United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 1997 Decided January 16, 1998
No. 97-3009
United States of America,
Appellee
v.
Jimmie Lee Kennedy, a/k/a James Kornegay,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00198-01)
Neal Goldfarb, appointed by the court, argued the cause
and filed the briefs for appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee, with whom Mary Lou Leary, U.S. Attor-
ney, and John R. Fisher, Assistant U.S. Attorney, were on
the brief.
Before: Edwards, Chief Judge, Henderson and Rogers,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Appellant Jimmie Lee Kennedy
appeals from his conviction by a jury of robbery and weapons
offenses on the grounds that the district court erred in
imposing five life sentences. He contends that the robbery
convictions under the Hobbs Act could not constitute the
basis for life imprisonment, that the jury was incorrectly
instructed as to the firearm possession count, that the gov-
ernment failed to comply with the statutory requirement that
he be served prior to trial with a copy of the information filed
in court that the government would seek a term of life
imprisonment, and that his sentence for violating the felon-in-
possession law was incorrectly assessed in light of the life
sentences he received for one of the robberies. We conclude
that the Hobbs Act contention is unpersuasive, and hold that
the instructional error was harmless and that the district
court did not clearly err in ruling that the government had
met its burden to show service of the information, albeit just
barely. However, we agree with appellant's contention re-
garding his sentence for being a felon in possession of a
firearm and, accordingly, remand that count to the district
court for resentencing; in all other respects we affirm the
judgment of conviction.
I.
Appellant and a man named Harrington robbed a Roy
Rogers restaurant at 6514 Georgia Avenue, N.W., in Wash-
ington, D.C., on the evening of May 17, 1995, and again on the
morning of June 25, 1995. United States v. Harrington, 108
F.3d 1460, 1463-64 (D.C. Cir. 1997). On both occasions
appellant produced a handgun and ordered store employees
to give him the money from the restaurant safe. During the
second robbery, two uniformed police officers happened to be
waiting in a marked Metropolitan Police Department car to
place an order at the restaurant's drive-through window.
The officers apprehended appellant after he left the restau-
rant, but not before he drew his gun and fired several shots
at them, slightly wounding one officer. Appellant also point-
ed his gun at another police officer who arrived on the scene
to arrest him.
The government indicted appellant for two violations of the
Hobbs Act, 18 U.S.C. s 1951, two counts of using a firearm to
commit a crime of violence, 18 U.S.C. s 924(c), and one count
of possession of a firearm by a convicted felon, 18 U.S.C.
s 922(g). He was also charged with two counts of assault on
a police officer pursuant to D.C. Code 22-505(a) and (b). A
jury found him guilty as charged and the district court
sentenced him to five concurrent life terms of imprisonment
for the federal charges, and 20 months to five years imprison-
ment on the assault charges.
II.
Individuals who use or carry a firearm "during and in
relation to any crime of violence" must be sentenced to a five
year prison term in addition to any sentence warranted by
their conviction for the underlying crime. 18 U.S.C.
s 924(c)(1). The term "crime of violence" is defined as a
felony that
(A) has as an element the use, attempted use, or threat-
ened use of physical force against the person or property
of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.
18 U.S.C. s 924(c)(3). Additionally, the federal three-strikes
law provides that individuals who have been convicted of two
prior serious violent felonies "shall be sentenced to life im-
prisonment." 1 18 U.S.C. s 3559(c)(1). Under the statute,
the term "serious violent felony" means--
__________
1 Appellant had been convicted of armed robbery and assault
with a deadly weapon in 1970 and of armed bank robbery and
robbery in 1981.
(i) a Federal or State offense, by whatever designation
and wherever committed, consisting of ... robbery (as
described in section 2111, 2113, or 2118); ... extortion;
... firearms use; ... and
(ii) any other offense punishable by a maximum term
of imprisonment of 10 years or more that has as an
element the use, attempted use, or threatened use of
physical force against the person of another or that, by
its nature, involves a substantial risk that physical force
against the person of another may be used in the course
of committing the offense.
