USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2194
UNITED STATES,
Appellee,
v.
DANIEL G. SULLIVAN,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin, Circuit Judge, _____________
and Lisi,* District Judge. ______________
_____________________
David J. Fine, by Appointment of the Court, with whom _______________
Dangel, Donlan & Fine, was on brief for appellant. _____________________
F. Mark Terison, Assistant United States Attorney, with whom _______________
Jay P. McCloskey, United States Attorney, and Elizabeth C. __________________ _____________
Woodcock, Assistant United States Attorney, were on brief for ________
appellee.
____________________
October 29, 1996
____________________
____________________
* Of the District of Rhode Island, sitting by designation.
LISI, District Judge. LISI, District Judge ______________
I. BACKGROUND I. BACKGROUND
Following a four day trial, a jury found defendant-
appellant Daniel G. Sullivan guilty of receiving a stolen firearm
after previously having been convicted of a felony ("Count I"),
aiding and abetting the sale of stolen firearms ("Count II"), and
aiding and abetting the sale of firearms to a convicted felon
("Count III"). Finding that Sullivan had been convicted of at
least three prior crimes of violence or serious drug offenses,
the district court sentenced Sullivan as an armed career criminal
pursuant to U.S.S.G. 4B1.4. The court imposed prison terms of
188 months on Count I and 120 months on each of Counts II and
III, to be served concurrently, with five years supervised
release thereafter.
Sullivan challenges the district court's determination
of his status as an armed career criminal for the first time on
appeal, a fact that Sullivan concedes in his brief. He alleges
no error with respect to the offense of conviction, sometimes
referred to as the "triggering offense." See, e.g., United ___ ____ ______
States v. Bell, 966 F.2d 703, 705 n.5 (1st Cir. 1992). Instead, ______ ____
Sullivan attacks the district court's use of his prior state
court convictions as predicate offenses for the armed career
criminal determination on two fronts. For the reasons set forth
below, this court rejects each of Sullivan's contentions and
affirms the district court's sentence.
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II. DISCUSSION II. DISCUSSION
A. Standard of Review A. Standard of Review __________________
At the outset, it is incumbent upon this court to
delineate the correct standard of its review. It is well-settled
in this circuit that arguments which an appellant failed to raise
in contemporaneous objections below are effectively forfeited on
appeal and reversible only if an appellant can establish "plain
error." United States v. Winter, 70 F.3d 655, 659 (1st Cir. _____________ ______
1995), cert. denied, 116 S. Ct. 1366 (1996); see also United ____________ _________ ______
States v. Alzanki, 54 F.3d 994, 1003 (1st Cir. 1995), cert. ______ _______ _____
denied, 116 S. Ct. 909 (1996); United States v. Griffin, 818 F.2d ______ _____________ _______
97, 100 (1st Cir.), cert. denied, 484 U.S. 844 (1987). Under ____________
this standard, an appellant must establish: "(1) 'error,' i.e., ____
a '[d]eviation from a legal rule'; (2) that the error is 'plain'
or 'obvious'; and (3) that the plain error affected 'substantial
rights.'" United States v. Winter, 70 F.3d at 659 (quoting _____________ ______
United States v. Olano, 507 U.S. 725, 732 (1993)). Regardless of _____________ _____
whether an appellant bears this burden, however, the decision to
correct the error is entirely discretionary. See id. We proceed ___ ___
to address Sullivan's two arguments in light of these principles.
B. Sufficiency of the Indictment B. Sufficiency of the Indictment _____________________________
Sullivan's first argument concerns the sufficiency of
the indictment under which he was charged. Sullivan avers that
the list of his prior state court convictions contained in the
indictment did not contain three convictions valid for use as
predicate offenses under the Armed Career Criminal Act ("ACCA"),
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18 U.S.C. 924. A thorough examination of the indictment
undercuts this argument, however.
The indictment lists a number of Sullivan's previous
convictions, ranging from simple drug possession in 1970, to
burglary in 1983. Sullivan does not challenge the use of two of
these convictions, the burglary conviction on May 18, 1983, and
one on October 29, 1992 for arson, as predicate offenses.1 The
issue raised on appeal is whether any of the remaining
convictions were valid for use as a third predicate offense.
With respect to this issue, Sullivan devotes the
majority of his efforts to arguing why his several drug
convictions, a conviction for possession of bomb materials, and a
generic conspiracy conviction are inadequate to serve as
predicate offenses. We need not address these contentions.
The presentence report reveals that Sullivan had four ____
prior state court burglary convictions, not one, as he and the
indictment suggest. This inconsistency is attributable to the
fact that the convictions were consolidated for sentencing in the
state court in which Sullivan was tried. It is clear, however,
that the burglaries took place on different dates, involved four
different victims, and involved four distinct sentences.
It is well-settled in this circuit and others that
crimes which were committed on different dates, involved
different locations, and targeted different victims are to be
____________________
1 Sullivan declines to do so for good reason: the term "violent
felony" is defined by statute to include the crimes of arson and
burglary. See 18 U.S.C. 924(e)(2)(B). ___
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treated as distinct for purposes of 18 U.S.C. 924(e). See ___
United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995); United _____________ ______ ______
States v. Lewis, 40 F.3d 1325, 1346 (1st Cir. 1994); United ______ _____ ______
States v. Godinez, 998 F.2d 471, 472-73 (7th Cir. 1993). ______ _______
Accordingly, any three of the five prior state convictions for
burglary or arson could have served as the predicate offenses
necessary to sentence Sullivan as an armed career criminal.
