UNITED STATES of America, Appellee, v. Wilbert Jerome DREW, Appellant.
No. 98-3120.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 15, 1999. Decided Jan. 25, 2000.
200 F.3d 871
This statute, like the parallel firearms act stricken as unconstitutional in Lopez, regulates, under purported authority drawn from Congress‘s power to regulate interstate commerce, activity (or inactivity) that is neither commerce nor interstate. The Supreme Court held the Gun-Free School Zones Act unconstitutional in Lopez. Our panel decision upholding this statute as constitutional cannot be reconciled with Lopez, and we should review it en banc.
Florence Pan, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney, and John R. Fisher, Assistant United States Attorney, were on brief for the appellee.
Before: EDWARDS, Chief Judge, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.
Opinion filed by Chief Judge HARRY T. EDWARDS concurring in the judgment.
KAREN LECRAFT HENDERSON, Circuit Judge:
Wilbert J. Drew pleaded guilty to one count of possession of a firearm while subject to a court order in violation of
I.
On December 2, 1997 a grand jury returned a single-count indictment charging Drew with violation of
and was scheduled to begin on November 19, 1997.
On November 2, 1997 Drew telephoned Mrs. Drew at about 2:30 a.m. Distraught, Drew said that he needed help right away and could not wait until the November 19th family counseling session. Drew told her that the system had failed him, everyone was turning their back on him and he was contemplating suicide. See id. Mrs. Drew suggested he contact their family doctor. See id. When she told him that she intended to hang up, he threatened to do something “drastic.” Id. A few minutes later, Drew broke into their house by shattering a window. Mrs. Drew heard the sounds of breaking glass and someone running up the stairs. She locked her bedroom door, grabbed her portable phone and hid in a closet. She dialed 911 and requested help. While she was on the telephone with the emergency dispatcher, Drew broke through the bedroom door and then through the closet door. He pointed a shotgun in her face and said, “Bitch, get up. Get out of this closet.” R. Drew Tr. 9. She pleaded with Drew, saying “Please, please don‘t shoot me. Don‘t kill me. Don‘t shoot me with the shotgun.” Id. When she attempted to stall by saying that she had to put on her shoes, Drew declared, “You don‘t need shoes where you are going.” A 117. At gunpoint, Drew forced his wife to walk out of the bedroom and into the upstairs hallway. There they met their 19-year-old son, Tamarkus, and their 15-year-old son, Jerral. Still pointing the gun at his wife, Drew said, “Bitch, walk.” R. Drew Tr. 10. Drew went down the stairs in front of Mrs. Drew, continuing to point the shotgun at her, and told her again to come downstairs. See A 39. Eventually she walked down the stairs, stopping a few steps from the bottom. Their two sons also walked downstairs, trying to talk to Drew. Drew again complained that he was tired, the system had failed him and he couldn‘t take it anymore. He seemed “unfocused” and his “eyes were glazed over.” Mrs. Drew cried out again, “Please don‘t shoot me.” A 118. At one point, Drew pointed the gun in his wife‘s face. See R. Drew Tr. 11. He also pulled the trigger of the gun. See Szala Tr. 7, 8. Mrs. Drew heard a “tick” or a “pop” but the gun did not discharge. See R. Drew Tr. 11.2 When the gun did not discharge, Mrs. Drew and her sons jumped on Drew and attempted to take the gun away from him. MPD Officer Paul Szala arrived as they were struggling with Drew and with his assistance they subdued Drew and Szala placed Drew under arrest.
The government and defense counsel entered into plea negotiations. The government initially offered to allow Drew to plead guilty to two charges—Count One (possession of a firearm while subject to a court order in violation of
I believe that I was able to review for him the calculations that we believe would be appropriate in this case. I believe that I was able to discuss with him the calculations that we have tried to foresee that the government may argue, including various reasons for upward departures and various reasons for downward departures.
