United States v. Jimmy Lee Stuckey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 00-1300
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas
Jimmy Lee Stuckey, Jr., *
*
Appellant. *
___________

Submitted: May 9, 2000

Filed: August 9, 2000
___________

Before BOWMAN, LOKEN, and BYE, Circuit Judges.
___________

BYE, Circuit Judge.

Jimmy Lee Stuckey, Jr., appeals both his conviction for being a felon in
possession of a firearm, and the sentence he received. Stuckey challenges the
conviction by claiming the district court erred during jury deliberations when it gave
a supplemental instruction that stated a "person who has been convicted of a felony
may not knowingly possess a firearm at any time," even though the indictment had
charged possession "on or about" a date certain. Stuckey challenges the sentence by
claiming that four prior drug convictions stemming from a military court martial should
not have been used to enhance his sentence as an armed career criminal. We affirm the
conviction, but reverse and remand for resentencing.

BACKGROUND

Stuckey was charged in a two-count indictment, the first count of which charged
him with being a felon in possession of a firearm "on or about December 25, 1998."
The second count charged Stuckey with making a false statement to a gun dealer at the
time he purchased that firearm. He pleaded guilty to the false statement charge, but
went to trial on the possession charge.

At trial, the jury learned that Stuckey, a resident of Memphis, Tennessee, was
delivering presents to his relatives in Arkansas on Christmas Day. He was driving over
ninety miles per hour down Interstate 40 when stopped by Arkansas state trooper Sam
Koons. Stuckey was driving a car owned by Sheila Gray, his girlfriend.

Before Stuckey pulled over, Trooper Koons noticed him moving around in the
car, leaning over as if trying to hide something. When Koons approached the vehicle
to ask for license, registration, and proof of insurance, Stuckey reached into a duffle
bag on the passenger's seat to get his wallet. In the process, Trooper Koons observed
a gun clip in the duffle bag. Koons subsequently searched the vehicle and discovered
a handgun under the driver's seat. The gun clip from the duffle bag fit the handgun
found under the driver's seat. The other items in the duffle bag were men's clothes.

Gray, the girlfriend, testified that the car, the gun, the duffle bag, and all the
contents of the duffle bag, belonged to her. Koons testified that, on the night of the
arrest, Gray came to the police station and was asked if she owned any guns. She told
Koons that she owned a long gun (gesturing to indicate the length of her gun), but that
she did not own a short gun. Gray denied this conversation at trial.

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 Although Stuckey pleaded guilty to the false statement charge arising out of the
purchase of the firearm, the district court allowed evidence related to Stuckey's
purchase to prove his subsequent possession. Thus, the jury learned that the handgun
was traced to a sale made in February 1998 by Ray Abel, a federal firearms license
holder. Stuckey was the purchaser.

During jury deliberations, the jury sent a note to the court asking: "On Element
Number 2, knowingly possessed a firearm, does this mean knowingly at any time or at
the time of his arrest?"1 The district court then gave the jury a supplemental instruction
indicating: "A person who has been convicted of a felony may not knowingly possess
a firearm at any time." Defense counsel objected to the instruction: "I would object to
the response that knowingly possessed a firearm pertained to any time because the
evidence as put on today, and in the indictment itself, it's on the date of arrest,
December 25, 1998 . . . [and] it should pertain to that date." The jury found Stuckey
guilty.

At the time of sentencing, the court found that Stuckey was subject to an
enhanced sentence under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 as an armed career
criminal, based on four predicate "serious drug offenses." All four prior drug offenses
stemmed from the same general court martial in a military court on April 10, 1989,
under which Stuckey was found to have:
(a) distributed 4.52 grams of marijuana on August 26, 1988;
(b) distributed 66.24 grams of marijuana on September 16, 1988;
(c) possessed an additional 3.25 grams of marijuana with intent to distribute
on September 16, 1988; and
(d) distributed 2.086 grams of cocaine on September 14, 1988.
Each offense carried a maximum sentence of 15 years under military law.

