum sentence the question liability guns. The criminal but is a possess order to establish who felons appeal is criminal sentencing direct fact to be shown us in this enhancement before of hearing sentence sentencing the second after conviction. § whether at a recidivists,2 the increases which Court, 4, upheld the Supreme sentencing only “enhance- enumerates operates because “it sole Pennsylvania law only at the that need be shown ment” facts sentencing court’s discretion limit the ly to alleged sentencing hearing and need not be range selecting penalty within the al the Fifth Amend- indictment under in the special to it without the ready available beyond a reasonable nor established ment possession of a firearm.” finding of visible the Amendment.4 under Sixth doubt suggested, majority at 2418. The 106 S.Ct. presented question is because This holding, the result would be without in charge-in the government did the possession finding if of visible different “a prove at the defend attempt dictment greater them exposed [the defendants] jury previous their convictions. ants’ trial The four punishment.” Id. or additional concerning finding requisite facts After the factor as a viewed the firearms dissenters hearing, sentencing the at the recidivism offense to be necessary element minimum sen imposed a District Court beyond charged proved a reasonable and parole. years We tence of fifteen without Winship, 397 U.S. doubt under In re Pennsylva that under McMillan v. hold (1970), 1068,25 L.Ed.2d 368 Mulla 90 S.Ct. 79, 106 nia, S.Ct. 91 L.Ed.2d 477 U.S. Wilbur, 421 U.S. ney v. (1986), principles con and traditional (1975), and Patterson v. L.Ed.2d crimes, the cerning and notice York, New an of sentence of creates second § though the mini even of which must be fense the elements the maxi mum sentence remained within proved in the charged in indictment and Therefore, it for the crime. mum allowed trial rather liability portion of the criminal appears that all nine members of the Court at the simply

