United States v. Jackson

United States Court of Appeals,

Eleventh Circuit.

No. 93-9131.

UNITED STATES of America, Plaintiff-Appellee,

v.

Stanley B. JACKSON, Defendant-Appellant.

July 7, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CR-438), Julie E. Carnes, Judge.

Before EDMONDSON and CARNES, Circuit Judges, and HAND*, Senior
District Judge.

CARNES, Circuit Judge:

Stanley B. Jackson appeals his conviction and sentence for

possessing and receiving a firearm as a convicted felon in

violation of 18 U.S.C. § 922(g)(1). He contends that the

government did not prove all of the elements of that offense,

because it failed to prove the inapplicability of the exceptions

denoted in § 921(a)(20) which allow a previously convicted felon to

possess a firearm. As to his sentence, Jackson contends: that it

was error to treat prior convictions as separate for § 924(e)

enhancement purposes where those convictions, but not the crimes,

occurred on the same day; that it was error to base an upward

departure on an uncounseled conviction; and that use of the

preponderance of the evidence standard at sentencing violated his

due process rights. We reject each of Jackson's contentions.

I. BACKGROUND

*
Honorable W.B. Hand, Senior U.S. District Judge for the
Southern District of Alabama, sitting by designation.
 In 1990, Jackson pawned at a Georgia pawn shop a .38 caliber

revolver that had been manufactured in another state. In January

of 1991, he returned to the shop and redeemed the revolver. In

order to redeem it, Jackson signed a Bureau of Alcohol, Tobacco and

Firearms form 4473, which asked whether he had ever been convicted

of a crime punishable by imprisonment for a term exceeding one

year. That question on the form contained a "note," which stated:

A "yes" answer is necessary if the judge could have given a
sentence of more than one year. A "yes" answer is not
required if you have been pardoned for the crime or the
conviction has been expunged or set aside, or you have had
your civil rights restored and, under the law where the
conviction occurred, you are not prohibited from receiving or
possessing any firearm.

Notwithstanding the fact that in 1972 he had been convicted in

Texas of felony assault, a crime subject to a sentence of more than

one year, Jackson answered the question "no."

As a result of his actions, a three-count indictment was

returned charging: 1) that Jackson was a convicted felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1); 2) that he made a false and fictitious statement when

acquiring a firearm from a federally licensed firearms dealer in

violation of 18 U.S.C. § 922(a)(6); and 3) that he was a felon in

receipt of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1). At his trial, the government introduced a certified

copy of a January 15, 1972,1 Texas felony assault conviction from
the case of Texas v. Jackson. The government also presented expert

testimony that Stanley Jackson's fingerprints matched those on the

1
The Pre-Sentence Investigation Report and Jackson state
that the date of the conviction was January 18, 1973. This
discrepancy, however, does not affect the issues on appeal.
pawn shop receipt, the 4473 form, and the Texas conviction. The

jury convicted Jackson of all three counts, but the district court

granted his motion for judgment of acquittal as to the second

count.

At the time of his conviction in this case, Jackson had five

prior violent felony convictions, and as a result he was treated as

an armed career criminal and given an enhanced sentence pursuant to

18 U.S.C. § 924(e)(1). In addition, at the sentence hearing, the

government moved for an upward departure from Jackson's original

criminal history category pursuant to § 4A1.3 of the United States

Sentencing Guidelines, which provides for an enhanced sentence when

a defendant's criminal history category does not sufficiently

reflect the serious nature of his past conduct or his likelihood of

committing future crimes. United States Sentencing Guidelines §

4A1.3 (Nov. 1992). The government presented evidence, including

one uncounseled assault conviction, demonstrating that Jackson

physically abused three ex-wives and that on July 17, 1992, he

attacked with acid his former girlfriend, Clarissa Webb, and her

three children.