1
Stuckey was arrested December 25, 1998, the same date charged in the
indictment.

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 Application of the armed career criminal provisions substantially increased
Stuckey's sentencing range under the guidelines. Without the enhancement, the
guideline range would have been 51 to 63 months. With the enhancement, the
guideline range became 188 to 235 months. Stuckey was sentenced to 188 months in
prison on the possession charge, to be served concurrently with a sentence of 120
months on the false statement charge.2

DISCUSSION

I. The Conviction

The first issue we must decide is whether the supplemental instruction given by
the district court requires us to reverse the conviction and remand for retrial. Normally,
we review instructions given to the jury under an abuse of discretion standard. See,
e.g., United States v. Smith, 104 F.3d 145, 148 (8th Cir. 1997). But where the issue is
whether an instruction amounts to a "variance," the issue we ultimately decide to
address,3 a different standard of review applies. Whether a variance exists, and, if so,
whether that variance prejudiced Stuckey, are questions of law that we review de novo.
See, e.g., United States v. Portela, 167 F.3d 687, 700 (1st Cir. 1999); United States v.
Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). A variance that does not result in
actual prejudice to the defendant is harmless error, and does not require reversal of the
conviction. See United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986).

2
Absent the enhancement, the guideline range on the false statement charge
would also have been 51 to 63 months.
3
We acknowledge some misgivings about limiting Stuckey's claim of error solely
to a variance issue. Yet we feel obligated to restrain from fully addressing all the
potential issues due to the manner in which Stuckey raised the supplemental jury
instruction issue before us and in the district court.

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 The supplemental instruction given in this case was not ideal. Although the
instruction was an accurate statement of the law, its technical accuracy can not be
viewed in a vacuum. Instead, the propriety of giving the instruction must be viewed in
relation to the specific context in which the request for supplemental instruction arose,
and in relation to the charging language of the indictment.

The jury's request for additional instruction was, presumably, triggered by the
fact that the government introduced evidence of possession relating to periods of time
other than the date of arrest alleged in the indictment. Most notably, there was
evidence that Stuckey also possessed the firearm at the time of its purchase.4

Under these circumstances, the district court should have used an instruction
similar to the one used in United States v. Brody, 486 F.2d 291 (8th Cir. 1973). Brody
also involved a firearm possession charge where, during deliberations, the jury asked
a question about the timing of the defendant's possession: "Does Count One of the
Indictment mean at the time of the arrest or possession of the gun at any previous time
covered by the evidence at trial?" Brody, 486 F.2d at 292. The court responded:

Count One of the indictment in this case charges that the offense charged
therein was committed "on or about the 7th day of July, 1972." The proof
need not establish with certainty the exact date of the alleged offense. It
is sufficient if the evidence in the case establishes beyond a reasonable
doubt that the offense was committed on a date reasonably near the date
alleged.

Id.

4
Inferences could also fairly be drawn that Stuckey had possession of the firearm
at times in between the date of purchase and the date of arrest.

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 We approved the instruction, holding that the "on or about" charge in the
indictment could encompass possession at times other than the day of actual arrest.
See id. In the instant case, the district court neglected to give a Brody instruction. If
the court had given an instruction like the one used in Brody, then the jury could have
determined whether the evidence in this trial was sufficient to show that possession
occurred at a time "reasonably near" the date alleged in the indictment. The jury should
have had an opportunity to so determine.

Deciding that a different instruction should have been given does not conclude
our inquiry, however. We must determine whether the supplemental instruction that
was in fact given requires reversal. In United States v. Ford, 872 F.2d 1231 (6th Cir.
1989), the Sixth Circuit addressed that question as applied to a supplemental instruction
very similar to the one given here. Ford also involved a firearm possession charge
where the evidence demonstrated possession at times other than the date of arrest
alleged in the indictment. The first period of possession pertained to the purchase of
the gun on November 2, 1986. A second period of possession was on August 8, 1987,
when Ford was alleged to have shot himself in the hand with the firearm. A third
period of possession was at the time of Ford's arrest during a domestic altercation on
September 28, 1987. This third date was the "on or about" date charged in the
indictment. See Ford, 872 F.2d at 1232-34.

