United States v. Michael C. Wicks
833 F.2d 192
9th Cir.
1987
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*2 As the Supreme pointed out in Lew- WEIGHT, Before WALLACE is, present” modifier is in the rele- “[n]o Judges. portion 1202(a), vant “and noth- PER CURIAM: ing suggests any restriction on scope the of ” Lewis, the term ‘convicted.’ 445 U.S. at conviction for appeals from his Wicks 60, 100 plain language S.Ct. at 918. The possession of a firearm under the felony the contention; statute contradicts Wicks’s Act of Criminal Armed Career language encompasses the any person 1986). We U.S.C. predicate three whenever ob- pursuant to 28 jurisdiction U.S.C. tained. We hold therefore thаt Wicks’s affirm. we § conviction under the statute was not error. years sentenced to 15 incar- Wicks was To Wicks’s contention that this result is 1202(a), pro- which ceration under section anomalous because simultaneous convic- vides in that: tions do not evidence “career” criminality, person case of a [i]n respond “if ignore one must transрorts or in commerce possesses, plain language of a statute possi- to avoid a any firearm and who has three ‘ bly result, anomalous short answer “[t]he court оf the United [a is that did not write the statute any political or of a State subdi- ’ ” way.” Depart North Carolina vision thereof] Transportation ment v. Crest Street person imprisonеd ... such shall be ... — Council, Inc., U.S. —, Community years.... not less than fifteen 336, 341, (1986), 107 S.Ct. 93 L.Ed.2d 188 Wicks contends that his conviction under quoting States, Garcia v. United ‍​​​‌​‌‌‌​‌​‌​​‌​​‌​‌​‌‌‌‌​‌​​‌‌​‌‌‌​‌​‌‌​​​​‌​‌‌‍469 U.S. the statute is invalid because two of his 70, 79, (1984), quoting 104 S.Ct. 296 Rus predicate burglary convictions result- States, 16, 23, sello v. United 464 U.S. ed from that occurred on the 479, 485, (1983). 83 L.Ed.2d 472 night (though locations), same at different prosecuted together, and that legisla Wicks alsо contends that the resulted in concurrent sentences. He ar- history supports tive of section 1202 gues inappropriate that it is interpretation of the statute. Resort to the statute to a in his because legislative history necessary is neither designed the statute was prob- to treat the appropriate in excep this casе. “Unless lem of career criminals and career crimi- tional circumstances dictate nals criminals who “have failed in reha- ‘when we find the terms of a statute unam prosecu- bilitation after three successive biguous, ‍​​​‌​‌‌‌​‌​‌​​‌​​‌​‌​‌‌‌‌​‌​​‌‌​‌‌‌​‌​‌‌​​​​‌​‌‌‍judicial inquiry complete.’ is tions.” He contends that no rehabilitation Burlington Northern Railroad Co. possible between the two — Commission, Oklahoma Tax U.S. day which were committed on the same and —, 1855, 1860, 107 S.Ct. imposed resulted sentences concurrent quoting Rubin v. United concludes, at the same time. Wicks 424, 430, 698, 701, 449 U.S. these twо cannot considered exceptional find no We as two convictions under the stat- circumstances here. look first to the “[W]e questions statutory ute. We review in- statutory language legisla- and then to terpretation Sup- de novo. Mobil Sales & statutory language tive is if Venus, ply Corp. v. Panamax Valley Authority unclear.” Tennessee (9th Cir.1986) (Mobil). Hill, 184 n. statute, (1978) interpret When we n. add- starting point ed); Stenson, must be the see also Blum v. satisfied 79 L.Ed.2d of “three convictions” not be- Mobil, cause two out of Wicks’ three convictions 804 F.2d at burglariеs occurring if it language is clear. But even night. not, legislative history is in- plain with the consistent Section of the Armed Career House Commit- Report statute. 1984,18 U.S.C.App. Act of Criminal *3 Judiciary indicates that section tee on the 1986), a minimum provides for 1202(a) repeat at offenders directed year fifteen sentence for a in most serious offenders ‍​​​‌​‌‌‌​‌​‌​​‌​​‌​‌​‌‌‌‌​‌​​‌‌​‌‌‌​‌​‌‌​​​​‌​‌‌‍a lоcali- and “the transports a firearm possesses, or ty.” H.R.Rep. No. “three and who has (1984), reprinted in 1984 U.S.Code Sess., majori- burglary.” The Cong. & Admin. News ty ambiguity language. finds this and are com- Most robberies dictionary defini- The follows high per- by career criminals. mitted holds that the tion of conviction and lan- centage of robberies and are 1202(a) “encompаsses any guage of section repeat by a limited number of committed person with three Many commit scores of of- offenders. Opinion Majority wherever obtained.” аt majority of these of- fenses .... [T]he by fenses are committed career crimi- view, majority’s approach, my The nals. Judge leads to an incorrect result. As language. trаcks the

