United States v. Freddie Grant

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4302

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FREDDIE GRANT,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:12-cr-00729-CMC-1)

Argued: March 26, 2014 Decided: June 3, 2014

Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.

Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Chief Judge Traxler and Senior Judge Hamilton joined.

ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C.,
Greenville, South Carolina, for Appellant. Stacey Denise
Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: Beth Drake, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
FLOYD, Circuit Judge:

A jury found Appellant Freddie Grant guilty of being a

felon in possession of ammunition. The district court

classified Grant as an armed career criminal, in part due to two

general court-martial convictions for violent crimes, and

calculated his Sentencing Guidelines range accordingly. Grant

now appeals, contending that we should vacate his sentence

because the district court erred by using the court-martial

convictions to classify him as an armed career criminal. For

the reasons we outline below, we affirm.

I.

On August 18, 2012, the Richland County Sheriff’s

Department (RCSD) in Columbia, South Carolina, received a report

that a fifteen-year-old girl had disappeared. RCSD identified

Grant as a suspect in the disappearance and obtained a search

warrant for his home in Elgin, South Carolina. When RCSD and

the Elgin Police Department executed the search warrant,

investigators seized two boxes of ammunition, which federal law

prohibited Grant—a felon—from possessing. See 18 U.S.C.

§§ 922(g)(1); 924(a)(2), (e). On August 26, 2012, the Federal

Bureau of Investigation arrested Grant for being a felon in

possession of ammunition, and a grand jury ultimately returned

an indictment charging him with the same offense.

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 A jury convicted Grant on January 15, 2013. A probation

officer prepared a Presentence Investigation Report (PSR), which

identified Grant as an armed career criminal due to two

convictions for violent felonies and one conviction for

possession with intent to distribute cocaine. The drug

conviction is not at issue in this case. The two violent felony

convictions occurred in 1980, while Grant was in Korea serving

in the Army. First, a general court-martial 1 convicted Grant of

assault by inflicting grievous bodily harm, in violation of UCMJ

article 128, after he cut a fellow servicemember on the face

with a razor blade. See 10 U.S.C. § 928(b)(2). Second, a

general court-martial convicted Grant of kidnapping, in

violation of UCMJ article 134. See id. § 934 (catch-all

provision). Grant’s kidnapping conviction stemmed from an

incident during which he overtook two military officials who

were transporting him while he was in custody for the assault.

Grant wrested an assault rifle from one of the officials,

1
The Uniform Code of Military Justice (UCMJ) provides for
three types of courts-martial: general, special, and summary.
10 U.S.C. § 816. A general court-martial is the highest court
level and has jurisdiction to try individuals for all crimes
outlined in the UCMJ, including capital crimes. Id. § 818.
Special courts-martial can try individuals for noncapital UCMJ
offenses but are limited in the types of punishment they may
impose. For example, special courts-martial cannot require
dishonorable discharge. Id. § 819. Summary courts-martial
adjudicate relatively minor offenses and have jurisdiction over
enlisted individuals, not military officers. Id. § 820.

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kidnapped the officials at gunpoint, and forced them to drive to

another location. Due to these convictions, Grant was

dishonorably discharged from the Army and sentenced to eight

years and nine months’ hard labor at the United States

Disciplinary Barracks in Fort Leavenworth, Kansas.

The PSR assigned Grant an offense level of 33. Due to

Grant’s classification as an armed career criminal, his criminal

history category increased from I to IV. These calculations

resulted in a Sentencing Guidelines range of 188 to 235 months’

imprisonment. After the district court considered the 18 U.S.C.

§ 3553(a) factors, it sentenced Grant to 212 months’

imprisonment.

II.

Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e), and section 4B1.4 of the Guidelines, an individual who

violates § 922(g) and has “three previous convictions by any

court referred to in section 922(g)(1) . . . for a violent

felony or a serious drug offense, or both, committed on

occasions different from one another” qualifies as an armed

career criminal. 18 U.S.C. § 924(e)(1) (emphasis added). Grant

contends that his court-martial convictions do not constitute

predicate convictions for enhancements under the ACCA because a

general court-martial does not constitute “any court.” We have

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jurisdiction under 28 U.S.C. § 1291 and review de novo the legal

conclusions underpinning the district court’s determination that

Grant is an armed career criminal. See United States v. Davis,

689 F.3d 349, 355 (4th Cir. 2012) (per curiam).

In support of his argument that a general court-martial is

not “any court” under the ACCA, Grant relies primarily on the

Supreme Court’s decision in Small v. United States, 544 U.S. 385

(2005). Small addressed whether a conviction in a Japanese

court could serve as the felony underlying a conviction pursuant

to 18 U.S.C. § 922(g)(1), which makes it “unlawful for any

person . . . who has previously been convicted in any court of[]

a crime punishable by imprisonment for a term exceeding one

year” to possess a firearm. See 544 U.S. at 387. Because the

ACCA provision at issue in this case invokes “any court referred

to in section 922(g)(1),” 18 U.S.C. § 924(e), courts’

interpretations of § 922(g)(1) are relevant here.