In its initial instructions, the Ford trial court gave an instruction similar to that
used in Brody: proof of possession at a time "reasonably near" the date alleged in the
indictment was sufficed to convict. See id. at 1234. When the jury asked for further
instruction as to what constituted a date "reasonably near" the date charged in the
indictment, the court gave a supplemental instruction which indicated that a person may
not possess a firearm at any time after being convicted of a felony. The court further
instructed that proof of Ford's possession could encompass any time between the date
of purchase and the date of arrest. See id.

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 The Sixth Circuit considered whether the supplemental instruction was (1) a
response to a variance in the evidence, not amounting to reversible error unless the
defendant showed prejudice; or (2) a constructive amendment of the indictment,
amounting to reversible error per se because it infringed upon the Fifth Amendment's
guarantee that no person shall be held to answer for a crime not presented to, and
indicted by, a grand jury. See id. at 1235. The court concluded that the instruction was
a constructive amendment, because it essentially altered the elements of the offense set
forth in the indictment, allowing the jury to convict Ford of a crime other than the one
charged in the indictment. See id. at 1236.

We have frequently discussed the difference between a variance in the evidence
and a constructive amendment of the indictment, most recently in United States v.
Novak, ___F.3d ___, ___, 2000 WL 781077 at *5 (8th Cir. June 20, 2000), and United
States v. Emery, 186 F.3d 921, 927-28 (8th Cir. 1999). The basic difference between
a constructive amendment and a variance is this: a constructive amendment changes the
charge, while the evidence remains the same; a variance changes the evidence, while
the charge remains the same. See Novak, 2000 WL 781077 at *5; Emery, 186 F.3d at
927-28.

The difference between the two concepts is significant. A constructive
amendment is reversible error per se, but a variance is subject to the harmless error
rule. That difference stems from the underlying constitutional rights affected. A
constructive amendment directly violates the Fifth Amendment right not to "be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury." U.S. Const. amend. V. The Supreme Court long ago
recognized the damaging effect of modifications to a grand jury charge:

If it lies within the province of a court to change the charging part of an
indictment to suit its own notions of what it ought to have been, or what
the grand jury would probably have made it if their attention had been

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 called to suggested changes, the great importance which the common law
attaches to an indictment by a grand jury, as a prerequisite to a prisoner's
trial for a crime, and without which the Constitution says "no person shall
be held to answer," may be frittered away until its value it almost
destroyed.

Ex Parte Bain, 121 U.S. 1, 10 (1887).

Conversely, a variance in the evidence affects the defendant's right to adequate
notice, that is, the Sixth Amendment right "to be informed of the nature and cause of
the accusation." U.S. Const. amend. VI. The charging document does not change,
only the evidence against which the defendant expected to defend. As a result, a
variance does not require reversal per se, because a court must still examine whether
or not the variance prejudiced the defendant's right to notice. Absent prejudice, the
variance is harmless error.5

The distinction between a constructive amendment and a variance is clear in
theory, but often blurred in application. This case presents a good example. The
district court's supplemental instruction could be viewed as a change in the charge
itself, thereby allowing the jury to convict Stuckey of an offense (possession of the
firearm at the time of purchase) other than that charged in the indictment (possession

5
A constructive amendment could also affect a person's Sixth Amendment notice
rights, but its direct violation of the Fifth Amendment grand jury right obviates the need
to perform a prejudice analysis. It bears mention that when the right to a grand jury is
not at issue (such as in the habeas context under 28 U.S.C. § 2254 where the Fifth
Amendment grand jury right does not apply to the states), a constructive amendment
would not always result in reversible error. A prejudice analysis would have to be
performed to determine whether a defendant's Fourteenth Amendment due process or
notice rights were materially affected. See, e.g., Lucas v. Odea, 179 F.3d 412, 417 (6th
Cir. 1999) (concluding that a constructive amendment prejudiced a defendant's
Fourteenth Amendment right to notice of the charges against him).

