UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1720
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES H. ABERNATHY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
Edward F. Grourke with whom Finan & Grourke was on brief for
appellant.
Sheldon Whitehouse, United States Attorney, for appellee.
April 30, 1996
ALDRICH, Senior Circuit Judge. James H. Abernathy,
driving a Massachusetts registered car in Providence, Rhode
Island, was stopped by two policemen, one of whom, when he
peered into defendant's vehicle, observed the butt of a .45
caliber Colt semi-automatic pistol sticking out from under
the driver's seat. Indicted as a result, defendant initially
pleaded guilty to two counts: Count I, as a convicted felon
carrying a firearm that had been in interstate commerce, in
violation of 18 U.S.C. 922(g)(1); Count II, carrying an arm
that had been in interstate commerce with an obliterated
serial number, in violation of 18 U.S.C. 922(k). Defendant
was sentenced to 110 months imprisonment followed by three
years supervised release on Count I, and to a concurrent 60
months imprisonment on Count II. Over one year later, upon
defendant's motion, the entire sentence was vacated in order
to reinstate his right to pursue a direct appeal, which had
been dismissed for want of prosecution. Thereafter, prior to
resentencing, defendant moved to withdraw his plea. The
court denied the motion and resentenced defendant to the
original terms. This appeal ensued, raising the following
points: (1) the lawfulness of the stop; (2) whether defendant
should have been allowed to withdraw his pleas on both
counts; and (3) the constitutionality of the statutes
proscribing his conduct. We affirm on (1) and (3). On (2)
we reverse and vacate the sentence with respect to Count II.
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The Arrest
The officers were in an unmarked car, in plain
clothes. Some of the evidence might support defendant's
claim that this was an unlawful investigatory stop. Ample
evidence, however, supports the district court's finding of a
justified traffic violation stop, including testimony that
defendant travelled in the wrong lane of traffic and then ran
a stop sign. No purpose would be served in discussing the
district court's careful analysis and reasonable credibility
resolutions. The fact that the officers were on an
undercover investigatory narcotics detail does not mean that
they could not lawfully make a proper traffic stop.
Withdrawal of the Plea
Withdrawal of a guilty plea prior to sentencing may
be granted for "fair and just reason." See Fed. R. Crim. P.
32(e) (1994); United States v. Cotal-Crespo, 47 F.3d 1, 3
(1st Cir.), cert. denied, U.S. , 116 S.Ct. 94, 133
L.Ed.2d 49 (1995). After sentencing, the defendant must show
a defect attending the plea that amounts to a "miscarriage of
justice," or "an omission inconsistent with the rudimentary
demands of fair procedure." United States v. Lopez-Pineda,
55 F.3d 693, 697 (1st Cir.) (internal quotations omitted),
cert. denied, U.S. 116 S.Ct. 259, 133 L.Ed.2d 183
(1995). Although the United States attaches great
significance to the category to which defendant ought to be
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assigned, whether defendant's plea was knowing and voluntary
within the meaning of Criminal Rule 11 is the most
significant factor under either standard. United States v.
Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).
With respect to Count I this is a routine case --
the court was well warranted in finding no misunderstanding
of the charge by defendant, nor was there any other flaw in
the plea proceedings. Fed. R. Crim. P. 11(a)-(f).
There is a serious question, however, with respect
to Count II. From the record, it appears that the court, as
well as counsel for both the government and the defendant,
understood that the government was not obliged to establish
actual knowledge on defendant's part that the serial number
had been obliterated at the time of his possession,1 and
communicated this misunderstanding to the defendant. We find
this failure to apprise defendant of the elements of the
charge fundamentally inconsistent with fair procedure in an
1. While, regrettably, some of our prior cases seem unclear,
cf. United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir.
1993), cert. denied, U.S. , 114 S.Ct. 696, 126 L.Ed.2d
663 (1994), United States v. Smith, 940 F.2d 710, 713 (1st
Cir. 1991), it is indisputable that actual knowledge has been
a necessary element of the crime at least since passage of
the Firearms Owners' Protection Act, Pub. L. No. 99-308,
104, 100 Stat. 456, 456 (1986), which modified the
attendant penalty provision to require knowing violation of
922(k) in order for criminal sanctions to attach. 18
U.S.C. 924(a)(1)(B). See United States v. Hooker, 997 F.2d
67, 72 (5th Cir. 1993); United States v. Haynes, 16 F.2d 29,
34 (2nd Cir. 1994). See also United States v. De Leon Ruiz,
47 F.3d 452, 454 (1st Cir. 1995); United States v. Lanoue, 71
F.3d 966, 983 (1st Cir. 1995).
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acceptance of plea proceeding. As the record contains strong
support for defendant's claim that he lacked knowledge of the
obliteration -- at the very least it does not establish
otherwise -- we cannot say the error was harmless. Compare
United States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995). See
Fed. R. Crim. P. 11(h). It follows that defendant has a
right to withdraw his plea on Count II.
Defendant's tangential suggestion that the court's
imposition of a two-level enhancement to his offense level
based on the obliteration also requires reversal ignores the
fact that this enhancement explicitly applies "whether or not
the defendant knew or had reason to believe that the firearm
. . . had an altered or obliterated serial number." USSG
2K2.1(b)(4), comment. (n.19). See United States v. Schnell,
982 F.2d 216, 220-21 (7th Cir. 1992); United States v.
Williams, 49 F.3d 92, 93 (2nd Cir. 1995).
Having in mind that the 60-month sentence imposed
on Count II was to be served concurrently with the 110 month
sentence on Count I, the government has suggested that there
may be possible advantages to defendant in not withdrawing
the plea. This question is for defendant to determine when
returned to the district court, and we express no opinion.
Constitutionality of the Statutes
We have recently considered and rejected similar
arguments to those raised by defendant challenging the power
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of Congress under the Commerce Clause to enact the statutes
underlying the charges against him, in light of the Supreme
Court's ruling in United States v. Lopez, U.S. , 115
S.Ct. 1624, 131 L.Ed.2d 626 (1995). See United States v.
Bennett, 75 F.3d 40, 49 (1st Cir. 1996) (challenge to
constitutionality of 18 U.S.C. 922(g)(1) is "hopeless");
United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir.
1995) (Lopez does not invalidate 18 U.S.C 922(k)).
Affirmed in part, reversed in part, and remanded.
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