United States v. Balascsak, Robert J.

GREENBERG, Circuit Judge,

dissenting.

On September 30, 1986, appellant Robert Balascsak, a convicted felon, was apprehended in possession of a shotgun. He subsequently pleaded guilty to a charge of possession of a firearm by a convicted felon in violation of the Armed Career Criminal Act (Act), 18 U.S.C. App. § 1202(a).

Section 1202(a) provides in pertinent part that a person “who has three previous convictions” for a felony burglary or robbery must receive a 15 year mandatory minimum term of imprisonment for possession of a firearm. Pursuant to this provision, the district court sentenced Balascsak to 15 years imprisonment based upon a conviction entered on May 21, 1981, for a burglary committed on November 30, 1980, and two convictions entered on February 22, 1982, for burglaries committed on the night of July 10-11, 1981. The latter burglaries were committed at two different homes in Levittown, Pennsylvania, a block apart; the first at 10:45 p.m., and the second between 11:00 p.m. and 7:00 a.m. These two crimes were charged in separate informa-tions but were prosecuted together and resulted in identical concurrent sentences. It is evident from the above history that Ba-lascsak had three previous convictions on September 30, 1986, since he had been convicted of three discrete burglaries committed at different times and places.

Nevertheless, Balascsak maintains that the convictions for the two burglaries of July 10-11, 1981, cannot be counted separately for the purposes of the “three previous convictions” language of section 1202(a), and that his sentence, grounded upon only two predicate convictions, must be vacated. The opinion announcing the judgment of the court agrees with Balasc-sak’s contention that his sentence is objectionable. It reasons that although section 1202(a) simply provides that a defendant charged thereunder must have “three previous convictions,” not only are three previous convictions required, but, as I understand its position, each conviction must precede the commission of the next crime for which conviction can be considered. Typescript at 23.

I believe that reading this extra requirement into section 1202(a) is unwarranted. In my view, the holdings of the five other courts of appeal which have considered the scope of the Act in analogous contexts should be adopted; specifically, that in enacting the statute, Congress intended that the enhanced penalty provision be applied where the convictions arise from separate criminal episodes or transactions, without regard to when the defendant is convicted of the respective predicate offenses. See United States v. Herbert, 860 F.2d 620 (5th Cir.1988); United States v. Gillies, 851 F.2d 492 (1st Cir.), cert. denied, - U.S. -, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 580 (8th Cir.), cert. denied, - U.S. -, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988); United States v. Wicks, 833 F.2d 192 (9th Cir.1987), cert. denied, - U.S. -, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988); United States v. Greene, 810 F.2d 999 (11th Cir.1986). See also United States v. Towne, 870 F.2d 880 (2d Cir.1989). Because Balascsak’s two *686convictions for the July 10-11 burglaries meet this test, I respectfully dissent from Part D of the opinion announcing the judgment of the court.1

The opinion notes that in contrast to two other enhanced penalty provisions enacted by Congress, section 1202(a) does not expressly require that the predicate convictions be committed on occasions different from one another. 18 U.S.C. § 3575(e)(1) (1982) (repealed); 21 U.S.C. § 849(e)(1) (1982) (repealed). It goes on to recount that in United States v. Petty, 798 F.2d 1157 (8th Cir.1986), vacated, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987), where the court of appeals upheld an enhanced sentence under section 1202(a) for a defendant who received six convictions for simultaneously robbing six victims in one restaurant, the Solicitor General’s response to the defendant’s petition for a writ of certiorari included a concession that the legislative history of section 1202(a) indicated that Congress did not intend the statute to apply more broadly than other federal enhanced penalty statutes. Typescript at 12-14. Its holding today, however, goes even further, interpreting section 1202(a) as having a much narrower scope than these other enhanced penalty provisions.2

It largely grounds its interpretation of section 1202(a) on legislative history, to which it turns after finding that the statute is ambiguous. It focuses first upon the language of earlier versions of what became section 1202(a). It notes that a previous version of the law provided that a person who committed an armed burglary or robbery “after having been twice convicted of a robbery or burglary” would receive the enhanced sentence, typescript at 16, and points out that under both this and a subsequent version of the law, only a person who had been convicted “of at least two offenses” before committing a third robbery or burglary could be prosecuted. Typescript at 20. It further notes that federalism concerns prompted the final version of the law, which changed the underlying substantive offense from burglary or robbery to possession of a firearm, and that “[t]he switch from two priors to three priors appears to have been intended to account for the third crime which ... would have been prosecuted in federal court.” Typescript at 22.