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at the time of arrest). On the other hand, the supplemental instruction could be viewed
as merely a response to a change in the evidence, since the prosecution offered
evidence of possession on dates other than those charged in the indictment.
Normally, we would decide whether to examine this supplemental instruction as
a constructive amendment, or as a variance. In this case, however, we feel constrained
to limit our analysis to the extent that the issue was raised in the trial court and on
appeal, for "[i]t is not this court's job to research the law to support an appellant's
argument." Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 642 (8th Cir. 1993) (quoting
United States v. Papia, 910 F.2d 1357, 1363 (7th Cir. 1990)).

At trial, defense counsel objected to the supplemental instruction by stating, "I
would object to the response that knowingly possessed a firearm pertained to any time
because the evidence as put on today, and in the indictment itself, it's on the date of
arrest, December 25, 1998 . . . [and] it should pertain to that date." That argument
perhaps sufficed to preserve the objection for review on appeal without subjecting it
to the plain error standard of review. See Fed. R. Crim. P. 30 (requiring party to state
"distinctly the matter to which that party objects and the grounds of the objection"); see
also Cross v. Cleaver, 142 F.3d 1059, 1068 (8th Cir. 1998) (holding that objection
must bring into focus the precise nature of the alleged error and state distinctly the
grounds for objection; if not, issue is reviewed on appeal for plain error only). But the
objection did not precisely identify the error as a violation of Stuckey's Fifth
Amendment rights.

Stuckey challenges the propriety of the supplemental instruction on appeal, but
only in the most perfunctory manner. Stuckey does not argue that the supplemental
instruction amounted to a constructive amendment of the indictment. Nor does he
identify the instruction as an infringement of his constitutional rights under the Fifth or
Sixth Amendments. Indeed, Stuckey neglected to develop any constitutional arguments
on appeal. Cf. Voss v. Shalala, 32 F.3d 1269, 1272 (8th Cir. 1994) (declining to

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address a constitutional challenge to a statute where the constitutional argument was
undeveloped on appeal).
Stuckey's opening brief cites no legal authority in its discussion of the
supplemental instruction. Stuckey merely concludes that the instruction was "clearly
an error of law." The only legal authority referred to by Stuckey, in his reply brief,
cites the general principle that supplemental instructions must be "accurate, clear,
neutral, and non-prejudicial." United States v. Suppenbach, 1 F.3d 679, 683 (8th Cir.
1993).

We have encountered some difficulty identifying the legal principle or doctrinal
framework upon which Stuckey relies. He has asked us simply to determine whether
the supplemental instruction was "non-prejudicial."

We conclude that Stuckey's request cannot be interpreted as raising a
constructive amendment issue, because the resolution of that issue would not entail a
"prejudice" analysis. As explained above, a constructive amendment violates a
defendant's Fifth Amendment grand jury right per se, that is, irrespective of prejudice.
But a prejudice analysis is required under the variance doctrine. The presence or
absence of prejudice in an instruction implicates a Sixth Amendment concern —
whether the government properly informed a defendant of the "nature and cause of the
accusation." U.S. Const. amend. VI. We therefore conclude that Stuckey's challenge
rests solely upon the variance doctrine.

Having reached this point in our analysis, we conclude that any variance in this
case did not result in material prejudice. Time is not a material element of a criminal
offense unless made so by the statute creating the offense. See Ledbetter v. United
States, 170 U.S. 606, 612 (1898). The date of the offense is not a material element of
a firearm possession charge under 18 U.S.C. § 922(g)(1).

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 When the date of the offense is not an element of the charge, we have held on
many occasions that a variance between the indictment date and the proof at trial is not
fatal so long as the acts charged were committed within the statute of limitations period,
and prior to the return date of the indictment. See United States v. Summers, 137 F.3d
597, 601 (8th Cir. 1998); United States v. Prescott, 33 F.3d 922, 923-24 (8th Cir.
1994); United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991); United States
v. Collins, 690 F.2d 670, 673 (8th Cir. 1982); United States v. Joyner, 539 F.2d 1162,
1164-65 (8th Cir. 1976); Jacobs v. United States, 395 F.2d 469, 474 (8th Cir. 1968);
see also United States v. Reece, 547 F.2d 432, 435 (8th Cir. 1977) (holding that a one-
year variance between indictment and proof at trial was harmless and did not affect
defendant's substantial rights, where defendant did not argue that he was prevented
from presenting his defense properly, unfairly taken by surprise, or exposed to double
jeopardy).