Webb testified at the sentence hearing that after Jackson had

lived with her for three to four months, she had asked him to move

out. After he moved out, Jackson began to threaten Webb. On July

16, 1992, Webb told him that she wanted to be his friend, but that

their relationship "couldn't go anywhere." However, Jackson said

that he wanted to have sex with her and refused to leave;

frightened, Webb "let him do what he wanted to do, and then he

left." The next day, as Webb prepared to go to church, Jackson
called to offer her some money and inquired about what time she

would return home. She refused the money. When she returned home

that evening with her children, a man was there holding a steaming

bowl-shaped object. Webb turned to look at one of her children and

then felt "hot stuff" on her body and heard her children screaming.

The liquid burned Webb and her children. An analysis of the

family's clothing revealed that the liquid was a mixture of

sulfuric acid and sodium hydroxide (lye). Webb identified the

attacker as Jackson.2

Faced with this evidence, the district court upwardly departed

from Jackson's original criminal history category of IV,

explaining:

I have rarely seen pure unadulterated evil, and I think
I have seen that today. To do what Mr. Jackson did to this
woman and these three children is one of the meanest,
cruelest, most depraved acts I am aware of. And I can't
fathom what kind of person would do that. But suffice it to
say that the court feels that that kind of person is a great
danger to the society, to this society, and that the court
finds Mr. Jackson is guilty of that incident and that that
justifies a departure to a category six.

The district court sentenced Jackson to 293 months of incarceration

and to three years of supervised release for the two counts for

which he was convicted, and it ordered him to pay a $100 special

assessment.

On appeal, Jackson challenges both his conviction and his

sentence. He contends that his conviction as a convicted felon in

possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) is

invalid because the government failed to prove that, under Texas

2
Webb could not see the attacker's face, and at first, she
apparently did not positively identify Jackson. The district
court credited her ultimate identification of him.
law, he was not entitled to possess a firearm. Jackson also

contends that the district court erred by enhancing his sentence

pursuant to § 924(e)(1) because he was not an armed career criminal

within the meaning of that provision. It was also error, he

contends, for the district court to further enhance his sentence

pursuant to U.S.S.G. § 4A1.3, both because that enhancement was

based upon an uncounseled conviction, and also because it was based

upon another factual predicate to which the district court applied

the preponderance of the evidence standard. We reject each of

Jackson's contentions.

II. DISCUSSION

A. THE BURDEN OF PROOF RELATING TO THE § 921(a)(20) EXCEPTIONS

Felons are generally prohibited from possessing firearms by

18 U.S.C. § 922(g)(1). Jackson's conviction under that statutory

provision for being a felon who received and possessed a firearm

was based upon his 1972 Texas conviction for felony assault. He

contends that his § 922(g)(1) conviction is due to be reversed

because the government failed to prove that Texas law barred him

from possessing a handgun. More specifically, he claims that the

government failed to prove that his Texas felony assault conviction

had not been expunged, pardoned, or set aside or his civil rights

restored so that he could lawfully possess a firearm under Texas

law.

Section 922(g)(1) provides:

It shall be unlawful for any person—(1) who has been convicted
in any court of, a crime punishable by imprisonment for a term
exceeding one year; ... to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate
 or foreign commerce.

18 U.S.C.A. § 922(g)(1) (West Supp.1994) (emphasis added). The

statutory phrase "crime punishable by imprisonment for a term

exceeding one year" is defined as follows:

What constitutes a conviction of such a crime shall be
determined in accordance with the law of the jurisdiction in
which the proceedings were held. 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.

18 U.S.C.A. § 921(a)(20) (West Supp.1994) (emphasis added). This

definitional subsection was added in 1986.

Jackson contends that § 921(a)(20), and especially the

underscored language, adds new elements that the government must

affirmatively prove—the government must prove that the prior felony

conviction used as the predicate for a § 922(g)(1) charge has not

been expunged, set aside, or pardoned, and that the defendant has

not otherwise had his civil rights restored so that he may possess

firearms. In other words, it is Jackson's position that the

government must prove a negative and affirmatively rule out the

existence of what we will refer to collectively as the "expungement

exception."