The Court began its analysis in Small by noting that “even

though the word ‘any’ demands a broad interpretation, we must

look beyond that word itself” to ascertain the meaning of “any

court.” 544 U.S. at 388. To frame this linguistic inquiry, the

Court relied on “the legal presumption that Congress ordinarily

intends its statutes to have domestic, not extraterritorial,

application.” Id. at 388-89. The Court then explained how

“foreign convictions differ from domestic convictions in

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important ways.” Id. at 389. First, other countries may

criminalize conduct that is legal in the United States. Id.

Second, foreign legal systems may be “inconsistent with an

American understanding of fairness.” For example, they may

treat men and women differently in important respects. Id. at

389-90. And third, foreign courts may punish conduct more

severely than domestic courts would punish the same conduct.

See id. at 390. Due to these potential differences, the Court

concluded that foreign courts “somewhat less reliably identif[y]

dangerous individuals,” and, therefore, determined that

utilizing foreign convictions under § 922(g)(1) contradicted

that provision’s aim. See id.

In addition to relying on these differences between foreign

and domestic convictions, the Court noted that other provisions

in the same statutory scheme as § 922(g)(1) demonstrated that

Congress intended to limit “any court” to domestic courts. See

id. at 391-92. For example, § 921(a)(20)(A) allows individuals

to possess guns after they commit “Federal or State” antitrust

or business regulatory offenses. Id. at 391. The Court

reasoned that reading “any court” to include foreign courts

would allow individuals convicted of domestic antitrust or

business regulatory crimes to possess guns but prevent

individuals with equivalent foreign convictions from doing so.

Id. Due to the differences between foreign and domestic courts,

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and because provisions such as § 921(a)(20)(A) illustrated that

Congress did not intend for § 922(g)(1) to encompass foreign

convictions, the Court held that “any court” did not include

foreign courts. Id. at 394.

Grant contends that some of the same reasons that led the

Supreme Court not to view a foreign court as “any court” under

§ 922(g)(1) support not considering a general court-martial as

“any court” under the ACCA. Specifically, Grant argues that,

just as there are differences between foreign and domestic

courts that justify not precluding individuals from possessing

firearms based on their foreign convictions, there are also

differences between general courts-martial and civilian courts

that warrant not classifying individuals as armed career

criminals due to their military convictions. In essence, Grant

contends that these differences render courts-martial, like

foreign courts, “inconsistent with an American understanding of

fairness.” Small, 544 U.S. at 389.

Military courts draw their constitutional authority from

Article I rather than Article III. See O’Callahan v. Parker,

395 U.S. 258, 261-62 (1969), overruled on other grounds by

Solorio v. United States, 483 U.S. 435 (1987). A military

officer must convene a general court-martial, over which a

military officer presides. 10 U.S.C. §§ 822(a); 825(a)-(b).

“Substantially different rules of evidence and procedure apply

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in military trials.” O’Callahan, 395 U.S. at 264. Notably, a

general court-martial—in contrast to a civilian jury—is not

necessarily comprised of the accused’s peers. When a general

court-martial tries an enlisted servicemember on active duty,

the court-martial need not include enlisted servicemembers

unless the accused so requests. Even then, the UCMJ requires

that enlisted servicemembers comprise only one-third of the

panel. See 10 U.S.C. § 825(c)(1). Commissioned officers on

active duty are always eligible to serve on courts-martial. Id.

§ 825(a). Courts-martial in noncapital cases may convict if

two-thirds of the panel members agree, id. § 852(b), but, like

civilian courts, they must find the accused guilty beyond a

reasonable doubt, id. § 851(c)(1). The Supreme Court attributed

these differences between courts-martial and civilian courts to

the fact that “it is the primary business of armies and navies

to fight or be ready to fight wars should the occasion arise,”

rendering the “trial of soldiers to maintain discipline . . .

merely incidental to an army’s primary fighting function.” See

O’Callahan, 395 U.S. at 262-65 (quoting United States ex rel.

Toth v. Quarles, 350 U.S. 11, 17-18 (1955)).

