United States v. Leon Finch

BRIGHT, Senior Circuit Judge,

concurring.

I concur in the majority opinion only because the en banc court in a divided opinion in the consolidated cases, United States v. Rush, and United States v. Cloyd, 840 F.2d 574 (8th Cir.1988), determined that the amendment to 18 U.S.C. App. § 1202(a) of the Armed Career Criminal Act of 1984 constitutes a sentence enhancement provision, and does not create a separate offense of possession of a firearm by one who has three previous felony convictions. The dissent written by Circuit Judge John R. Gibson, and joined by Chief Judge Lay and Circuit Judges Heaney and Fagg, expressed the opinion that the language and structure of the ACCA creates a separate criminal offense. I would subscribe to the views of the dissenters. However, because I am bound by the determination of the en banc court, I must concur in this case, even though I believe the decision is incorrect.