While we have not explicitly addressed this precise issue

before, in United States v. Laroche, 723 F.2d 1541 (11th Cir.),

cert. denied, 467 U.S. 1245, 104 S.Ct. 3521, 82 L.Ed.2d 829 (1984),

we decided an issue that is closely analogous. The appellant in

Laroche had been convicted under the predecessor statute to §

922(g)(1) for being a felon in possession of a firearm. That
statute, like the current statute, contained an exception in §§

921(a)(3) and (a)(16) which provided that, for purposes of the

prohibition against felons possessing firearms, the term "firearm"

does "not include an antique firearm." The appellant argued that

the government had, and had failed to carry, the burden of proving

that the antique firearm exception did not apply in that case.

This Court rejected that argument, reasoning that the firearm

exception was an affirmative defense, and "[w]here affirmative

defenses are created through statutory exceptions, the ultimate

burden of persuasion remains with the prosecution, but the

defendant has the burden of going forward with sufficient evidence

to raise the exception as an issue." Id. at 1543. Because the

appellant in Laroche had presented no evidence to establish that

the firearm in question was an antique within the meaning of the

statutory exception, the Court held that the government was under

no obligation to disprove the existence of that exception. Id.

Our decision in United States v. Owens, 15 F.3d 995 (11th

Cir.1994), is consistent with the reasoning and result in Laroche,

and thus it is also inconsistent with Jackson's contention. Owens

involved the very statutory provision, § 922(g)(1), and expungement

exception, § 921(a)(20), at issue in this case. Owens, 15 F.3d at

997. The appellant argued that the government had failed to prove

his guilt because under Florida law the civil rights of a felon

were automatically restored after he had served the maximum term of

the sentence imposed, and the record indicated appellant had. This

Court rejected the state law predicate of that argument, and held

that the restoration of civil rights was not automatic under those
circumstances in Florida. Id. at 997-98. We then concluded that

"in view of Owens's failure to provide this court with any evidence

that such a restoration of rights has already occurred, Owens's

challenge to his conviction on this basis must fail." Id. Thus,

a necessary premise of our Owens decision is that the defendant,

and not the government, bears the burden—at least the burden of

going forward with evidence—concerning the expungement exception.

The explicit holding in Laroche and the implicit holding in

Owens make good sense. As the Tenth Circuit has explained:

As a practical matter, requiring the government to negate
the possibility, in every § 922(g)(1) case, that each
defendant's prior convictions had been expunged or set aside,
that a pardon had been granted, or that civil rights had been
restored, would impose an onerous burden. A defendant
ordinarily will be much better able to raise the issue of
whether his prior convictions have been expunged or set aside,
whether a pardon has been granted, or whether civil rights
have been restored.

United States v. Flower, 29 F.3d 530, 535 (10th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 939, 130 L.Ed.2d 884 (1995). We

have used similar reasoning in concluding that a defendant has the

burden on any question about the validity of the prior convictions

used to enhance his sentence under 18 U.S.C. § 924(e):

[U]nder § 924(e), the burden is properly placed on the
defendant raising the challenge to show the constitutional
invalidity of the prior convictions. Any given conviction
might suffer any of a myriad of constitutional defects. It
would approach the absurd to require the government to
undertake to prove guilt all over again in every predicate
conviction.... Instead, the government's burden is properly
met when it introduces evidence that there are at least three
prior violent felony convictions. The defendant must then
point out any defects in a particular prior conviction.

See United States v. Ruo, 943 F.2d 1274, 1276 (11th Cir.1991). We

analogized this burden to that placed on a defendant who must prove

that a prior conviction used to compute his criminal history score
under the United States Sentencing Guidelines was

unconstitutionally obtained. Id. at n. 4; see also Custis v.

United States, --- U.S. ----, 114 S.Ct. 1732, 128 L.Ed.2d 517

(1994) (disallowing collateral attacks on validity of predicate

convictions used for § 924(e), except on grounds of lack of

counsel).