It concludes that because previous versions of the law required two convictions before the third robbery or burglary took place, and because the final version of the law was not intended to broaden the reach of the law but simply to alleviate federalism concerns, Balascsak’s enhanced sentence must be vacated because he could not have been so sentenced under the previous drafts of the law, as he was not twice previously convicted when he committed the burglaries on July 10-11, 1981. The difficulty with this analysis is that it hinges upon the fortuity that Balascsak committed the two Levittown burglaries after he committed the November 1980 burglary. Had Balascsak committed the identical three burglaries in reverse chronological order, the analysis would lose much of its force. As the opinion itself acknowledges, typescript at 20, under the previous versions of section 1202(a) “the required relationship between the two priors themselves is not obvious.” Nothing in the language of the previous versions of the statute upon which it relies suggests that Balascsak could not have received the enhanced penalty after committing the November 1980 burglary (had he been armed) if he had previously committed and been convicted of the two Levittown burglaries. In short, I find its reliance upon the language of prior drafts of the statute to be unpersuasive.3

The opinion announcing the judgment of the court also cites language in the title of *687the Act itself as well as the legislative history characterizing the targeted class of defendants as “career criminals,” “three time losers,” and “repeat offenders” in support of its holding that each predicate conviction under section 1202(a) must precede the commission of the crime underlying the next predicate conviction. See typescript at 17-18. However, such characterizations are as equally applicable to those who commit three crimes without any intervening convictions as to those who go through the judicial and penal systems between crimes.4

The opinion further relies upon Dr. Peter Greenwood’s testimony that in pinpointing high-rate criminals through the use of “total prior convictions,” “[t]he fact that someone is being prosecuted for multiple counts does not have anything to do with rate of offending” and that “[tjypically it has to do with one criminal episode rather than a long string of crimes.” Typescript at 17. There is nothing in this testimony to support a requirement that conviction on one offense precede commission of the next offense in order for an offender to be characterized as “high-rate”; rather, the implication is that the two convictions merely must arise out of separate criminal episodes.

Even assuming arguendo that the language of the statute is ambiguous, the legislative history of section 1202(a) does not justify its analysis of the legislative intent. I agree that certain portions of the legislative history indicate that Congress intended to penalize “revolving door” criminals who are “practically impossible to rehabilitate.” However, much of the legislative history — as the opinion announcing the judgment of the court amply demonstrates —indicates that Congress was concerned with repeat offenders regardless of whether convictions and sentences punctuated their continuing criminal endeavors. Another court of appeals likewise has recognized that the legislative history of the Act can be cited in support of both of these legislative concerns. See United States v. Herbert, 860 F.2d at 622.5

The Herbert court characterized the legislative history of the Act as “ambiguous,” as did counsel for Balascsak at oral argument. I disagree. The fact that portions of the legislative history indicate a congressional concern with persons who are not rehabilitated after being convicted on numerous occasions, while other portions indicate a concern with persons engaged in multiple criminal episodes without reference to any rehabilitative efforts, creates no ambiguity, but simply reveals that Congress was concerned with both types of recidivists, and therefore used the statutory language that it did. In any event, even assuming that there is some ambiguity in the legislative history, I think that *688an objective reading supports the position that Congress intended to incapacitate persons who have repeatedly committed the particular crimes of robbery or burglary,6 regardless of whether each predicate conviction preceded the commission of the next predicate offense. For instance, there are repeated statements in the legislative history that criminals are apprehended and convicted for fewer crimes than they actually commit. See, e.g., S.Rep. No. 585, 97th Cong., 2d Sess. 3, 21, 72 (1982); S.Rep. No. 190, 98th Cong., 1st Sess. 1, 5 (1983). This suggests that Congress’s overriding concern was with the fact that once a person has three previous convictions for the offenses specified in the Act, he or she is quite likely to be a member of that “small number of repeat offenders [who] commit a highly disproportionate amount of the violent crime plaguing America today” regardless of any intervening convictions. S.Rep. No. 585 at 20.