Id. s 3559(c)(2)(F).2
A "crime of violence" and a "serious violent felony" are
ordinarily designated as such by looking to the statutory
definition of the crime, rather than the evidence presented to
prove it. See, e.g., United States v. Romero, 122 F.3d 1334,
1342-43 (10th Cir. 1997); United States v. Amparo, 68 F.3d
1222, 1225-26 (9th Cir. 1995). Although appellant's armed
robberies contained all the indicia of violent acts, he correctly
observes that what he did is not at issue. Instead, the
question is whether the crime with which he was charged
constituted a serious violent felony or a crime of violence. As
the Supreme Court explained in Taylor v. United States, 495
U.S. 575, 601 (1990), "Congress generally took a categorical
approach to predicate offenses" because "the practical diffi-
culties and potential unfairness of a factual approach are
daunting." Id. Appellant contends that his s 924(c) and
third-strike conviction must be vacated because the Hobbs
__________
2 The analyses of appellant's contentions under s 924(c) and
s 3559(c) do not differ in any significant respect. Appellant did not
raise his three-strikes claim in the district court. Accordingly, the
error made by the district court on that issue would have to be
"obvious" to entitle him to relief. United States v. Saro, 24 F.3d
283, 288 (D.C. Cir. 1994). But because we conclude that the district
court made no error of any kind in sentencing appellant under
s 924(c) or the three-strikes law, the different standard of review
does not require a different analysis.
Act charges cannot constitute predicate crimes of violence or
serious violent felonies, as required by both statutes.
The Hobbs Act provides in pertinent part:
(a) Whoever in any way or degree obstructs, delays, or
affects commerce ... by robbery or extortion or at-
tempts or conspires so to do, or commits or threatens
physical violence to any person or property in further-
ance of a plan or purpose to do anything in violation of
this section shall be fined not more than $10,000 or
imprisoned not more than twenty years, or both.
(b) As used in this section--
(1) The term "robbery" means the unlawful taking or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual
or threatened force, or violence....
(2) The term "extortion" means the obtaining of proper-
ty from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or
under color of official right.
18 U.S.C. s 1951.
The Hobbs Act thus prohibits interference with interstate
commerce through either robbery or extortion. Because
extortion under color of official right need not be effected
through violence, not all crimes under the Hobbs Act need be
violent crimes. Appellant would accordingly have this court
interpret Taylor to mean that if one possible way to violate a
criminal statute could be nonviolent, all statutory violations
would be immunized from the three-strikes law and s 924(c).
Yet doing so would ignore an exception provided in Taylor
that has been interpreted by this court and others to cover
statutes that enjoin both violent and nonviolent forms of
conduct. In Taylor, the Supreme Court explained that its
"categorical approach ... may permit the sentencing court to
go beyond the mere fact of conviction" in cases where the
crime is "generic." See Taylor, 495 U.S. at 602. Because the
mere fact of conviction under the Hobbs Act does not estab-
lish whether a defendant was convicted of a violent or nonviol-
ent crime, the Hobbs Act is one of the "generic" crimes that
requires further assessment by the district court. See United
States v. Mendez, 992 F.2d 1488, 1490 (9th Cir. 1993). In the
instant case, therefore, the district court was entitled to look
at the indictment or jury instructions to determine whether
the charged crime was "by its nature" a crime of violence
pursuant to s 924(c)(3)(B) or a serious violent felony pursuant
to s 3559(c)(1)(B)(ii).3 See United States v. Palmer, 68 F.3d
52, 55-56 (2d Cir. 1994); United States v. Winter, 22 F.3d 15,
18 (1st Cir. 1994). As the Ninth Circuit has concluded where
"the indictment expressly states which of the various permu-
tations of s 1951 is the source of the conviction ... [w]e may
consider [the] indictment in determining the nature of an
offense using the categorical approach." Mendez, 992 F.2d at
1491; cf. also United States v. Elder, 88 F.3d 127, 128-29 (2d
Cir. 1996) (per curiam); United States v. Farmer, 73 F.3d
836, 842 (8th Cir. 1996).