Jackson's reliance upon United States v. Essick, 935 F.2d 28

(4th Cir.1991), is misplaced. In that case, the predicate

conviction for the § 922(g)(1) violation was from North Carolina,

where a felon's civil rights are automatically restored upon his

unconditional discharge as an inmate, probationer, or parolee. Id.

at 30. Jackson's predicate conviction is from Texas, which does

not automatically restore a felon's civil rights. See United

States v. Thomas, 991 F.2d 206, 214 (5th Cir.) ("Texas neither

actively nor passively restores all or essentially all of the civil

rights of criminals ... upon release from jail.... For purposes of

the instant inquiry, then, Texas ... fails to meet muster under any

of the approaches of the several circuits that have addressed the

concept of restoration of civil rights as contemplated in §

921(a)(20)." (footnotes omitted)), cert. denied, --- U.S. ----, 114

S.Ct. 607, 126 L.Ed.2d 572 (1993). To the extent that the Fourth

Circuit's Essick reasoning could be extended beyond its facts, we

decline to do so. We are more persuaded by the reasoning of the

Tenth Circuit in Flower and of this circuit in Ruo, and we are

strongly guided by our decisions in Laroche and Owens.

The indictment put Jackson on notice that the 1972 Texas

felony assault conviction would be used as the prior conviction
element of the § 922(g)(1) charge against him. He did not proffer

any evidence to bring that conviction within the expungement

exception of § 921(a)(20). Accordingly, the government had no

obligation to prove that that exception was inapplicable.3

B. JACKSON'S SENTENCE ENHANCEMENT AS AN ARMED CAREER CRIMINAL
PURSUANT TO § 924(e)

Having determined that Jackson was properly convicted under

18 U.S.C. § 922(g)(1) as a felon in possession of a firearm, we now

review his contentions that the district court erroneously enhanced

his sentence. Jackson first challenges the district court's

decision to treat him as an armed career criminal for sentencing

purposes. An armed career criminal is "[a] defendant who is

subject to an enhanced sentence under the provisions of 18 U.S.C.

§ 924(e)." U.S.S.G. § 4B1.4. Section 924(e)(1) provides:

In the case of a person who violates section 922(g) of
this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined not more than $25,000 and imprisoned not less than
fifteen years, and, notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).

18 U.S.C.A. § 924(e)(1) (West Supp.1995) (emphasis added); see

also U.S.S.G. § 4B1.4, comment. (n. 1) ("Under 18 U.S.C. §

924(e)(1), a defendant is subject to an enhanced sentence if the

instant offense of conviction is a violation of 18 U.S.C. § 922(g)

and the defendant has at least three prior convictions for a

3
Jackson's argument that under the Texas Penal Code even a
convicted felon can possess a firearm in his own residence is
irrelevant, because he was convicted of possessing the firearm at
the pawn shop, not in his residence.
"violent felony' or "serious drug offense,' or both, committed on

occasions different from one another." (Emphasis added.)).

In finding that Jackson was an armed career criminal, the

district court relied on his prior guilty plea on one date in Texas

to five counts of robbery by assault. Those counts were based on

five separate robberies that occurred within a two-month period and

for which Jackson received concurrent sentences. Jackson contests

the characterization of these five incidents as separate

convictions because, he argues, these "five separate robbery

convictions were consolidated for sentencing purposes and

constitute a single conviction." According to Jackson, a defendant

is not subject to armed career criminal enhancement under § 924(e)

unless his prior convictions—not the crimes themselves—occurred on

three or more separate occasions. We reject Jackson's argument,

because it flies in the face of the plain language of § 924(e), the

Application Note to U.S.S.G. § 4B1.4, and binding precedent in this

circuit.

The language of the statute requires only that the prior

felonies or offenses be "committed on occasions different from one

another," not that the convictions be obtained on separate

occasions. 18 U.S.C.A. § 924(e)(1) (West Supp.1995). The

application note to the sentencing guidelines says the same thing.