A recent amendment of the Armed Career Criminal Act buttresses my analysis of the legislative intent. Congress clarified the law to provide that a defendant must have three previous convictions for offenses “committed on occasions different from one another.” Anti-Drug Abuse Act of 1988, Pub.L. 100-690, § 7056, 102 Stat. 4181, 4402 (1988). This amendment, expressly characterized by Congress as a “clarification” of existing law, see id., “is entitled to substantial weight in determining the meaning of [the] earlier statute.” Barnes v. Cohen, 749 F.2d 1009, 1015 (3d Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985) (citations omitted). The amendment, like the legislative history of the Act, suggests that Congress’s concern in enacting the enhanced penalty provision at issue in this case was with those criminals involved in repeated criminal episodes, with or without intervening efforts at rehabilitation.

While I appreciate the concern that the law as passed might hypothetically be applied in circumstances which Congress did not anticipate, this is not a valid justification for rendering an interpretation contrary to the implications of both the statutory language and the legislative history. See United States v. McClinton, 815 F.2d 1242, 1245 (8th Cir.1987).7 Moreover, for the purposes of the instant case it is unnecessary to delineate the precise contours of what constitutes separate criminal episodes or transactions or offenses committed on different occasions. It is sufficient to conclude that under the facts of this case the burglaries at issue were sufficiently distinct in time and place as to satisfy the applicable standard. I would so hold.

Circuit Judges A. LEON HIGGINBOTHAM, Jr., STAPLETON, HUTCHINSON and NYGAARD, join in this dissent.

. I join as to all other portions of the opinion.

. Both 18 U.S.C. § 3575(e) and 21 U.S.C. § 849(e) provided in part that a defendant was a special offender for the purposes of those sections if the defendant had previously been convicted for two or more offenses committed "on occasions different from one another" and different from the offense being prosecuted, and had been imprisoned for one or more of the prior convictions before committing the offense being prosecuted. These statutes, then, did not require a conviction upon the first predicate offense before the commission of the second predicate offense.

.Moreover, although it emphasizes that under the prior versions of the law Balascsak would not have received an enhanced sentence following the July 10-11 burglaries, he did not receive *687an enhanced sentence after those burglaries in this case either. Rather, the enhanced sentence was imposed after Balascsak committed the separate, subsequent offense of possession of a firearm. Here, the three predicate convictions preceded the commission of the fourth offense —possession of a firearm — just as in the prior versions of the law, the two predicate convictions were to have preceded commission of the third offense — armed robbery or burglary.

. Indeed, under its position, the applicability of the enhancement provision of section 1202(a) will be even more dependent than it has previously thought to have been upon the ability of the criminal justice system to process cases so that there are convictions entered for prior offenses. Thus, the serial felon who is repeatedly arrested, but whose prosecution is delayed, will avoid the enhancement provisions. Surely a court ought not to reconstruct section 1202(a) and unnecessarily bring about such an undesirable consequence.

. In the Solicitor General’s brief in Petty, he indicated that section 1202(a) was ambiguous but that concession was in the context of the facts there involving six robberies in what was a single event. While a statute might be ambiguous in fringe applications, here it is being applied in a plainly applicable core situation. Obviously, the result I advance is in no way inconsistent with the Solicitor General’s Petty position, as he contended there that "the legislators intended that prior convictions would be based on multiple criminal episodes that were distinct in time” and that the legislative history showed that there was no attempt "to count previous convictions on multiple felony counts arising from a single criminal episode as multiple 'previous convictions.’ ” There is simply no escape from the fact that when Balascsak was arrested with the shotgun, his record included three discrete unrelated offenses committed at three different places at three different times.

. 18 U.S.C. § 924(e)(1) replaced the requirement that the three convictions be for robbery or burglary with a requirement that they be for "a violent felony or a serious drug offense.” This change, however, does nothing to alter our analysis.

. Moreover, the interpretation of the law in the opinion announcing the judgment of the court is plainly underinclusive under various hypothetical scenarios. For instance, I can hardly attribute to Congress an intent to exclude some-' one from the coverage of the Act who had engaged in a “Bonnie and Clyde” type spree over a long period of time, but had managed to evade apprehension.