UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Allen BRADY, Defendant-Appellant.
No. 10-5269
United States Court of Appeals, Fourth Circuit
July 13, 2011
191
Prior to his attempted introduction of the false statements, Lecco did not argue police misconduct as a defense; rather, his theory was that the murder was the result of an out-of-control cocaine binge with which he was not involved. Because police manipulation did not tend to prove Lecco‘s claim that the witnesses lied to police to protect themselves, we hold that the district court did not abuse its discretion in excluding the statements as irrelevant.
Finally, Lecco claims that the Government denied him due process when it called Friend, but not Burton, to testify. Essentially, Lecco argues that Friend‘s testimony was so “diametrically opposed” to Burton‘s that the Government knowingly presented perjured testimony by calling only Friend. The government “may not knowingly use false evidence, including false testimony, to obtain a tainted conviction.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In order to establish a due process violation, a claimant must show “the falsity and materiality of the testimony and the prosecutor‘s knowledge of its falsity.” Basden v. Lee, 290 F.3d 602, 614 (4th Cir.2002). Perjured testimony is material “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. (internal quotation marks omitted).
Lecco has not shown that the Government deprived him of due process by calling Friend to testify rather than Burton because he has not shown that the Government knew of any falsity in Friend‘s testimony or that the testimony was material. Lecco falsely characterizes the Government‘s assertion at Burton‘s sentencing hearing that Burton “was the first to come forward with at least the closest true story of what happened to Collins,” and he has not established that Friend and Burton‘s slightly differing accounts of the murder could have affected the judgment of the jury.
Accordingly, we affirm the district court‘s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, Elizabeth A. Flagg, Research & Writing Attorney, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I.
Section 4B1.4 of the Sentencing Guidelines provides for the imposition of an enhanced sentence on any person who is an armed career criminal, as defined by
Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
In determining whether state law provides that a defendant‘s civil rights have been restored, we “look to the whole of state law.” Clark, 993 F.2d at 403 (internal quotation marks omitted). “This inquiry requires an analysis of whether and to what extent [North Carolina] restores the civil rights of ex-felons.” United States v. Essick, 935 F.2d 28, 30 (4th Cir.1991) (internal quotation marks omitted).
North Carolina law restores to convicted felons some civil rights upon release from imprisonment. See
Brady, however, did not immediately regain the right to possess a firearm at the time of his release. At that time, North Carolina‘s Felony Firearms Act (“NCFFA“),
In Brady‘s view, the district court erred in sentencing him as an armed career criminal because, five years after he was discharged from the custody of the North Carolina Department of Correction, his civil rights were restored as to each of the 1980s convictions and, as a result, such convictions do not qualify as ACCA predicates. Although acknowledging that North Carolina amended the NCFFA in 2004 to prohibit convicted felons from possessing firearms under any circumstances, Brady contends that the 2004 amendment cannot deprive him of his fundamental right to possess a firearm in his residence, see McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570, 635-36, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), without violating the Ex Post Facto Clause of the Constitution.
A.
Brady correctly notes that, by operation of law, his right to possess any and all firearms was fully restored to him under North Carolina law on March 24, 1995, five years after his release from prison after he completed the prison sentences for the 1980s convictions. See O‘Neal, 180 F.3d at 121 (applying the law in effect at the time of the defendant‘s discharge from prison to determine the right of the defendant to possess firearms). However, the 2004 amendment to the NCFFA retroactively stripped Brady of this previously restored right. See
Whether the 2004 amendment to the NCFFA is ex post facto as applied to Brady is a question of law we review de novo. Farrow, 364 F.3d at 554. The Ex Post Facto Clause of the Constitution prohibits laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). The Supreme Court has defined the latter part of this rule as prohibiting laws hat retroactively “increase[] the penalty by which a crime is punishable.” Ca. Dep‘t of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In O‘Neal, this court observed that:
“Punishment” and “penalty” are constitutional terms of art, defined in contra-distinction to laws that are “civil” or involve “regulation of a present situation.” While laws that retroactively increase “punishment” or impose a “penalty” violate the Ex Post Facto Clause, retroactive civil or regulatory ones do not.