Similarly, in United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981), the Tenth
Circuit addressed a possession charge under 18 U.S.C. § 472 (possession of counterfeit
obligations). The court held that as long as the proof relating to the time of possession
fell within the statute of limitations periods, any variance between the date alleged in
the indictment and the proof at trial could be disregarded. See Nunez, 668 F.2d at
1127.

Variances between the date alleged in the indictment and the proof at trial have
been identified as material only when alibi is a defense. See, e.g., United States v.
Goodrich, 493 F.2d 390, 393-94 (9th Cir. 1974) (discussing cases that found reversible
error where a trial court instructed the jury that the offense could occur on dates other
than those charged in the indictment even though alibi was raised as a defense); see
also Nelson v. Solem, 795 F.2d 636, 637 (8th Cir. 1986) (discussing the propriety of
giving an "on or about" instruction when alibi is a defense).

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 Finally, the evidence that Stuckey possessed the firearm on December 25, 1998,
the date alleged in the indictment, was very strong. Cf. United States v. Snider, 720
F.2d 985, 990 (8th Cir. 1983) (holding that in some cases evidence of a defendant's
guilt on a possession charge is so strong that conviction should be affirmed despite a
prejudicial variance). Prior to being stopped, Stuckey was observed leaning over as if
trying to hide something in the car. After being stopped, Stuckey reached into a duffle
bag on the seat next to him to retrieve his own wallet, strongly suggesting that the
duffle bag was his. The duffle bag also contained men's, not women's, clothing. The
gun clip, also in the duffle bag, fit the handgun found underneath the driver's seat, the
same handgun Stuckey himself had purchased just a few months earlier. Although
Stuckey's girlfriend, Gray, claimed at trial that the handgun, the duffle bag, and all the
contents of the duffle bag belonged to her, Trooper Koons also testified that on the
night of the arrest Gray denied owning any "short" guns.

Time was not a material element of this crime, the evidence of possession was
within the statute of limitations period, alibi was not an issue, and the evidence in
support of the conviction was strong. We therefore conclude that any variance that
existed as a result of the evidence proffered at trial, or that was created by the district
court's supplemental instruction, did not materially prejudice the appellant. We affirm
the conviction.

II. The Sentence

The next issue is whether Stuckey's four prior drug convictions for violating
Article 112a of the Uniform Code of Military Justice, 10 U.S.C. § 912a, constitute
"serious drug offenses" under 18 U.S.C. § 924(e).6 We review this matter of statutory

6
Section 924(e) provides, in pertinent part, as follows:

(e)(1) In the case of a person who violates section 922(g) . . . and has

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interpretation de novo. See United States v. Williams, 136 F.3d 547, 550 (8th Cir.
1998).

The district court enhanced Stuckey's sentence under the armed career criminal
provisions after concluding that his four prior military drug conviction were "serious
drug offenses." However, Congress did not include a reference to military law within
§ 924(e)(2)(A)'s definition of "serious drug offense." Subparagraph (e)(2)(A)(i) refers
to three specific federal acts — the Controlled Substance Act, the Controlled
Substances Import and Export Act, and the Maritime Drug Law Enforcement Act —

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, such person shall be . . . imprisoned
not less than fifteen years . . . .

(2) As used in this subsection -

(A) the term "serious drug offense" means -

(i) an offense under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug
Law Enforcement Act (46 U.S.C. App. 1901 et seq.), for
which a maximum term of imprisonment of ten years or
more is prescribed by law; or

(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or
more is prescribed by law.

18 U.S.C. § 924 (e).

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but not the Uniform Code of Military Justice. Under the plain and unambiguous
language of the statute, the district court erred in considering Stuckey's military drug
convictions for enhancement purposes.