Tr. 6/2/98 at 28. Before accepting Drew‘s guilty plea, the district court referred to the proffer of facts and informed Drew that, by pleading guilty, he waived the right to appeal his conviction but retained the right to appeal an illegal sentence. Drew agreed with the factual proffer and stated that he understood he was waiving his right to appeal his conviction. See Tr. 6/2/98 at 42. The court then accepted Drew‘s guilty plea.
On September 28, 1998 the district court sentenced Drew to 80 months in prison followed by three years of supervised release. In sentencing Drew pursuant to the Guidelines’ cross-reference provisions for firearm offenses,
II.
The standard of review applicable to Drew‘s constitutional challenge to his conviction is discussed infra. We review the district court‘s application of the Guidelines as follows: “[P]urely legal questions are reviewed de novo; factual findings are to be affirmed unless ‘clearly erroneous‘; and [the Court] give[s] ‘due deference’ to the district court‘s application of the guidelines to facts.” United States v. Becraft, 117 F.3d 1450, 1451 (D.C.Cir.1997) (quotation omitted).
A. Waiver
Drew argues that his conviction should be vacated because the statute under which he pleaded guilty,
Drew argues that no evidence established that he pulled the shotgun trigger while pointing the gun at his wife. Because the district court‘s determination that Drew attempted to commit first degree murder is a factual finding, we review it for “clear error” and accord it “due deference.” See id. Mrs. Drew‘s grand jury testimony supports the finding that Drew attempted to murder her:
[Prosecutor]: But what I do need to ask you, you told me that at one point your husband had the gun pointed at you, and you heard the trigger?
[Mrs. Drew]: Yeah.
R. Drew Tr. 11. Furthermore, Officer Szala testified before the grand jury that Mrs. Drew told him that Drew had pointed the gun at her face and pulled the trigger. See Szala Tr. 7-8. At sentencing Drew did not contest that the gun was pointed at Mrs. Drew when he pulled the trigger. Also at sentencing the government introduced in evidence the shotgun recovered from the Drew residence the night of the offense as well as the indented shell. Based on this evidence, the sentencing court did not err, at least not clearly so, in finding that Drew “took sufficiently premeditated actions to constitute attempted first degree murder.” Drew, 23 F.Supp.2d at 44.3
C. Cross-Reference Provisions
Under the Guidelines, the sentence for a violation of
(a) Base Offense Level (Apply the Greatest):
....
(6) 14, if the defendant ... is a prohibited person;
(b) Specific Offense Characteristics
....
(4) If any firearm was stolen, or had an altered or obliterated serial number, increase by 2 levels.4
(5) If the defendant used or possessed any firearm or ammunition in connection with another felony offense ..., increase by 4 levels.
(c) Cross Reference
(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense ..., apply—
(A)
§ 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above.
(a) Base Offense Level: The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.5
....
(c) Cross Reference
(1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.
Under
Drew argues that the district court erred in applying the cross-reference provisions of
1. Application of sections 2K2.1 and 2X1.1
The district court‘s interpretation of
2. Due process
Drew next argues that his sentence violates his right to due process because the district court “[i]n effect convicted appellant of attempted murder, and then sentenced him to the far greater offense,” see Petitioner‘s Br. 26, and relied upon hearsay evidence in doing so. Drew concedes that he never raised his due process claim below but argues that his general challenge to the applicability of the cross-reference provisions preserved the issue. See id. at 25. Nevertheless, because the district court lacked the opportunity to rule on the issue, we review Drew‘s challenge for plain error only. See United States v. Broxton, 926 F.2d 1180, 1183 (D.C.Cir.1991). In the sentencing context, we have held that error is “plain” where it “is obvious under settled law and would result in grave prejudice or a miscarriage of justice if not corrected on appeal.” United States v. Watson, 57 F.3d 1093, 1097 & n. 6 (D.C.Cir.1995) (citation omitted). Drew‘s challenge falls substantially short of this standard.