than established and require notice in the indictment would hearing. of a fact proof beyond a reasonable doubt McMillan, adopted Pennsylvania had punishment beyond that increases the mandatory stat- minimum legislature a new for the maximum set years im- requiring not less than five majori ute elements of the offense. The other if the prisonment for number of offenses dissenting opinions in dis ty and “visibly possessed a firearm dur- defendant length the constitutional considera cuss at the offense.” All of ing the commission of concerning history notice and tions mandatory subject to the sen- the offenses proof of crimes that lead to this conclusion. murder, rape, tencing (e.g., and rob- statute repeat that here. We need not discussion already provid- crimes bery) were serious In the case at bar the crime substantially in ing sentences for maximum charged in the indictment and year mandatory mini- of the five excess government at the trial of Pennsylva- mum for use of a firearm. the lesser firearms three defendants was legislature expressly provided that the nia years. carrying a maximum of two triggers mini- offense factor which firearms person repealed days states "no shall 3. The Fifth Amendment was effective 180 1. This section U.S.C.A.App. May crime 1986. See 18 to answer” for an "infamous after be held (1987 Supp.). reappears Jury-” It in modified form of a Grand unless on ... indictment 924(e) (1987 922(g), Supp.). U.S.C.A.§§ states all criminal “[i]n 4. The Sixth Amendment provides person who ... 2. This sentence that “a right enjoy prosecutions the accused shall possesses any in commerce firearm ... ... "by impartial jury." to” trial an previous rob- three ... for ... has bery imprisoned not ... shall be ... years” parole. eligibility less than 15 without charged if “exposes” offense also be it the conviction After defendants greater punishment” court “enhanced” “to or additional jury, the request to a minimum of government’s charged in fact the conduct in the indict parole years fifteen without under sec- ment, (majority opinion). 106 S.Ct. at 2418 it found ond sentence because opinion Judge Rubin’s in United States v. guilty previ- three defendant also each Davis, (5th Cir.1986), *3 robbery burglary. ous convictions Hawkins, Gregg, conflicts with Jackson may the rea- This the Court not do under point, and on this is West consistent with soning prison sen- of McMillan because reasoning. agree the McMillan We with prison imposed tence exceeds the maximum Judge Davis and Rosenn’s dissent in Haw charged permitted for the crime sentence Eighth note that the kins. We Circuit is may A in the indictment. court consti- considering this issue en banc. See Unit tutionally punishment the level of increase 836, (8th Cloyd, ed States v. permitted crime beyond the level for the Cir.1987). proved in the charged in the indictment and dissenting opinion brother, The of our Therefore, liability phase we of the case. Judge Krupansky, mistakenly states that imposed by the Dis- reverse the legislative intent is clear that federal trict and remand the case for resen- Court require by courts should not notice indict- tencing within the maximum for the crime proof ment and at trial of the additional charged in the indictment. elements of the crime under consideration holding Our conflicts with United States Although right here. he is that some mem- — Cir.1986), Gregg, 803 F.2d v. Congress bers of referred to the bill —, cert. 107 S.Ct. U.S. providing only for an “enhanced” or “stif- (1987), L.Ed.2d 693 States v. Haw criminals,” fer sentence for career Cir.1987) kins, (3d cert. de drafters of the bill as introduced and con- — nied, —, U.S. 108 S.Ct. 98 sidered in committee said: “The creates bill (1987); L.Ed.2d 69 United States v. Jack carrying crime of a firearm new Federal (D.C.Cir.1987), son, 824 F.2d 21 cert. de prior felony a defendant has ... where two —, nied, robbery burglary.” (1988); and United States S.Rep. No. 1st at 3 Sess. West, (9th Cir.1987), which, F.2d (1983). It is not clear what except fleeting for a reference in question us, thought about the before and 811 F.2d at do not mention McMillan legislative our search for evidence of intent or indicate an awareness of its existence as nothing subject has disclosed we on this precedent. Judge Rosenn, cogent in a helpful. Neither do we would consider Hawkins, points dissent out that argument concerning think our brother’s controlling analysis in and re prejudicial effect on the by proof quires notice indictment and convincing light prior felonies is 1202(a) dramatically trial “raises because § if neces- availability of a bifurcated trial any explicit minimum and lacks prejudice, Spencer Tex- sary to avoid see language denominating ait as, 566-68, 654- than an element of the of factor rather light of and (Rosenn, J., fense.” 811 F.2d at dis many require the fact that statutes now senting). holdings in four these cases ele- notice crimes as provides that the second sentence of 1202 see, (RICO) offense, e.g., ments of merely “sentencing enhancement” 1961(5), 1962(c) and 18 U.S.C. U.S.C. §§ after the court conviction are inconsistent (second mailing pornog- offense Supreme reasoning with the Court’s in the raphy). under McMillan case. It seems clear contest The defendants also McMillan that an offense identifies “which car, in which legislature search of the trunk of their specifically conduct the intend sanction,” burglary found. punish by firearms and tools were special ed to defendants, (Stevens, J., individ- dissenting), S.Ct. at 2426 must The three and a fourth showing, they activity were facie of criminal ual who later confessed that (citation travelling Georgia burglary, probable to commit a standard cause.” omitted) rented car in and were had Nashville Chattanooga. The travelling through intui- wires, gloves, police scanner and specializing tion of a detective manual, together taken with the other sus- offenses, Del Thomasson of the Chattanoo- picious circumstances noted Detective suspect him to ga Department, Police led Thomasson, push the case across the line might engaged be in criminal that the four probable cause. We therefore decline to way they looked conduct because of suppress the items of evidence offered at that their rental car seemed and the fact the trial as a result of the search. weighted in the trunk. He and a down light above, disposition of our we need partner four stopped the car and observed not reach the issue Leon raised pairs gloves type of a sometimes used in probable Government: since there is cause burglaries, police radio fre- a book with *4 warrant, support to the issuance of the we quencies, police radio scanner. Later and falling any good-faith can avoid back on wires, jumper alligator clip a set of some- reliance on the warrant the officers. alarms, bypass burglar times used to were Leon, See United States v. 468 U.S. observed. Because of these items and the (1984). 82 L.Ed.2d 677 For general appearance of defendants and the reason, the same we need not reach the car, the officers decided to seek a argument raised the Government that trunk after the de- search warrant for the defendants, passengers certain as in the open judge it. A fendants refused to state car, standing challenge lack to the search. facts, issued the warrant based on these We have reviewed the other issues raised and the firearms and numerous by the defendants and find them to be tools were found in the trunk. without merit. question proba- there was whether Accordingly, judgment of the District cause, believe, grounds