Our conclusion comports with this court's prior application
of the Taylor exception. In United States v. Mathis, 963
F.2d 399 (D.C. Cir. 1992), this court remanded a three-strikes
case to the district court to determine whether "the indict-
ment and/or jury instructions" for a prior conviction "demon-
strate that the jury necessarily found that appellant used or
threatened to use physical force" in committing his crime.
Id. at 409. The approach adopted here and in Mathis avoids
the factual inquiry that concerned the Supreme Court in
Taylor, but permits courts to treat violent crimes as Congress
__________
3 Appellant contends that Taylor's exception should apply only
where the predicate crimes at issue are prior convictions. Thus, in
his view, the exception would only apply to the three-strikes law
and not to s 924(c). But other circuits have held that a robbery
charged as a violation of the Hobbs Act can serve as a predicate
crime of violence under s 924(c). See, e.g., Mendez, 992 F.2d at
1491; Elder, 88 F.3d at 128-29. There is no difference, for the
purpose of sentencing enhancement statutes, between predicate
crimes committed in the past or the present. Either way, appellant
was on notice that his violent conduct was both violative of the
Hobbs Act and constituted a "crime of violence" and "serious violent
felony" susceptible to an enhanced sentence.
intended they be treated. Furthermore, the exception pro-
vided to the general rule in Taylor is narrow; a district court
may only undertake this inquiry when a statute provides for
both violent and nonviolent means of violation.
The indictment charged appellant with two counts of
"Hobbs Act Robbery, in violation of Title 18, United States
Code, Sections 1951(a) and 2)." Because robbery that affects
interstate commerce is a violent felony prohibited by the
Hobbs Act, and because the indictment establishes that appel-
lant was being charged with such a crime, appellant's conten-
tion that his crimes did not constitute "crimes of violence"
and "serious violent felonies" for the purposes of the sentenc-
ing enhancement statutes fails.
III.
Section 924(c)(1) applies only to those who "use[ ] or
carr[y]" a firearm "during and in relation to any crime of
violence." 18 U.S.C. s 924(c)(1). In Bailey v. United States,
116 S.Ct. 501 (1995), the Supreme Court limited the scope of
the term "use." The Court held that s 924(c)(1) "requires
evidence sufficient to show an active employment of the
firearm by the appellant, a use that makes the firearm an
operative factor in relation to the predicate offense." Id. at
505. "Active employment", the Court specified, "certainly
includes brandishing, displaying, bartering, striking with, and
most obviously, firing or attempting to fire, a firearm." Id. at
508. The government concedes that the district court in-
structed the jury in accordance with the pre-Bailey law of
s 924(c) that conflated the terms "use" and "carry" and
defined both broadly; appellant accordingly seeks reversal of
his s 924(c) convictions.
We review the district court's instructions mindful that
errors may be harmless. See United States v. Smart, 98 F.3d
1379, 1393-94 (D.C. Cir. 1996); United States v. Price, 76
F.3d 526, 529 (3d Cir. 1996). Non-constitutional error such as
is asserted by appellant is harmless when it is highly probable
that the error did not contribute to the conviction. United
States v. Cicero, 22 F.3d 1156, 1161 (D.C. Cir. 1994).
The jury found appellant guilty of two counts of assault,
based only on his firing and pointing of his gun at police
officers. The indictment charged appellant with "assault [of]
Brian Gibson, an officer of the District of Columbia Metropol-
itan Police Department, by use of a deadly and dangerous
weapon, namely, a Colt .38 caliber revolver" and "assault [of]
Anthony Paci, an officer of the District of Columbia Metropol-
itan Police Department, by use of a deadly and dangerous
weapon, namely, a Colt .38 caliber revolver." Because appel-
lant was followed by the police from the moment he left the
Roy Rogers to the moment he fired his gun at them and was
apprehended, his conviction on the assault charges establishes
that the jury concluded that appellant carried a gun while he
robbed the Roy Rogers in violation of s 924(c). Further-
more, restaurant employees testified that appellant jumped
over the counter brandishing a gun. Given the overwhelming
evidence of appellant's guilt, we hold that the error in the
jury instruction was harmless.
