UNITED STATES v PHILLIP W. BATES
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No. 95-2280
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United States, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Phillip Wilson Bates, *
*
Defendant-Appellant. *
___________
Submitted: November 14, 1995
Filed: March 5, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________
FLOYD R. GIBSON, Circuit Judge.
Phillip Bates challenges his conviction and sentence(1) for being
a felon in possession of a firearm in violation of 18 U.S.C. SS
922(g)(1) (1988). We affirm.
I. BACKGROUND
On January 1, 1994, United States Fish and Wildlife Special
Agent Darwin Huggins was making routine equipment and hunting
license checks on a boat ramp on the Cache River in Arkansas when
a boat occupied by Phillip Bates pulled up. The boat contained two
other individuals, Mike Harris and Deborah Hamilton, as well as
hunting equipment, duck decoys, dead ducks, and two shotguns, one
of which was located nearest to Bates. All three occupants were
dressed in chest waders and hunting clothes.
Special Agent Huggins, who had been on the lookout for Bates,
identified himself as a law enforcement officer and asked to make
a routine inspection of their licenses, guns, and ducks. Special
Agent Huggins asked who had killed the ducks, and Harris stated
that the ducks were his. Special Agent Huggins then asked to whom
the two firearms belonged. Harris stated that one of the guns
belonged to him. When Special Agent Huggins then asked Bates if
the second gun belonged to him, Bates admitted that it did.
Special Agent Huggins then asked to inspect their hunting
permits. Bates produced an Arkansas hunting license, two duck
stamps, a hunter education certificate, and a Cache River hunting
permit. The reverse side of Bates's hunter education certificate
bore the legend "Arkansas Outdoor Guide Services - Singles, Groups,
and Families, Phillip Bates." Bates told Special Agent Huggins
that he had been hunting, but that Hamilton had not because she did
not have a valid license or duck stamp. Special Agent Huggins then
told Bates that he needed to check their guns and asked him which
one was his. Bates picked up the gun nearest him, a Sportsman 12-
gauge pump Magnum shotgun, told Special Agent Huggins that it was
his, and handed it to Special Agent Huggins. After inspecting the
firearms, Special Agent Huggins asked to inspect their shells. In
response, Bates handed over eleven rounds of 12-gauge shotgun
shells from his belt and various pockets, all of which matched the
firearm he had handed Special Agent Huggins. Special Agent Huggins
then asked Bates to accompany him to the parking lot where he
placed Bates under arrest for being a felon in possession of a
firearm. At this point, Bates recanted his story and denied that
he had been hunting, claiming instead that his shotgun was being
used by Hamilton.
Bates was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. SS 922(g)(1),(2) tried before a
jury, and convicted. The district court found that Bates had two
prior serious drug offenses and one prior violent felony and
sentenced him to fifteen years imprisonment pursuant to 18 U.S.C.
SS 924(e)(1).(3) The district court also sentenced Bates to three
years supervised release and imposed a fine of $12,500. Bates
challenges the constitutionality of his conviction under the
Commerce Clause, the sufficiency of the evidence supporting his
conviction, and alleges that he received ineffective assistance of
trial counsel. Bates also claims that his sentence violates the
Fifth Amendment's guarantee of due process and prohibition against
double jeopardy. We address each issue seriatim.
II. DISCUSSION
A. Commerce Clause
Bates first argues that his conviction is the result of an
unconstitutional application of 18 U.S.C. SS 922(g)(1). Based on
the Supreme Court's recent decision in United States v. Lopez, 115
S. Ct. 1624 (1995), he contends that Congress lacks the power under
the Commerce Clause to criminalize the mere possession of a firearm
that has traveled in interstate commerce absent the showing of a
more substantial impact on interstate commerce. "We review federal
constitutional questions de novo." United States v. Johnson, 56
F.3d 947, 953 (8th Cir. 1995).