ble to reasonable Court is reversed and the case remanded engaged that the defendants were in crimi- proceedings for further consistent with this Although probable nal conduct. cause opinion. is thin for the issuance of a search war- rant, jumper tip equation wires in KRUPANSKY, magistrate’s Judge,

favor of the state Circuit decision. concurring part, dissenting part. Detective Thomasson did not have to estab- suspicion by lish his preponderance I concur majority’s with the resolution of evidence. He had to establish that he had presented all issues appeal with the grounds reasonable to believe the defend- exception interpretation of its of 18 U.S.C. engaged ants were in criminal conduct. App. the Armed Career Criminals Supreme (ACCA). Court has underlined this Act appellate This review of the distinction, probable which is central to the presents impression ACCA an issue of first cause determination. theAs Court stated circuit, in this challenges and this court to Gates, 213, 235, in Illinois v. government determine if the specifically 2317, 2330, (1983): S.Ct. 76 L.Ed.2d 527 charge to in the indictment and

Finely proof prove tuned standards such prior be- trial a defendant’s convic- yond by prepon- pursuant a reasonable doubt or tions to the mandate of the evidence, derance of the section, useful formal ACCA. Under that a felon who trials, place magistrate’s have no in the possess may firearms be sentenced to a decision. While an effort to fix years some maximum of two unless he has been general, numerically precise degree of committing prior convicted for three felo- certainty corresponding “probable nies. subject Three-time recidivists are may helpful, cause” imprisonment not be it is clear that period for a of not less than “only probability, prima and years fifteen eligibility parole.1 without pertinent 1. The section of the ACCA reads as follows: Supreme deci- my opinion that the Court case, convictions prior instant In the Pennsylvania, 477 spe- sion in McMillan v. were defendants

of the vulnerable during trial. U.S. charged cifically the resolution of the issue is alien to However, prior to the July on case, respect- I the instant must charges joined in of their trial on commencement disposi- majority’s from the formally fully dissent indictment, they each were tion. government would seek noticed that sentencing pursuant to 18 U.S.C.