First, the United States Supreme Court has held that a sentencing court may consider a defendant‘s conduct apart from his offense conduct without violating due process. See United States v. Watts, 519 U.S. 148, 151-53, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); Witte v. United States, 515 U.S. 389, 395, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (consideration of “relevant conduct” under Guidelines bears on character of offense of conviction and does not punish for different offense); Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (reaffirming propriety of sentencing court‘s consideration of “a defendant‘s past criminal behavior, even if no conviction resulted from that behavior“); see also
Second, the district court indeed relied in part on Szala‘s hearsay testimony. His testimony corroborated Mrs. Drew‘s testimony regarding Drew‘s actions. The Supreme Court has specifically held that the rules of evidence do not restrict the evidence a sentencing court may consider. See Nichols, 511 U.S. at 747, 114 S.Ct. 1921 (“As a general proposition, a sentenc-ing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.“). The sentencing court did not consider any prohibited evidence in sentencing Drew and, accordingly, we reject his due process claim.
Finally, Drew argues that the sentencing court improperly added a two-level adjustment under
Application Note 1 to
For the foregoing reasons, we affirm Drew‘s conviction. We vacate his sentence, however, because of the incorrect addition of a two-level adjustment for physical restraint of the victim and remand for resentencing in accordance with this opinion.
So ordered.
HARRY T. EDWARDS, Chief Judge, concurring in the judgment:
I concur in the judgment of the court. I write separately, however, because I feel that the court‘s disposition of the so-called Blackledge/Menna issue under the rubric of “waiver” warrants further explanation.
Appellant Drew has argued to the court that his conviction for violating
The majority opinion holds that Drew‘s attempt to invoke the Blackledge/Menna exception fails for two reasons: first, the constitutional issues now raised by Drew were “waived” when he failed to raise them first with the trial court; and, second, the constitutional questions need not be reached by this court, because they do not present a “jurisdictional” question. I fail to comprehend this line of analysis in light of my understanding of the Blackledge/Menna exception.
There are a number of potential theories of “waiver” and “forfeiture” in the criminal context. One is the well-known “plain-error” rule, most recently explained in full in United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As the Court noted there, “[n]o procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Id. (citations and internal quotation marks omitted). Absent “plain error,” objections not timely raised at trial normally cannot be raised on appeal.
Another theory of forfeiture/waiver arises in the context of post-trial, collateral attacks. In such cases, absent a showing of “cause and prejudice,” a defendant is barred from raising a constitutional challenge that could have been raised at trial. See, e.g., United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
An entirely different line of inquiry arises with respect to challenges that follow a guilty plea. As noted above, the general rule in such cases is that a conviction pursuant to a guilty plea is not subject to later challenge before an appellate court. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The principal exception to this rule is the so-called Blackledge/Menna principle that “a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.” Menna, 423 U.S. at 62-63 n. 2, 96 S.Ct. 241. The Blackledge/Menna exception does not depend upon whether the objection is labeled “jurisdictional,” at least the Supreme Court has never said this. Rather, the critical issue seems to be whether the constitutional challenge involves a claimed right by the defendant “not to be haled into court at all upon the felony charge.” Broce, 488 U.S. at 575, 109 S.Ct. 757 (quoting Blackledge, 417 U.S. at 30-31, 94 S.Ct. 2098). In Broce, the Court made it clear that the Blackledge/Menna exception is not without limits, holding that a guilty plea barred a later double jeopardy claim where the violation was not clear on the face of the indictment. 488 U.S. at 576, 109 S.Ct. 757.
The question that we face is whether there should be an additional barrier to the invocation of the Blackledge/Menna exception, i.e., whether a defendant must raise the constitutional objection before the trial court first in order to be able to raise it later before an appellate court. The Supreme Court has never addressed this issue.