IV.
The district court sentenced appellant to two concurrent
terms of life in prison for the robberies pursuant to the three-
strikes law. 18 U.S.C. s 3559(c). Under s 3559(c)(4), the
government must comply with the provision of 21 U.S.C.
s 851(a) if it wishes to invoke the three-strike law against a
defendant in a violent felony or drug case. Appellant con-
tends that the government failed to comply with the statute.
Although prior to trial the government filed with the district
court a three-strikes information that included a certificate of
service to the effect that a copy had been mailed to appel-
lant's trial counsel, counsel claimed that she had never re-
ceived it.
Section 851(a) provides that:
No person who stands convicted of an offense under this
part shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before
trial, or before entry of a plea of guilty, the United
States attorney files an information with the court (and
serves a copy of such information on the person or
counsel for the person) stating in writing the previous
convictions to be relied upon....
21 U.S.C. s 851(a)(1). Section 851(a) is a firm and strict rule
for which actual notice cannot be substituted for compliance
with the rule; nor does actual notice render failure to comply
strictly with the service requirements harmless. As this
court has explained, "Section 851 gives defendants a chance
to contest the accuracy of the government's recital of their
prior convictions." See Vanness, 85 F.3d 661, 663 & n.2 (D.C.
Cir. 1996). Furthermore, "[s]ection 851(a) ... inform[s] the
defendant that [ ]he faces severe consequences if convicted."
United States v. Kelly, 29 F.3d 1107, 1109 (7th Cir. 1994).
Put succinctly, "[a] prosecutor's compliance with s 851(a)(1) is
simply a necessary condition to a judge's imposing an en-
hanced sentence on the basis of a defendant's prior convic-
tions." Vanness, 85 F.3d at 663 n.2. Because service is a
necessary condition of compliance with the statute, "the doc-
trine of harmless error does not apply with respect to failures
to follow the statutory scheme of s 851." United States v.
Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990) (quotation
marks, citation omitted); Kelly, 29 F.3d 1109-10.
Therefore, the government had to comply with the rules
regarding service by mail when it chose that method of
notifying appellant under s 851(a). The Federal Rules of
Criminal Procedure direct that service be made in accordance
with the rules "provided in civil actions." Fed. R. Crim. P.
49(b). Rule 5(b) of the Federal Rules of Civil Procedure
provides that
[s]ervice upon the attorney or upon a party shall be made
by delivering a copy to the attorney or party or by
mailing it to the attorney or party at the attorney's or
party's last known address or, if no address is known, by
leaving it with the clerk of the court....Service by mail
is complete upon mailing.
Fed. R. Civ. P. 5(b). Under Rule 5(b), then, the government
was obligated to show only that it mailed the information to
appellant's counsel, and not that defense counsel actually
received the letter, to comply with the service requirements
set forth in s 851(a). "Service is deemed complete at the
instant the documents are placed into the hands of the United
States Post Office or a Post Office Box." 3D Moore's Federal
Practice s 5.04[2][a] (citing cases); see also 4A Wright &
Miller, Federal Practice and Procedure s 1148 (citing cases).
The evidence before the district court on the issue of
mailing consisted of the testimony of an Assistant United
States Attorney that he had either placed the information
addressed to appellant's trial counsel in the out-box in his
office or given it to his secretary with written instructions to
mail it, and that the mail was picked up twice a day from his
immediate office. Although he had no independent recollec-
tion of giving the information at issue to his secretary, the
Assistant described his normal procedure and noted the file
stamp as indicating that the original copy had in fact been
filed in the district court. Further, there was no indication
from the Assistant's secretary or otherwise that there had
been any problems with mail pick up in his office during that
period. Appellant contends that this evidence--that the pros-
ecutor either put the information in his out-box or gave it to
his secretary to mail--supports an inference that the letter
was lost as easily as it supports an inference that the letter
was mailed.