enhanced Initially, prompted I to arrive at this am (ACCA). The, notice App. Congression- by a review of the conclusion by more September 9 trial preceded the upon history which reflects the intent al the previous in detail a month listed promulgation that embraced charge upon which the ACCA ACCA. were convict- Defendants anchored.2 was charging support decision ambi- To its jury trial. At their subsequent to a ed guity Congressional intent the enact- hearings neither presentencing respective majority of the ACCA the cites ment Ferguson nor defendant the defendant Cong., 1st at 3 S.Rep. No. Sess. government’s disputed the Brewer correctly quotes the statement three respective conceded their legislation attributed to “drafters” an en- which mandated felony convictions hearings during an- the 1983 Committee hanced sentence.3 nouncing “The bill creates a new Fed- Thus, sen- to the enhanced any demurrer carrying a firearm ... where eral crime of *5 not be in instant case could the tences prior felony convic- has two a defendant vague or no- upon insufficient predicated burglary”. major- The robbery for or tions Appel- concerns. process due tice-related characterizing the dubious Con- ity analysis proper notice and were had received lants enactment of gressional motivation behind use of government’s the prejudiced arose as a result of the the ACCA that sentencing procedure.4 the enhanced hearings during 1st the 1983 Committee it con- of the 98th when firmly I con- Session Accordingly, am because is not adoption the of the ACCA of Con- sidered it not the intention vinced that was Indeed, those hear- entirely unwarranted. to create gress promulgating in the ACCA to ings considerable consideration mandating govern- accorded the separate offense bifurcating the trial of an necessity for in indictment the specifically plead its ment to charged offenses accused on substantive in the prove the trial chief at on of his recidivist triggers from the trial that the of the accused recidivism highly acknowledged statute, the career to avoid and because enhanced attempted argue the to that one of Brewer person possesses ... in commerce who ... "a "breach of trust" in the Notice was for any previous crimes (which has three firearm and ... ... offense) rather than not an ACCA was robbery ... ... convictions However, apparent from burglary. it was years imprisoned less than IS be shall ... during presented the evidence the parole.” eligibility for without hearing convicted of both that Brewer was repealed as of 180 that this section was Note burglary, the breach of trust of trust and breach 19, 1986, applies days May to the but after having in 1976 and the bur- conviction glary occurred question. prosecution in having in occurred 1972. conviction the issue of whether court need not reach 2. This constitutionally required. procedures 4.See United States were such —, (3d Cir.), U.S. (1987): S.Ct. during supplemental the sen- his brief and 3. In challenged prior given by tencing hearing, adequate Brewer three notice was [t]here ... juve- government seek enhanced occurred when he was its intention to convictions that of attempted alleged penalties against under the Armed one was for Hawkins nile and provision. was one Such notice burglary, listed as Criminal which was not a crime Career trial, stated the enhance- filed two months government’s ACCAwould consider in sentence before request Nonetheless, increased intention to three of his six convictions ment. provision in punishment and listed under the unchallenged was sufficient remained and that relied therein. Additionally, provisions. detail the to invoke the ACCA if the local authori- approach, this proof of re- Under inherent prejudicial effects posses- chief, three-time loser arrest a which ties during trial cidivism can convince the gun ... and attached sion of purportedly effects prejudicial war- Armed Ca- Attorney that circumstances legislation. proposed the 1983 enhanced Hearing on S. under prosecution Act rant reer Criminal of1983: bill, Judiciary this man- provision on the penalty the Committee Before available, (em- Senate, 15-year penalty 98th States datory (statements (1983) added). of Sena- phasis 1st Sess. at Knapp, Deputy As- Spector and James tor during voiced sentiments were Similar General); S.Rep. Attorney No. sistant by Representative floor debates Cong., 1st Sess. 98th principal sponsor of the substi- Hughes, the originally introduced legislation legislation who stated: tute 1984 Congress in 1983 was both branches us is 6248 which we have before H.R. rest also laid to and its demise abandoned and, believe, another, approach I useful plagued ambiguity which charges would en- bill This problem. proposed purpose of the underlying sanctions U.S.C.App. hance the enactment. 1202(a) 15-year minimum with a Section con- if the defendant has been describing In its decision abandon robbery times of felonies for victed three provisions of the recidivist 1983 version of added), (emphasis burglary, ACCA, Report which accom- the House Cong. panied bill H.R. Representative Sawyer substitute who stated: terms, announced, in certain 2d Sess. today is crafted proposal before us for the substitute underlying motivation its prosecution Federal of State to avoid legislation: pro- This robbery charges. burglary or 1202(a)] “enhancing” expand this offense posal does not even Federal [§ sanctions, if 1627-type the de- H.R. 6248 takes an exist- H.R. criminal law.

with three times convicted possession statute and enhanc- fendant has been ing gun are “enhanc- burglary, robbery or we any es violation crime, ing” an existing Federal person having previously convicted been *6 many problems of the alleviate burglary would and rob- three times for armed H.R. 1627 such as associated with bery. or the difficul- of a local D.A. veto issue the enhanced apply H.R. 6248 would in by Federal courts