U.S.S.G. § 4B1.4 comment. (n. 1). In United States v. Howard, 918

F.2d 1529 (11th Cir.1990), cert. denied, 500 U.S. 943, 111 S.Ct.

2240, 114 L.Ed.2d 482 (1991), we rejected a contention identical to

Jackson's position and held that § 924(e) "does not require

separate indictments; the final conviction under section 922(g)
must merely be preceded by three convictions for crimes that are

temporally distinct." Id. at 1538; see also Owens, 15 F.3d at 996

n. 2 & 998; United States v. Greene, 810 F.2d 999 (11th Cir.1986)

(per curiam) (rejecting defendant's argument that burglaries

charged as four counts in one indictment were not separate under

the predecessor to § 924(e), because "[t]he indictment alleged

burglaries of four separate buildings at four separate locations on

four different days in 1962." Id. at 1000.).

Jackson concedes that the five robberies for which he was

convicted were committed on five separate occasions: November 17,

1970; December 9, 1970; January 5, 1971, January 11, 1971; and

January 19, 1971. It matters not for § 924(e) purposes that the

legal consequences of Jackson's separate criminal acts were imposed

upon him on the same day. Nor does it matter that the legal

consequences were sentences to be served concurrently instead of

consecutively. See United States v. Herbert, 860 F.2d 620 (5th

Cir.1988) (treating two burglary convictions rendered in same

proceeding and yielding concurrent sentences as separate), cert.

denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 639 (1989).

C. THE USE OF JACKSON'S PRIOR UNCOUNSELED ASSAULT CONVICTION AS A
BASIS FOR AN UPWARD DEPARTURE

In departing upward from Jackson's original criminal history

category pursuant to U.S.S.G. § 4A1.1, the district court

considered a 1984 Texas assault conviction.4 That conviction

4
The probation officer used the one criminal history point
attributed to this uncounseled conviction to increase Jackson's
criminal history category from Category III to Category IV.
However, because Jackson was properly classified as an armed
career criminal, U.S.S.G. § 4B1.4(c)(3) independently required
that Jackson be placed in Category IV. Thus, the district
resulted when Jackson, without counsel, pleaded guilty to

"intentionally and knowingly causing bodily injury to Rose

Whitfield by hitting her with his fist." Jackson contends that he

did not knowingly, intelligently, and voluntarily waive his right

to an attorney before pleading guilty and for that reason it was

error for the district court to consider that conviction as a basis

for an upward departure.

Generally, we do not allow a defendant to collaterally attack

in the sentence proceeding convictions being used to enhance his

sentence. See, e.g., United States v. Spell, 44 F.3d 936, 939

(11th Cir.1995) ("[T]he practical difficulties of holding

mini-trials on a defendant's prior convictions counsel against

looking beyond the fact of conviction." (citing Taylor v. United

States, 495 U.S. 575, 599-603, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d

607 (1990))); United States v. Medlock, 12 F.3d 185, 189 (11th

Cir.) ("Our system of federalism does not envision federal

sentencing courts sitting as open-door review boards at the beck

and call of defendants who have failed to avail themselves of

well-established procedures for direct appeal or habeas

scrutiny."), cert. denied, --- U.S. ----, 115 S.Ct. 180, 130

L.Ed.2d 115 (1994). However, we have held that a defendant may

attack a conviction that is "presumptively void." See United

States v. Roman, 989 F.2d 1117, 1120 (11th Cir.1993) (en banc) (per

curiam), cert. denied, --- U.S. ----, 114 S.Ct. 2139, 128 L.Ed.2d

court's recognition of the 1984 Texas assault conviction affected
Jackson's sentence, if at all, only by contributing to the
district court's decision to depart upward under U.S.S.G. § 4A1.3
from Category IV because of Jackson's history of physically
abusing women.
868 (1994). "[W]hen a defendant, facing sentencing, sufficiently

asserts facts that show that an earlier conviction is

"presumptively void,' the Constitution requires the sentencing

court to review this earlier conviction before taking it into

account.... [T]he kinds of cases that can be included in the

"presumptively void' category are small in number and are perhaps

limited to uncounseled convictions." Id. at 1120 (footnote

omitted). However, convictions obtained after a defendant

knowingly, intelligently, and voluntarily waived his right to

counsel are not "presumptively void."