Nor has this court ever addressed this issue. The majority‘s reliance on United States v. Baucum, 80 F.3d 539 (D.C.Cir. 1996), United States v. Badru, 97 F.3d 1471 (D.C.Cir.1996), and United States v. David, 96 F.3d 1477 (D.C.Cir.1996), is mis-
In any case, Baucum, Badru, and David have nothing whatsoever to do with the application of the Blackledge/Menna exception. The court in Baucum discussed Blackledge/Menna because the defendant in that case raised the novel question of whether a facial challenge to the constitutionality of a criminal statute is a jurisdictional question that can be raised at any time. 80 F.3d at 540. The panel in Baucum recognized that the Blackledge/Menna line of authority lent some support to the defendant‘s claim. But Baucum does not purport to apply the Blackledge/Menna exception. In fact, Blackledge/Menna has no direct bearing on the issues in Baucum—it is discussed merely by way of analogy. So I fail to understand the majority‘s reliance on these three cases in its resolution of the Blackledge/Menna issue.
The majority opinion appears to suggest that the mere failure to raise a constitutional challenge before the trial court automatically “waives” a defendant‘s right to pursue the issues in a subsequent attack under the Blackledge/Menna exception. The Supreme Court has never said this, and, as far as I can tell, none of our sister circuits subscribe to such a rule.
If a court faces a situation in which a defendant has pled guilty to a charge with respect to which it is facially clear that he could not be prosecuted—i.e., as that is understood under the Blackledge/Menna principle—it would be an extraordinary proposition to say that the defendant will nonetheless go to jail because he failed to object before the trial court. The Fifth Circuit seemed to recognize this problem in United States v. Knowles, 29 F.3d 947 (5th Cir.1994). The defendant there pled guilty to possession of a firearm in a school zone. Shortly after judgment in Knowles, the court of appeals, in another case, ruled that the underlying statute upon which the charge in Knowles was based was unconstitutional, because Congress had not properly invoked its power under the Commerce Clause when it enacted the statute. The defendant in Knowles never raised this constitutional challenge before the trial court. The court of appeals, however, first employed the “plain error” rule to determine whether to entertain the challenge, then, finding no forfeiture, the court considered the claim on the merits pursuant to the Blackledge/Menna exception. The Fifth Circuit flatly rejected the Government‘s claim that the defendant‘s guilty plea barred consideration of the constitutional claim:
Noting that a guilty plea generally waives defects in the underlying proceedings, the government also claims that Knowles‘s conviction on Count Two is proper because Knowles pleaded guilty. This argument is not persuasive. We have reversed other convictions against defendants who had pleaded
guilty to charges brought under the Gun Free School Zones Act. See United States v. Handy, 8 F.3d 20 (5th Cir. 1993) (unpublished). We have done so for the well-established reason that a guilty plea does not waive the right of the defendant to challenge the constitutionality of the statute under which he is convicted. See Menna v. New York, 423 U.S. 61, 62–63 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975) (“[A] plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.“).
In other words, the court in Knowles addressed the forfeiture issue through the normal “plain error” lens, and then applied the Supreme Court‘s “judged on its face/the charge is one which the State may not constitutionally prosecute” test in allowing an invocation of the Blackledge/Menna exception. I think this is the correct approach. There are not many cases in which a defendant is going to be able to satisfy both the plain error rule and the Blackledge/Menna standard to gain review where no objection has been raised in the trial court. Nonetheless, the Knowles approach ensures protection for those few defendants whose alleged “guilt” is illusory, because it is clear on the face of the charge that the State had no constitutionally sound basis upon which to prosecute.
Drew argues that
I concur in the judgment in the instant case, not simply because Drew failed to raise his constitutional claims before the trial court, but because he has failed to demonstrate any plain error in the judgment based on his guilty plea. Absent plain error, I agree that Drew forfeited his right to raise his claims before this court. Because there is no plain error in this case, there is no reason to address whether Drew‘s claim on its face implicates the constitutional power of the Government to prosecute. In short, Drew cannot resort to the Blackledge/Menna exception to raise his constitutional claims.