O‘Neal, 180 F.3d at 121-22 (internal citations omitted).
In determining whether a law is punitive or regulatory in nature, courts apply a two-part test. A court should first ask “whether the legislature‘s intent, as discerned from the structure and design of
In O‘Neal, this court rejected the argument that retroactive application of the former five-year ban on handgun possession codified in the version of the NCFFA in effect in 1983 was punitive and therefore unconstitutional under the Ex Post Facto Clause. With regard to the first prong of the ex post facto analysis, the court relied on several North Carolina decisions rejecting ex post facto challenges to earlier versions of section 14-415.1. O‘Neal, 180 F.3d at 123. In view of these decisions, this court concluded that “North Carolina has made clear that its intent was to enact a civil disability to protect the public from those, felons, whose possession of guns there was the most reason to fear, not to impose any punishment or penalty on felons.” Id. In addressing the second part of the analysis, the court concluded that the effect of the five-year ban was not “so punitive in fact” that the law should be considered punitive in nature and that the probationary period provided an additional civil disability in an effort to protect the public. Id. at 124.
In Farrow, this court rejected a similar argument challenging as ex post facto the retroactive application of the 1995 amendment to the NCFFA. In finding no violation of the Ex Post Facto Clause, this court cited O‘Neal as controlling. Farrow, 364 F.3d at 555. Additionally, the Farrow court concluded that the indefinite ban in the 1995 amendment was “rationally connected to the state‘s legitimate interest in protecting the public.” Id.
With respect to the 2004 amendment, recent decisions from the Court of Appeals of North Carolina (“CANC“) and the Supreme Court of North Carolina (“SCNC“) make clear that the intent of the North Carolina legislature was to enact a civil disability to protect the public and that this disability is rationally related to that non-punitive intent.
In 2007, the CANC rejected the claim that retroactive application of the 2004 amendment to the NCFFA was ex post facto. Britt, 649 S.E.2d at 406-07 (”Britt I“). Although the SCNC later reversed Britt I, it did so on alternate grounds, leaving intact the ex post facto analysis performed by the CANC. Britt, 681 S.E.2d at 322-23 (”Britt II“). In 2010, the SCNC explicitly rejected a claim that the 2004 amendment to the NCFFA was an unconstitutional ex post facto law. State v. Whitaker, 364 N.C. 404, 700 S.E.2d 215, 220 (2010). Specifically, the court concluded that the ban was not punitive in nature since its intent was to protect the public from future violent actions of those considered dangerous or who had demonstrated a heightened disregard for the law. Id. at 218. The SCNC noted support for its conclusion in the Heller decision, in which the Supreme Court of the United States described bans on possession of firearms by convicted felons as regulatory action. Id. at 218-19 (citing Heller, 554 U.S. at 627 & n. 26, 128 S.Ct. 2783 (characterizing longstanding prohibitions such as the ban on possession of firearms by convicted felons as “presumptively lawful regulatory measures“)). The SCNC also concluded that the 2004 amendment was rationally
Taken together, then, O‘Neal, Farrow, Britt I, Britt II, and Whitaker uphold as constitutional the proposition that the NCFFA, as amended in 2004, is not an unconstitutional ex post facto law. The law may therefore be applied to Brady to retroactively strip him of his previously restored right to possess firearms without violating the Ex Post Facto Clause.
B.
Brady has not suggested in his appellate briefs that such a stripping of a restored right to possess firearms would not effectively revive a previously negated predicate conviction for purposes of
II.
Brady also argues that the district court committed plain error in sentencing him as an armed career criminal because the indictment did not charge a violation of the ACCA and he did not admit to those facts necessary to justify an ACCA sentence. As Brady correctly acknowledges, however, this claim is foreclosed by controlling Circuit precedent. See United States v. Thompson, 421 F.3d 278, 284 n. 4 (4th Cir.2005) (holding that an indictment need not reference or list the prior convictions used to enhance a sentence); United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir.2005) (holding that prior convictions used as the basis for an armed career criminal sentence need not be charged in the indictment or proven beyond a reasonable doubt).
III.
Accordingly, we affirm the district court‘s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.