ties encountered penalties of a fine of not more than burglary robbery and applying State $25,000 imprisonment or of not less (emphasis prosecutions, in Federal laws both, pen- years, or in addition to the 15 added). underlying offense. These alties for the anyone pos- penalties applied would be Cong.2d Sess. H.R.Rep. No. 98th sessing a in violation of section Cong. Ad- firearm reprinted in & U.S.Code 1202(a) to title VII of the Omnibus Crime p. min.News 3182 at 3665. (18 Act of 1968 Control and Safe Streets Congres- lingering to the Any doubts as 1202(a)). U.S.C.App. person This must concerning the 1984 substi- sional intention previous three convictions for bur- have dispelled by Congres- legislation were tute added). glary robbery, (emphasis or expressions political from the leader- sional Cong.Rec.H. (Daily Edition Octo- ship in the House and Senate. 130 10550 both 1, 1984). ber bill—H.R. Substitute expressions concise voiced The clear and adopted by the House 2d Sess. 1984—was by in the House were echoed the Senate Judiciary legisla- Committee and it was this leadership debating in the 1984 substitute tion that formed the basis for the ACCA ultimately adopted. legislation which was finally again, the enacted into law. Here debate, During Specter, the Senate Senator approach by taken 6248 was clear H.R. sponsor principal of substitute Senate ex- proceedings from the record of which that: Bill stated no uncertain terms plained: Cir.1986), (10th Gregg, Federal States v. would create no new This bill — denied, 1202(a), U.S. —, rt. present section crime. Under ce by (1987), convicted possession of a firearm a the Third Cir crime, already cuit, a Federal with a v. felon is United States F.2d prison years. (3d maximum sentence of Cir.), U.S. —, simply provide a This title would L.Ed.2d sentence career criminals. Jackson, Circuit, States United D.C. stiffer added). (emphasis (D.C.Cir.1987), Circuit, F.2d Fourth Blannon, United States v. 836 F.2d 843 (Daily Cong.Rec.S. 13080 Edition Octo- Cir.1988) Circuit, 4, 1984). and the Ninth ber West, (9th Cir.1987), States purpose This was reaffirmed Senator merely in their conclusion that the ACCA Thurmond, Judiciary of the then Chairman a enhancement statute.5 Committee, joined by who was Senators Kennedy tendering Biden and an amend- Apart from the clarion declarations Bill stated: ment to Senate who Congressional intent disclosed the 1984 applicable Special provisions to this of- Congressional preceding debates the enact- permit danger to the com- fense would ACCA, accepted ment of the standards of making munity to be considered bail statutory support construction lend to the prior decisions, make the 1202(a) conclusion that does not create a solely judge matter before separate offense indictable but constitutes allegation requiring trial without provision enhancement trial; or the indictment independently pleaded need not be or require imposed to be at trial. As noted the Third served in full. Circuit in Hawkins: 1202(s), second sentence of section

[t]he penalties would be Thus, enhanced which constitutes the whole of the Arm- person if Fed- provision, evidently available with two ed Career Criminal robbery sentence, eral or convic- preceding State a continuation of the charged with a Federal of- tions were and refers thereto. example, robbery a federal-

fense —for 1202(a), The first sentence of section office, ly post (empha- insured bank or accompa- is set forth in full in the added). sis margin nying language so that its Edition, Cong. (Daily examined, Record S. 1563 structure can be lists the five 23, 1984). Feb. persons classes of for whom it is a crime receive, transport possess firearms: light emphatic reflections (1) (2) felons; dischargees; dishonorable promulgate recidi- entire (4) *7 incompetents; renounced mental legislation vist that would create new citizens; (5) illegal aliens. The sec- separately charged and Federal crime to be preced- specifies ond sentence one of the trial, proved rather to enact a stat- at but persons ing classes of for different treat- delegate sentencing that would authori- ute own, ment. It does not stand on its but ty judge to enhance the sentence to a trial expansion preceding provi- an offender, as of the I am to of a recidivist constrained Also, the inclusion of the Armed legislating by judicial sion. refrain from decree para- Career Criminal Act into the same recasting purpose the intended of the graph previously enacted section join as the ACCA and would the well-reasoned 1202(a)(1), separate into Circuit United dispositions of the Tenth with no division 27, (5th 1987), Aug. Apart that Circuit has Fifth 895 Cir. from the dissent in Davis, specifically decision in United v. 801 Circuit F.2d 754 States that a Louisiana sentenc- concluded (5th 1986), conveniently ig Cir. ing ACCA enhancement statute similar to the Congressional nored the intent behind recidivism that was constitutional and that the ACCA, single supports the is the decision that triggered under the statute was enhancement majority expressed vitality of view herein. The required pleaded at trial. to be or Butler, Buckley 825 F.2d Davis is in doubt. In v. 674 States, 446 U.S. 398, 1747, 100 S.Ct. 64 ed suggests treatment