The district court found that the government had satisfied
its statutory obligations, as evidenced by the certificate of
service attached to the court-filed information and the testi-
mony of the Assistant about his usual mailing practices.4
__________
4 The Assistant also testified, and was corroborated by a second
Assistant, that the three-strikes nature of the case had been dis-
cussed with appellant's counsel. The district court had also stated
during a pretrial conference that this was "a section 3559 case" and
"a third strike case." The court accordingly found that appellant
had actual notice of the government's intentions. Because review
for harmless error review is inapplicable in evaluating the govern-
ment's compliance with s 851(a), the finding of actual knowledge of
the government's intentions is of no moment. Weaver, 905 F.2d at
1481.
Although we find no clear error in this finding, see United
States v. White, 116 F.3d 903, 911 n.2 (D.C. Cir. 1997), cf.
Clayton Brokerage Co. of St. Louis, Inc. v. Bunzel, 820 F.2d
1459, 1463 (9th Cir. 1987); General Electric Co. v. Brown
Transport Corp., 597 F. Supp. 1258, 1260 (E.D. Va. 1984), the
government's evidence is just barely sufficient to meet its
burden of proof. The mailbox rule defining permissible ser-
vice by mail cannot be converted in to an out-box rule.
Missing from the government's evidence is any testimony
regarding what the secretary might have done with the
information addressed to appellant's counsel and evidence
regarding the standard operating procedures within the Unit-
ed States Attorney's Office for the handling of out-box mail.
Somewhat similar to the point appellant makes, on this record
another factfinder might have concluded that the evidence of
mailing was in equipoise. In light of the important purposes
underlying the statutory requirement, there is good reason
for the government to avoid that possibility, and it can easily
do so by viewing its statutory obligation to encompass estab-
lishing a chain of "custody": the government must present
evidence on the role of each person who handles a document,
from the point of its creation to its entrustment to the United
States Postal Service, thereby establishing that the document
was, in fact, served on the defendant or his counsel. Then,
"as a matter of reasonable probability," the possibilities of
misplacing or failing to send the document have been elimi-
nated, and the government has met its burden of establishing
an adequate chain of service. United States v. Robinson, 447
F.2d 1215, 1220 (D.C. Cir. 1971) (en banc) (quoting Gass v.
United States, 416 F.2d 767, 770 (D.C. Cir. 1969)); see also
United States v. Stewart, 104 F.3d 1377, 1383 (D.C. Cir. 1997).
When hand-to-hand evidence cannot be produced, the govern-
ment can fill the gap by offering evidence of the usual and
normal practices at each stage. See, e.g., United States v.
Luna, 585 F.2d 1, 6 (1st Cir. 1978). Other than the Assis-
tant's testimony, the government failed to offer evidence of
this sort. However, the record indicates that the information
was actually filed in the district court with a statement of
service on appellant's trial counsel. The timely filing of this
information supports an inference of regularity as to the
other aspects of the Assistant's conduct. Thus, the district
court's finding that service by mail occurred was not clearly
erroneous. Nonetheless, government counsel will be well
advised in the future not to rely on such a weak inference to
fill evidentiary gaps, in place of more substantial evidence of
the usual practice of routing mail.
V.
Appellant was sentenced to a term of life imprisonment for
violating 18 U.S.C. s 922(g), which provides, in pertinent
part,
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 ammu-
nition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.
This "felon-in-possession" count was based on the gun found
in appellant's possession when he was apprehended after the
second robbery. Though appellant's possession of the weap-
on violated the statute, appellant contends that his life sen-
tence for the crime represented a misapplication of the Guide-
lines, and we agree.