Any argument that Sullivan did not receive adequate
notice that the government intended to seek an enhancement under
the ACCA because the four burglary convictions were not
delineated in the indictment must also fail for two reasons.
First, the government "need not allege in the indictment the
three prior felonies that it will use to enhance a defendant's
sentence under 924(e)(1)." United States v. Tracy, 36 F.3d _____________ _____
187, 198 (1st Cir. 1994), cert. denied, 115 S. Ct. 1717 (1995); ____________
see also United States v. Rumney, 867 F.2d 714, 719 (1st Cir.), ________ ______________ ______
cert. denied, 491 U.S. 908 (1989). Second, notwithstanding the _____________
government's failure to elucidate the specific felonies it would
use as predicate crimes, it did announce its intention to seek an
enhanced sentence under the ACCA in both the indictment and a
trial brief filed prior to commencement of trial. See United ___ ______
States v. Tracy, 36 F.3d at 198; United States v. Rumney, 867 ______ _____ ______________ ______
F.2d at 716. Accordingly, we find no plain error with respect to
this issue.
C. Restoration of Civil Rights C. Restoration of Civil Rights ___________________________
Sullivan's second argument is grounded in 18 U.S.C.
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921(a)(20). This section provides that "[a]ny 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 [the ACCA], unless such pardon,
expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive
firearms." 18 U.S.C. 921(a)(20). Sullivan relies on the fact
that various laws enacted by the State of Maine between 1975 and
1981 served to restore the civil rights that had previously been
denied to those convicted of felony offenses.
Civil rights generally encompass "the right to vote,
the right to seek and hold public office, and the right to serve
on a jury." United States v. Caron, 77 F.3d 1, 2 (1st Cir.) (en _____________ _____
banc), cert. denied, 116 S. Ct. 2569 (1996). At one point in ____________
time, the State of Maine denied these rights to felons. In 1975,
however, Maine reversed course and restored these rights. At the
time of Sullivan's state court arson and burglary convictions,
the restoration effort by Maine was complete: felons were
permitted to vote, hold office, and serve on a jury. As such,
Sullivan invites us to provide a favorable response to the
question left open in this circuit by Caron, that is, whether _____
civil rights which have never actually been forfeited can
nonetheless be "restored."
We need not answer this question here, however.
Section 921(a)(20) provides that a conviction may serve as a
predicate offense under the ACCA notwithstanding the restoration
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of civil rights theretofore forfeited if the restoration statute
imposes a restriction on the felon's ability to possess a
firearm. 18 U.S.C. 921(a)(20). While the restoration statutes
enacted by Maine did not include an explicit restraint on a
felon's ability to possess a firearm, such restrictions were
already in place in Maine. See Me. Rev. Stat. Ann. tit. 15, ___
393 (West 1995);2 see generally Passamaquoddy Tribe v. State of ______________ ___________________ ________
Maine, 75 F.3d 784, 789 (1st Cir. 1996). Therefore, the _____
statutory restrictions imposed on a felon's ability to possess a
firearm in Maine afford Sullivan no relief from the sentencing
enhancements of the ACCA.
We think it is unnecessary to elaborate because our
reading of the statute is that followed by a majority of the
circuits that have spoken to the need to read state law as a
____________________
2 This statute provides, in pertinent part:
1. Possession prohibited. A person may not
own, possess or have under that person's
control a firearm, unless that person has
obtained a permit under this section, if that
person:
A. Has been convicted of a crime, under
the laws of the United States, this State or
any other state, that is punishable by
imprisonment for one year or more . . . .
2. Application after 5 years. A person
subject to the provisions of subsection 1
may, after the expiration of 5 years from the
date that the person is finally discharged
from the sentences imposed as a result of the
conviction or adjudication, apply to the
Commissioner of Public Safety for a permit to
carry a firearm. That person may not be
issued a permit to carry a concealed firearm
. . . .
Me. Rev. Stat. Ann. tit. 15, 393 (West 1995).
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whole. Indeed, apart from the District of Columbia Circuit, see ___
United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996), every ______________ ____
circuit court that has addressed the issue appears to have taken
the approach that we follow here. See United States v. Burns, ___ _____________ _____
934 F.2d 1157, 1159-61 (10th Cir. 1991), cert. denied, 502 U.S. ____________
1124 (1992); United States v. McLean, 904 F.2d 216, 218 (4th ______________ ______
Cir.), cert. denied, 498 U.S. 875 (1990); United States v. Erwin, ____________ _____________ _____
902 F.2d 510, 513 (7th Cir.), cert. denied, 498 U.S. 859 (1990); ____________
United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990); cf. _____________ _______ ___
United States v. G mez, 911 F.2d 219, 221-22 (9th Cir. 1990). We _____________ _____
reserve decision on a further question, which appears to have
divided the circuits more closely, as to whether a firearm
restriction in a state statute would be sufficient in a case
where the defendant received a document such as a pardon or a
certificate that purported to restore all civil rights but did
not expressly mention any restrictions with respect to firearms.
See United States v. Erwin, 902 F.2d at 512-13. ___ _____________ _____
Accordingly, the district court properly used the state
arson and burglary convictions as predicate offenses for purposes
of determining his sentence pursuant to the ACCA. We find no
plain error.
III. CONCLUSION III. CONCLUSION
For the foregoing reasons, the sentence imposed by the
district court is affirmed. ________
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