Despite these contrasts between courts-martial and civilian

courts, two of our sister circuits have held that courts-martial

constitute courts under the ACCA and § 922(g)(1). In United

States v. Martinez, 122 F.3d 421 (7th Cir. 1997), the Seventh

8
Circuit determined that a court-martial was a court for purposes

of the ACCA for three reasons. First, relying on the dictionary

definition of the word “any,” the court concluded that “the

adjective ‘any’ expand[ed] the term ‘court’” to encompass all

courts, including courts-martial. See id. at 424. But, as we

explain above, Small now forecloses this line of reasoning

because, in that case, the Supreme Court viewed “any” as an

ambiguous term. Second, the Seventh Circuit explained that the

Sentencing Guidelines provide that “[s]entences resulting from

military offenses are counted if imposed by a general or special

court[-]martial.” Id. (quoting U.S.S.G. § 4A1.2(g)). However,

that Guidelines provision applies to the instructions for

computing a defendant’s criminal history, not to the

instructions for determining which defendants qualify as career

offenders. 2 See U.S.S.G. § 4A1.2. Third, the court relied on

the Sixth Circuit’s decision in United States v. Lee, 428 F.2d

917 (6th Cir. 1970). Martinez, 122 F.3d at 424. In Lee, the

court explained that the judgments of courts-martial “are to ‘be

accorded the finality and conclusiveness as to the issues

2
At the time that the Supreme Court decided Small, the same
provision specified that “[s]entences resulting from foreign
convictions are not counted, but may be considered under § 4A1.3
(Adequacy of Criminal History Category).” Accordingly, Small
would have been unnecessary if these criminal history principles
applied to § 922(g).

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involved which attend the judgments of a civil court in a case

of which it may legally take cognizance.’” 428 F.2d at 920

(quoting Grafton v. United States, 206 U.S. 333, 345 (1907)).

The Ninth Circuit concluded that courts-martial qualify as

courts under § 922(g)(1) in United States v. MacDonald, 992 F.2d

967 (9th Cir. 1993). Like the Seventh Circuit, the Ninth

Circuit relied on Lee for the proposition that general courts-

martial are within the purview of “any court.” See id. at 969-

70. The Ninth Circuit also based its decision on cases, which

Small overruled, holding that foreign convictions can support

felon-in-possession charges. Id. at 968. In sum, Small

diminishes the degree to which we can turn to Martinez and

MacDonald for guidance as we decide this case.

Because the Supreme Court indicated that “any court” has an

ambiguous meaning, we may rely on other signals of congressional

intent, such as the legislative history, to interpret the ACCA.

See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 53 (4th

Cir. 2011). When Congress passed the ACCA, it noted that

“[s]tatistics indicate that nearly 25 million American

households—3 out of every 10—were affected by crimes involving

theft or violence. It has also become increasingly clear that a

large percentage of these crimes are committed by a very small

percentage of repeat offenders.” H.R. Rep. No. 98-1073, at 1,

10
reprinted in 1984 U.S.C.C.A.N. 3661, 3661. 3 Congress enacted the

ACCA “to increase the participation of the federal law

enforcement system in efforts to curb armed, habitual (career)

criminals.” Id. The Supreme Court summarized how the ACCA

achieves Congress’s goal in Begay v. United States:

As suggested by its title, the Armed Career Criminal
Act focuses upon the special danger created when a
particular type of offender—a violent criminal or drug
trafficker—possesses a gun. In order to determine
which offenders fall into this category, the Act looks
to past crimes. This is because an offender’s
criminal history is relevant to the question whether
he is a career criminal, or, more precisely, to the
kind or degree of danger the offender would pose were
he to possess a gun.

553 U.S. 137, 146 (2008) (citation omitted). Including court-

martial convictions for violent felonies in the armed career

criminal tabulation furthers Congress’s objective of identifying

and deterring career offenders.

3
This legislative history stems from an earlier incarnation
of the statute, which imposed stiffer penalties when the
defendant had three previous convictions for robbery or
burglary. See Armed Career Criminal Act of 1984, Pub. L. No.
98-473, § 1802, 98 Stat. 1937. It did not premise armed career
criminal classification on violent felonies or drug offenses.
However, the same concerns that motivated the original statute
spurred Congress’s decision to expand what crimes could serve as
predicate offenses under the ACCA. See Taylor v. United States,
495 U.S. 575, 587-88 (1990) (“[T]hroughout the history of the
enhancement provision, Congress focused its efforts on career
offenders—those who commit a large number of fairly serious
crimes as their means of livelihood, and who, because they
possess weapons, present at least a potential threat of harm to
persons.”).

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 The concerns that the Supreme Court raised in Small do not

compel us to deviate from the outcome that legislative history

supports. Grant has not highlighted any ways in which using

violent felony convictions by general courts-martial to classify

individuals as armed career criminals would conflict with the

ACCA’s provisions. Although Grant correctly identifies several

dissimilarities between courts-martial and civilian courts,

these differences do not rise to the level of the contrasts

between domestic and foreign courts that Small highlighted. For

instance, in support of its conclusion that foreign legal

systems may be “inconsistent with an American understanding of

fairness,” the Supreme Court quoted a report from the U.S.

Department of State “describing failures of ‘due process’ and

citing examples in which ‘the testimony of one man equals that

of two women.’” Small, 544 U.S. at 389-90. In light of the

extreme examples the Court used and the lack of incongruity

between court-martial convictions and the statutory scheme at

issue, we doubt the Supreme Court would interpret Small to

prevent court-martial convictions from qualifying as predicate

offenses under the ACCA. We consequently decline to do so.

III.

For these reasons, we agree with the district court’s

decision to use Grant’s general court-martial convictions to

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classify him as an armed career criminal. We therefore affirm

Grant’s sentence.

AFFIRMED

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