Under the Guidelines the sentencing court is required to
"determin[e] a single offense level that encompasses all of the
counts of which the defendant is convicted." U.S.S.G. Ch. 3,
Pt. D, introductory commentary. The Guidelines also require
the sentencing court to "group" counts related to the same
acts. U.S.S.G. s 3D1.2(c). The district court appropriately
grouped appellant's second robbery of the Roy Rogers with
his felon-in-possession count, but acted in contravention to
U.S.S.G. s 5G1.2 in imposing a life sentence for robbery.
Under the Guidelines, the determination of a single offense
level for each of the grouped counts is assessed at the
sentence required by the highest offense level for any of the
counts in the group. U.S.S.G. s 3D1.3(a). All grouped
counts are then sentenced at that level. Id. The combined
adjusted offense level for the robbery count was 34, which
translated to a Guidelines range of 262-327 months. This
sentence should have been imposed on appellant for his felon-
in-possession count. But the district court did not impose the
Guidelines range for either the robbery or the felon-in-
possession count. It correctly did not impose the Guidelines
range on appellant's robbery count because that count consti-
tuted appellant's third strike, and therefore required the
imposition of a mandatory minimum life sentence. See 18
U.S.C. s 3559(c)(1). However, the court also imposed life
imprisonment on appellant for the grouped felon-in-
possession count. Yet U.S.S.G. s 5G1.2 provides that for
multiple-count sentences:
[e]xcept as otherwise required by law (see 5G1.1(a), (b)),
the sentence imposed on each ... count shall be the total
punishment as determined in accordance with Part D of
Chapter Three and Part C of this Chapter.
Under Part D of Chapter 3 and Part C of Chapter 5, the
determination of the appropriate sentence is generally made
without regard to any applicable statutory minimums or
maximums.5 The Commentary to s 5G1.2 indicates that the
term "total punishment" refers only to the punishment based
on the combined offense level, without regard to any applica-
ble mandatory sentence. "The combined length of the sen-
tences ('total punishment') is determined by the adjusted
offense level." U.S.S.G. s 5G1.1 commentary. In appellant's
case, the Guidelines range for the felon-in-possession count
__________
5 There are only two references in Part D of Chapter 3 or Part
C of Chapter 5 to statutorily mandated punishments: s 3D1.1(b)
provides that counts subject to a mandatory consecutive sentence
are excluded from the grouping rules, and s 5C1.2 provides for
downward departures from a statutory minimum under the safety
valve.
and the second Hobbs Act count was 34, or 262-327 months.
That range, and not the mandatory life imprisonment term is
the "total punishment" referred to in s 5G1.2(b). Hence, the
fact that appellant failed to object in the district court to his
life sentence on the felon-in-possession count does not fore-
close our determination that plain error has occurred. See
Saro, 24 F.3d at 286.
The ramifications of this error are reflected the opening
clause of s 5G1.2(b), which reads "[e]xcept as otherwise re-
quired by law...." A mandatory sentence exceeding the
guidelines range is a sentence "otherwise required by law."
But if mandatory minimum sentences were factored into the
determination of the "total punishment," the total punishment
would always be consistent with the punishment "required by
law." To give the opening clause meaning total punishment
must be determined in accordance with the adjusted com-
bined offense level.6
Accordingly, we affirm the judgment of conviction in all
respects except we vacate the sentence on count five and
remand the case so that the district court can impose a new
sentence on that count.
__________
6 Appellant's Commerce Clause contention is foreclosed by the
court's rejection of the same contention by Harrington, the co-
defendant, who maintained that the Hobbs Act prohibition against
"obstructing, delaying, or affecting commerce or the movement of
any article or commodity in commerce, by robbery or extortion," 18
U.S.C. s 1951(a), did not extend to the robberies of the Roy Rogers
on Georgia Avenue. See Harrington, 108 F.3d at 1464-70 (D.C.
Cir. 1997). The court concluded that "[w]ithout relying on disputed
facts or dubious or speculative rationales, the jury could securely
conclude that ... this missing [stolen] money would [be used in] a
series of interstate transactions." Id. at 1469.