numbers or letters (1980) (describing provisions single offense. contents as a L.Ed.2d dangerous deadly weapon un- using Hawkins, 811 F.2d at 218-19 (footnote 111, relating assaulting der U.S.C. § omitted). 924(c), officer, relating to and 18 U.S.C. § face, 1202(a) Moreover, tracks on its committing felony, firearm as use of other federal language of numerous provisions for double enhanced regarded which have been criminal statutes jeopardy purposes). separate of enhancers rather as Indeed, has one court described fenses. interpreta- I am also concerned that the “language containing that ACCA urged by appellant tion of the ACCA would pro enhancement typical of” a “require place government evidence Jackson, (comparing F.2d at vision. prior felony of a defendant’s three convic- 848(a)(1), a recidi to 21 U.S.C. the ACCA any proceeding tions before the in statute). have decisions vist Countless inherently preju- under the ACCA. The virtually identical terpreted language dicial nature of this kind of evidence is concluded that in the ACCA and have that Jackson, well-known.” 824 F.2d at 25. congressional in language indicated a such evidence, “[Ajbsent any convincing in ei- sentencing. See United tent to enhance text, structure, legislative ther the histo- Patterson, v. 820 F.2d States ACCA, Congress ry of the that intended to 7, 1987) (18 (9th July U.S.C. Cir. general policy,” from deviate this court commit sentencing for those who § 8147— require highly prejudicial should not released on bail —is offense while Unit enhancement, offense); separate convictions be Cir.1986), Soto, (9th v. ed States 779 F.2d Id. trial. It is true that a bifurcated trial — U.S. —, denied, 108 S.Ct. rt. prejudicial would eliminate the effect of ce 110, (1987) (dangerous spe 98 L.Ed.2d 70 introducing prior convictions before the merely enhance cial offender statute is jury. However, exception, without bifurca- Haley, v. ment); 758 F.2d United States specific legislative tion is a result of intent denied, (9th Cir.), 474 U.S. cert. by incorporation appropriate reflected (1985) 158, 88 L.Ed.2d 131 provisions legislative into the enactment. statute). See (special dangerous offender apparent legislative It is from the history also, Scarborough, 777 F.2d 175 v. States of the ACCA that abandoned its (same); States v. (4th Cir.1985) United impose heavy initial intent to such a burden Towers, (inter (7th Cir.1985) 775 F.2d 184 upon prosecuting authorities and the 849(b), special danger preting 21 U.S.C. § courts. sentencing); drug ous offender Adams, (3d Cir.), States herein, previously As discussed bifurcat- 1013, 106 S.Ct. during ed trials were considered the 1983 (18 3575); (1985) U.S.C. § concept version ACCA but the White, United States v. proposal that earlier was abandoned and Sedima, Cir.1984) (same); S.P.R.L. Cf. replaced by the substituted version Co., Imrex ultimately adopted. S.Rep. act which was (describ 3281-82 n. (1983); No. 1st Sess. at 3575(e) ing as enhanced sen 18 U.S.C. § *8 Armed Career Criminal Act 1983: v. United tencing provision); Garrett 52, Hearing supra, on S. at 20 H.R. States, 2407, 2413, 773, 471 U.S. 105 S.Ct. 1627, (1983). 1st 2 Sess. § (1985) (construing 21 87 L.Ed.2d 698 U.S.C. Congressional refusing provide action to enterprise’s re continuing criminal § trials in the bifurcated enacted version provision creating separate cidivist as not a again upon Congress’ of the ACCA reflects only prior con offense since it referenced pro victions and did not refer to conduct intention not to create a new offense but v. Unit- by statute); Busic scribed another merely provide rather to for a sentence enhancing provision applicable tencing provision,7 enhancement con which recidivist ordinarily clusion would a decision offenders.6 dictate government. Rarely favor will Lastly, repeal and re-enactment of def political branch’s the courts disturb provision in enhancement ACCA’s of a crime. inition of the elements “[I]n Firearm Owners’ Protection Act of 1986 proved must be be determining what facts confirms that the statute was intended as doubt, legisla the state yond a reasonable statute, separate enhancing not a sub- an of the elements of the definition ture’s offense. The Firearms Owners’ stantive usually dispositive.” is offense Act of 1986 transferred Protection also Martin v. See 2416. 106 S.Ct. provision (previously ACCA enhancement 1098, Ohio, —, 107 S.Ct. 1202(a)) to 18 found in 18 U.S.C. U.S.C. § (1987).8 Accord States United 99-495, 924(e). H.Rep. No. 1986 U.S. Holland, (D.C.Cir.), v. 810 F.2d 1327-1859, Cong, Admin.News Code and — U.S. —, change as a re-enactment described (“Punishment estab 95 L.Ed.2d 854 Id. at 1349 and 1352. The ACCA. democratically legisla elected lished a placed provision in the Congress the new heavy presumed ture is valid and a burden clearly “Penalties” section of denominated judg rests on those who would attack Jackson As the court 18 U.S.C. 924. people.”) representatives ment noted, clearly, has now “Thus have, fact, that the courts declared Some intent to fur- prospectively, stated its albeit statutory analysis should rationale of this provi- sentencing provision and not a nish always conclude inquiry. “Once the defining separate of- sion indictable provision con Armed Criminal Career 23, n. fense.” 823 F.2d at 2. sentencing provision, no due sidered to abe presented.” process issue is Accordingly, persuaded I am 220. F.2d at Congress intended the ACCA to be a sen- majority interpretation judge dure §of 1202 would in which trial