The government cites United States v. Martinez, 122 F.3d 421 (7th Cir. 1997),
for the proposition that a military drug conviction should constitute a "serious drug
offense" for enhancement purposes. The issues addressed in Martinez were (1)
whether the reference to convictions in "any court" at paragraph (e)(1) of the statute
included convictions in military court, and (2) whether a military conviction for
housebreaking constituted a "violent felony" under subparagraph (e)(2)(B) of the
statute. See Martinez, 122 F.3d at 423-24. The Seventh Circuit held that military court
convictions could be used as predicate offenses for enhancement purposes, because the
statute's broad reference to "any court" included military courts. The Seventh Circuit
also held that a "housebreaking" offense under military law fit the generic definition for
burglary, and thus constituted a "violent felony" under subparagraph (e)(2)(B) of the
statute. See id.

Relying on Martinez, the government argues it is absurd that military convictions
count as predicate offenses under paragraph (e)(1), but that a military drug offense can
never constitute a "serious drug offense" under subparagraph (e)(2)(A). The
government also suggests it is absurd that certain military convictions count as "violent
felonies" under subparagraph (e)(2)(B), but that a military drug offense can never
constitute a "serious drug offense" under subparagraph (e)(2)(A). The government
urges us not to give the statute a "literal" interpretation, and to ignore the fact that the
statute's definition of "serious drug offense" does not refer to the Uniform Code of
Military Justice.

We are unpersuaded by that argument, and cannot ignore our obligation to read
the statute literally. Martinez did not address what offenses may constitute "serious
drug offenses" under subparagraph (e)(2)(A). Furthermore, for a conviction to count

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as a predicate offense under paragraph (e)(1), it must be both a conviction by "any
court" referred to therein and either a "serious drug offense" under (e)(2)(A) or a
"violent felony" under (e)(2)(B). Thus, the mere fact that we are dealing with military
drug convictions in this case only gets the government half-way home; we must still
determine whether or not the convictions are "serious drug offenses" under (e)(2)(A).
Finally, we find no absurdity in the fact that Congress defined "violent felony" in a
manner that allowed the inclusion of military convictions, while defining "serious drug
offense" in a manner that did not. Any claimed inconsistencies in the statute should be
the subject of legislative, not judicial, action.

Congress defined two general types of predicate offenses that would trigger the
enhancement provisions of § 924(e): serious drug offenses and violent felonies. But
Congress adopted different structural frameworks for defining those predicate offenses.

The term "violent felony" is initially defined as "any crime punishable by
imprisonment for a term exceeding one year." 18 U.S.C. § 924(e)(2)(B). The statute
then limits that broad definition to two categories: (1) those crimes that have "as an
element the use, attempted use, or threatened use of physical force against the person
of another"; and (2) those crimes that are "burglary, arson, or extortion, involve[] use
of explosives, or otherwise involve[] conduct that presents a serious potential risk of
physical injury to another." Id. at (e)(2)(B)(i) & (ii). This has been referred to as a
"categorical approach" to the definition of "violent felony." See United States v.
Taylor, 495 U.S. 575, 588 (1990).

Instead of using a "categorical approach" to define "serious drug offense,"
Congress used what we will refer to as a "listing approach." Congress did not initially
define "serious drug offense" in a broad manner, as it did with "violent felony."
Instead, from the outset, Congress defined the term more precisely by specifically
listing the federal provisions under which a serious drug offense might fall, see 18

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U.S.C. § 924(e)(2)(A)(i), and then added to the list certain offenses under State law.
See id. at § 924(e)(2)(A)(ii). The Uniform Code of Military Justice, 10 U.S.C. §§ 801-
946, is conspicuously absent from the specifically enumerated statutes.

Under these circumstances, Congressional intent to exclude from the
enhancement provisions any drug offenses under the Uniform Code of Military Justice
is inferred. Under the principle of inclusio unius est exclusio alterius, the fact that
Congress listed certain statutes is an indication that it intended to exclude unlisted
statutes. See United States v. Darden, 70 F.3d 1507, 1524-25 (8th Cir. 1995) (holding
that where Congress specifically listed a number of drug-related offenses that constitute
predicate acts for purpose of the RICO statute, Congress meant that offenses not
specifically listed would not constitute predicate acts).

Congress knows how to use more inclusive language for sentence enhancement
purposes when it so chooses. For example, prior to amendment in 1994, two sentence
enhancement provisions for repeat drug offenders, 21 U.S.C. §§ 960(b)(2) and 962(b),
broadly included all drug-related felony under any federal, state, or foreign law as a
prior offense for enhancement purposes.