This Learned Hand stated: The dissent relies on It is of the surest indexes of a ma- one (8th Cir.1987) (Petty), Petty, developed jurisprudence not to ture and reach the conclusiоn that did not dictionary; make a fortress out intend section “to to individu- always but to remember that statutes als like received two out of Wicks who purpose ‍​​​‌​‌‌‌​‌​‌​​‌​​‌​‌​‌‌‌‌​‌​​‌‌​‌‌‌​‌​‌‌​​​​‌​‌‌‍object to accom- have some three convictions two acts plish, sympathetic imaginative whose occurring night.” Dissent at guide discovery is the surest to their disagree. 194-195. We meaning. Cirсuit held that a Markham, Cabell v. defendant’s six convictions for six armed (2d Cir.1945), aff'd, S.Ct. simultaneously committed Judge 90 L.Ed. 165 Hand’s imposing justify insufficient an en- approach supported by Court 1202(a). hanced sentence under section authority. majority opinion The at 193 re- distinction, Petty expressly recognized following lies on the statement the Su- however, between convictions for simulta- preme in Burlington Northern Co. neous robberies and convictions for robber- — U.S. —, Comm’n, v. Oklahoma Tax ies distinct time. The court stated that (1987): accepted argu- thе Solicitor General’s exceptional circumstances dictate “Unless ment that section “was intended to terms of a we find the ‘[w]hen multiple episodes reach сriminal unambiguous, judicial inquiry is statute Wicks, Undeniably, distinct in ” time....” Northern, complete.’ Burlington unlike committed two Rubin v. United (quoting at 1860 places two different at two different times. Petty require does reach a (1981)). The Court contrary result. Burlington Northern also stated expressed ‘clearly absence a “[i]n ’ contrary, legislative intention to the Judge, language ‘must ordi- of the stаtute itself dissenting: Bur regarded narily be as conclusive.’ Northern, lington (quot I at 1860 dissent. I believe that in this case the — U.S. —, James, ing Armed Career Criminal Act’s (1986)) than three convictions for an Armed Cаreer added). Thus, under the Su- violation, Criminal Act Assistant Attorney rulings, should ad- preme courts Court’s S. Trott stated the follow- literal of a statute here to the ing: legislature has made it clеar unless the These people who have demonstrat- intended. contrary that a ed, by definition, virtue of their that lock- I should not believe up letting them go them doesn’t require be read convic- any good. do They go again, you lock legislative history supports tions.1 The up, you them go, let them it doesn’t do reading more realistic good, they аre back for a third time. majority opinion gives it in this than juncture, At that say, we should “That’s legislative history clearly indi- it; out, We, time it is all respon- over. as section, Arm- cates that this as people, give sible will you op- never Act, *4 ed Career Criminal was not intended portunity again. to do this to individuals like Wicks who re- Trott Testimony, supra, at 64. it is ceived two out of thrеe convictions for two clear that section is aimed at recidi- burglary occurring acts of vists, not at individuals who commit three night. The title of the Act indicates acts that rеsult in three convictions. criminals, was aimed at career rather than punishable those who commit three I would follow the Eighth lead of the Congress during acts. Statments made in Petty, consideration of the bill confirm that it was and hold something targeted at individuals who have mere- more than three required. convictions is ly burglaries. committed three Circuit held that defend- required. More was The bill was directed ‍​​​‌​‌‌‌​‌​‌​​‌​​‌​‌​‌‌‌‌​‌​​‌‌​‌‌‌​‌​‌‌​​​​‌​‌‌‍ant’s six convictions for six armed robber- society’s at individuals who are resistant together against ies committed six differ- efforts at rehabilitation. As stated in the persons ent in a restaurant were insuffi- April Solicitor General’s brief filed justify imposing cient to an enhanced sen- petition on for a writ of certiorari 1202(a). Here, tence under section where [Department “the concern of of Jus- two the three convictions stemmed from Congressional officials their testi- ticе] night, that occurred on the same mony was with ‘hard core recidivist rob- I would hold that section was not offenders,’ burglars,’ ‘repeat bers and to, not, apply. intended and therefore does citing, e.g., Id. ‘three-time losers.’ Act, Hearing Armed Career Criminal Be-

fore the Subcomm. Crime of the House Comm, Judiciary, Cong., on the 98th (1984) (testimony

Sess. 47-66 of Assistant

Attorney Trott) (“Trott S.

Testimony”); Armed Career Criminal Aсt Comm, 1983, Hearing Before the Senate Judiciary, on the 1st Sess. (1983) (testimony Deputy As- Attorney Knapp).

sistant General James

During hearing concerning legis- a 1984

lation that would rather two majority implies Supreme unambiguous only already has rulеd on whether the term "convic- any ambiguity regard challenge whether a defendant could present purposes. tions” bears validity prior fighting of a conviction in However, Majority Opinion at 193. in the case 1202(a) charge. Supreme section Court's point, cited for this ruling bearing problem has Lewis on the present before us in the Court found