6.The enhances defendant’s danger place special Butler, similar federal and state punishment); (up 825 F.2d at 902-03 statutes and recidivist enactments ous offender holding multiple Louisiana offender statute as sentence enhancers at risk. The intended require grand jury which does not indictment do not consider enhance separate bulk of these statutes on sentence enhancement facts and which does provisions as offenses which ment require beyond that facts be established pleaded proved be at trial. must Cf. doubt); Bennett, Wessling reasonable v. Stewart, (6th States v. Cir. 1969) (defendant F.2d Cir. had no 1976) (federal dangerous special offender stat right federal constitutional to be informed process provides protection far more due ute to his conviction of the habitual criminal analogous than is under offenders charges grounds that are for sentence enhance statutes). See States state recidivist also United statute). ment under Iowa (6th Cir.1977) (spe Ilacqua, F.2d dangerous cial offender statute of the nature 7. See Field v. County, Wake North Sheriff of statute, and, such, Caroline, the feature of a recidivist (4th Cir.1987) (sentenc- does constitute a of an enhanced sentence ing factors need be judge only); considered separate charge requiring criminal indictment Butler, Buckley (it 825 F.2d at is clear 902-03 Indeed, grand jury). survey dis recent that at the accused does not have the only jurisdictions adopted closed that nine have panopoly full process protections of due jury two-stage bifurcated trials in which the attend guilt innocence; the determination of guilt punishment. and enhanced both considers See there is no right grand Fifth jury Amendment Schor, State v. Green — Recidivist Statutes: facts). indictment on See also Prior The Procedure the Introduction McMillan, (there 106 S.Ct. at 2420 is no Sixth Evidence, Crime 61 TUL.L.REV. Footnote right Amendment sentencing, even (1987). Sentence in as enhancement statutes where the specific findings turns on many as 41 states could be vulnerable to the fact). majority’s holding. said, en- Such a wholesale invalidation of state The court 107 S.Ct. at 1099: place York, hancement laws would this circuit at odds We there [in Patterson v. New Fourth, Eighth with the Fifth and Circuits which (1977)] state emphasized have concluded that sentence-enhance- pre-eminent role of the provisions ment need not be at trial. preventing dealing states in with crime County, See Field v. olina, Wake North Car- *9 and the reluctance of the Court to disturb a Sheriff of (4th Cir.1987) (hold- 534-36 respect state’s decision with to the definition ing proce- as constitutional a North Carolina criminal conduct... majority’s interpretation of some limited founded recognize I the existence upon misconception passage suggested in that Con precedent which has McMillan which in its license to uncannibalized form gress does not have absolute crime. are reads as follows: the of a “There define elements limits be course, constitutional certain possession Petitioner’s claim that visible go on may not legislature yond which Pennsylvania under the statute is “real- Hoover of a crime.” defining the elements for which offenses element ly” an Court, F.2d Heights Mun. v. Garfield Pennsyl- being punished they are —that Cir.1986), 168, 173, note 6 set of a new defined has in effect vania L.Ed.2d —, least have at felonies—would upgraded circum (1987). “In certain limited finding of if a appeal superficial more doubt re stances, Winship’s reasonable great- exposed them possession visible formally applies to facts quirement but it punishment ... or additional er the offense identified as elements mini- only] not ... does rais[es] [it McMillan, 2417. 106 S.Ct. at charged.” by may imposed that be mum notwithstanding, suggestions limited Those court, added). (emphasis trial not rise to the herein do presented facts 2418. S.Ct. at Id. 106 alluded to of “limited circumstances” level in cited cases. did passing remarks which The Court’s dicta, indicate rise even to the level of distinguish attempts majority argument no more appellants’ had that by urging that body of case law formidable validity. superficial Third, Ninth, D.C., and Tenth Circuit opinions to consider the ef- have all failed surprise that the of little It should be Supreme fect of the Court decision has considered the only other court that circuits, as McMillan. It is true that these majori- expressly rejected the question has Davis, well as the Fifth Circuit have Field, the Fourth Circuit ty’s position. ignored analogy of rejected either sentence-en- that maximum has decided interpretation of the McMillan to an man- treated in the same hancers should be Judge adopted dissent as ACCA. Rosenn’s minimum sentence-enhancers. See ner as herein, majority stands alone as Field, 831 F.2d at 536: voicing the “maximum-minimum” sentenc- recognize We that the statute considered Judge ing distinction that Rosenn evolved in McMillan did not increase the maxi- from McMillan. mum available as N.C.G.S. sect. 20-179 does. But that fact alone did not support majority To ex- its rationale the form the basis for the Court’s decision. trapolates passage from cannibalized equally Other important factors con- appellant’s argu- addressing the McMillan sidered the Court findings included its ment, Court, ultimately rejected by the that Pennsylvania that the statute did not cre- Pennsylvania controversy statute de- any impermissible ate presumptions nor upgraded fined a new set of felonies which did it prosecution relieve the of its bur- proved beyond were a rea- be proving guilt. den of extrapolated From the lan- sonable doubt. case, “presumptions” In the instant no guage majority hypothecates created, prosecution have been nor has the requires in the indict- “notice proving relieved of its been burden proof beyond ment and a reasonable doubt guilt.9 specifi- The Third Circuit has also punishment of a fact that increases the cally procedures concluded that the ACCA beyond legisla- set maximum used the instant case satisfied the due ture for the other elements of the offense.” Indeed, during rights it is uncontroverted that defendants trial. panopoly received the full of constitutional *10 gressional enhance intent to the sentences process standards set forth in McMillan. Moreover, repeat offenders. 811 F.2d at 220. See progeny suggest sentencing and its that Accordingly, adopt reasoning I would enhancers such as the ACCA are constitu- logic of the Third Circuit and its that the legislation if such increases the tional even sentencing procedure clearly at bar is con- given for a maximum sentence available stitutional even under the rule of McMil- I Accordingly, crime. would AFFIRM the important It lan. to note that entirety. decision of the district court in its specifically McMillan court concluded that sentencing traditional factors need not be pleaded McMillan, at trial. case,