Section 960(b)(2), as then written, provided:

If any person commits such a violation after one or more prior convictions
for an offense punishable under this paragraph, or for a felony under any
other provision of this subchapter or subchapter II of this chapter or other
law of a State, the United States, or a foreign country relating to narcotic
drugs . . . such person shall be sentenced to a term of imprisonment of not
less than 10 years and not more than life imprisonment.

21 U.S.C. §§ 960(b)(2) (1988), amended by Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, §§ 90105(b), 108 Stat. 1796, 1987-88
(1994) (recodified at 21 U.S.C. §§ 960(b)(2) (1994)) (emphasis added).

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 Likewise, section 962, as then written, provided:

(a) Any persons convicted of any offense under this subchapter is, if the
offense is a second or subsequent offense, punishable by a term of
imprisonment twice that other authorized . . .

(b) For purposes of this section, a person shall be considered convicted
of a second or subsequent offense if, prior to commission of such offense,
one or more prior convictions of him for a felony under any provision of
this subchapter or subchapter I of this chapter or other law of a State, the
United States, or a foreign country relating to narcotic drugs.

21 U.S.C. §§ 962(b) (1988), amended by Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, §§ 90105(b), 108 Stat. 1796, 1988 (1994)
(recodified at 21 U.S.C. §§ 962(b) (1994)) (emphasis added).

A military drug conviction would fall under that broader definition, because the
Uniform Code of Military Justice is an "other law of . . . the United States." However,
military drug convictions are not included within the more precise definition used by
Congress at § 924(e)(2)(A)(i) & (ii).

In United States v. Tremble, 933 F.2d 925 (11th Cir. 1991), the Eleventh Circuit
addressed the fact that the prior versions of 21 U.S.C. §§ 960 and 962 used more-
encompassing language than the statute at issue here, specifically referring to §
924(e)(2)(A)(ii) to illustrate that Congress knew how to use more precise, limiting
language when it wanted:

[T]he existence of these other sentence-enhancement provisions [18
U.S.C. § 924(e)(2)(A)(i) & (ii) and U.S.S.G. § 4B1.2] requiring more
than simple possession suggests that at the time Congress enacted
sections 960(b)(2) and 962(b), that legislative body knew how to limit the

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 types of prior convictions available as predicates for sentence
enhancement by using more precise definitions.

Tremble, 933 F.2d at 929-30 (emphasis added).

Congress may have had good reason for not including military drug convictions
on § 924(e)'s "serious drug offense" list. The maximum penalty a soldier might receive
for a drug offense in a general court martial is disproportionate to the maximum penalty
a civilian might receive for the same conduct. For example, possession of marijuana
with intent to distribute, in any amount (no matter how small) is subject to fifteen years
confinement in a general court martial. See Punitive Articles ¶ 37(e)(2)(A), Manual
for Courts-Martial United States 1984 (1994 ed.). In federal civilian cases, however,
possession of marijuana with intent to distribute, in an amount up to 50 kilograms, is
only subject to a maximum term of five years imprisonment. See 21 U.S.C. §
841(b)(1)(D).

Congress intended that only "serious drug offenses" (those involving drug
quantities large enough to trigger a maximum sentence of ten years or more) would be
used for enhancement purposes under § 924(e). Military law is inconsistent with that
intent, since military charges involving small amounts of drugs can still be treated very
seriously.7

7
For example, Stuckey's court martial involved relatively small amounts of
marijuana (4.52 grams, 66.24 grams, and 3.25 grams). Even if a charge under the
Controlled Substances Act involved that total amount (74.01grams), it would not
trigger § 924(e)'s enhancement provisions; indeed, it would take in excess of 675 times
as much marijuana to subject someone to a sentence greater than ten years.

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 The district court erred by using Stuckey's military drug convictions for
enhancement purposes.8 Therefore, we affirm the conviction, but remand for
resentencing consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

8
Having concluded that the language of the statute is plain and unambiguous, we
need not consider whether the rule of lenity would also require the sentence to be
reversed.

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