In this case, the record reflects that the probation officer

who prepared Jackson's Presentence Investigation Report relied on

a court document indicating that Jackson's waiver of counsel in

connection with the 1984 conviction was indeed knowingly,

intelligently, and voluntarily made. Although Jackson now asserts

that this waiver was neither voluntary nor knowing, he does not

contest the authenticity of that court document, he provides no

explanation for it, and he provides no substantiation for his

assertion. In Roman, we required that a defendant "sufficiently

assert[ ] facts" showing that a prior conviction was presumptively

void. Because Jackson has failed to assert sufficiently such

facts, the district court did not err in considering the 1984

conviction as a basis for an upward departure.

D. THE USE OF THE PREPONDERANCE OF THE EVIDENCE STANDARD AT
SENTENCING

Because of his acid-throwing attack on Clarissa Webb and her

children, the district court enhanced Jackson's sentence under the

guideline policy statement providing that "[i]f reliable
information indicates that the criminal history category does not

adequately reflect the seriousness of the defendant's past criminal

conduct or the likelihood that the defendant will commit other

crimes, the court may consider imposing a sentence departing from

the otherwise applicable guideline range." U.S.S.G. § 4A1.3, p.s.

At the time of sentencing, state charges were pending against

Jackson because of his attack on the Webb family, and Jackson had

pleaded not guilty to those charges. At the time of his sentence

hearing in this case, no court had found beyond a reasonable doubt

that Jackson had been the one who had attacked them. Jackson

contends that the district court used the preponderance of the

evidence standard to find that he had been the attacker, and that

use of that standard of proof, instead of the beyond a reasonable

doubt standard, violated his due process rights.

Jackson's argument fails on both the procedural facts and the

law. As to the procedural facts, the district court did

acknowledge that the preponderance of the evidence standard was

applicable, but went on to find that even the beyond a reasonable

doubt standard was satisfied. The district court judge explained

that if she were a juror evaluating the government's evidence of

the attack, she "would find that they had proven beyond a

reasonable doubt that Stanley Jackson committed this crime." Thus,

the fact is that Jackson got the benefit of the higher standard of

proof.

That higher standard is more than Jackson was entitled to,

because it is the settled law of this circuit that at sentencing,

"a federal defendant's due process rights are ... satisfied by the
preponderance of the evidence standard." United States v. Terzado-

Madruga, 897 F.2d 1099, 1125 (11th Cir.1990); see also United

States v. Nyhuis, 8 F.3d 731, 744 (11th Cir.1993), cert. denied, --

- U.S. ----, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994); United States v.

Ledesma, 979 F.2d 816, 819 (11th Cir.1992); United States v.

Cornog, 945 F.2d 1504, 1514 (11th Cir.1991); United States v.

Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990), cert. denied,

499 U.S. 938, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991); United

States v. Alston, 895 F.2d 1362, 1372-73 (11th Cir.1990); see also

U.S.S.G. § 6A1.3, comment. (backg'd) ("The Commission believes that

use of a preponderance of the evidence standard is appropriate to

meet due process requirements and policy concerns in resolving

disputes regarding application of the guidelines to the facts of

the case."). We are bound by the prior panels' resolution of the

issue and may not revisit the question. See United States v.

Evans, 910 F.2d 790, 797 (11th Cir.1990), aff'd on other grounds,

504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); United States

v. Machado, 804 F.2d 1537, 1543 (11th Cir.1986); Bonner v. City of

Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc).

III. CONCLUSION

Jackson's conviction and sentence are AFFIRMED.