S.Ct. at In the 2419. instant inas

McMillan, legislature “simply took one always factor that has been considered FORD, Louis M. Parker sentencing punishment” courts to bear on Petitioner-Appellant,

—the number of offenses—“and dic- precise weight tated the given to be factor.” congressional Id. at 2419. The SEABOLD, Warden, Bill Luther codification of sentencing traditional Complex, Luckett Correctional factors does not transform “a sentencing Respondent-Appellee. factor into an ‘element’ of hypotheti- some ” cal ‘offense.’ Id. No. 86-6275. Finally, important it is to note that the Appeals, United States Court of primary requiring rationale for Sixth Circuit. factors to be submitted to a ne- —the cessity for accurate finding fact —does Argued Oct. 1987. apply in the instant case. Prior convictions Decided March highly are verifiable matters of record Rehearing En Banc Rehearing and subject which need jury inquiry. not be 16, 1988. May Denied Because defendants have received the to- tality of protections constitutional due in prior offenses, trials of the no addition- factfinding

al necessary. Buckley See

Butler, 825, F.2d at 903:

They ap- statutes [enhanced

plying repeat have no rela- offenders]

tion to the wrongdo- circumstances of the

ing constituting offense, the most recent

but rather something wholly which is Further,

unrelated thereto. they do not determining

relate to what the accused done,

has but rather to what the state

has -previously determined that he has

done. previous And that determination

must formal, have been judicial deter- guilt;

mination of and hence one as to

which the full measure of constitutional

protections was available. short, government’s interpretation

of the ACCA has neither run afoul of the

statutory or safeguards. constitutional In-

deed, the expressed ACCA has a clear con-