We believe that Bates reads Lopez too broadly. In that
decision, the Supreme Court held that the Gun-Free School Zones
Act, 18 U.S.C. SS 922(q)(1)(A) (Supp. 1993), a measure which made
it a federal crime to knowingly possess a firearm in a school zone,
exceeded Congress' power to regulate interstate commerce under the
Commerce Clause. Lopez, 115 S. Ct. at 1626. In reaching its
decision, the Court "identified three broad categories of activity
that Congress may regulate under its commerce power." Id. at 1629.
Those categories are: (1) the power to regulate the use of the
channels of interstate commerce; (2) the power to regulate and
protect the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come from
intrastate activities; and (3) the power to regulate those
activities having a substantial relation to interstate commerce.
Id. at 1629-30. In cases challenging Congress' lawmaking power
under the third category, the Court concluded that the "the proper
test requires an analysis of whether the regulated activity
'substantially affects' interstate commerce." Id. at 1630.
Categorizing the Gun-Free School Zones Act under the third
heading, the Court determined that the Act exceeded Congress'
Commerce Clause authority because it neither regulated a commercial
activity that could potentially have a substantial effect on
interstate commerce nor contained the type of express
jurisdictional element approved in United States v. Bass,
404 U.S.
336
(1971), "which would ensure, through case-by-case inquiry, that
the firearm possession in question affects interstate commerce."
Id. at 1630-31. We do not believe, however, that section 922(g)(1)
suffers from the same defect. Unlike the Gun-Free School Zones
Act, an individual case under section 922(g)(1) may fall under
either the second or the third categories identified in Lopez, 115
S. Ct. at 1629-30. United States v. Mosby, 60 F.3d 454, 455 (8th
Cir. 1995), petition for cert. filed on Dec 4, 1995 (No. 95-7053).
And unlike the Gun-Free School Zones Act, section 922(g) contains
the same type of "express jurisdictional element which might limit
its reach to a discrete set of firearm possessions that
additionally have an explicit connection with or effect on
interstate commerce" approved in Bass. Lopez, 115 S. Ct. at 1631.
Bates argues that the jury instructions, which required the
jury to find that the shotgun possessed by him had previously
traveled in interstate commerce, were insufficient to establish the
required nexus to interstate commerce required by Lopez. We have
already squarely rejected this argument in United States v.
Shelton, 66 F.3d 991 (8th Cir. 1993) (per curiam). "To satisfy the
interstate commerce element of section 922(g), it is sufficient
that there exists 'the minimal nexus that the firearm[s] have been,
at some time, in interstate commerce.'" Id. at 992 (quoting
Scarborough v. United States,
431 U.S. 563, 575
(1977)); see also
United States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam)
(Government's evidence that sawed off shotgun possessed by felon in
Missouri was manufactured in New York satisfied section 922(g)(1)'s
jurisdictional nexus), cert. denied, 116 S. Ct. 577 (1995). As
such, we find the application of section 922(g)(1) to Bates's
conduct eminently constitutional.
B. Sufficiency of the Evidence
Bates next attacks the sufficiency of the evidence underlying
his conviction. Specifically, he alleges that the Government
failed to prove that he actually possessed the firearm in question
as opposed to merely owning it. He argues alternatively that he
was the victim of entrapment. "In reviewing the sufficiency of the
evidence on appeal, the court views the evidence in the light most
favorable to the government, resolving evidentiary conflicts in
favor of the government, and accepting all reasonable inferences
drawn from the evidence that support the jury's verdict." United
States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied,
505
U.S. 1211
(1992). "The jury's verdict must be upheld if there is
an interpretation of the evidence that would allow a reasonable-
minded jury to conclude guilt beyond a reasonable doubt." Id.
We believe that there was sufficient evidence that Bates was
in possession of the firearm in question. The dead ducks, the
camouflaged netting, the decoys, the chest waders, the hunting
apparel, the shotgun shells found on his person, Bates's admitted
ownership of the shotgun, and his initial admission that he had in
fact been duck hunting all support the jury's guilty verdict.
Bates argues that the jury could have reasonably inferred from this
evidence that he was merely acting as a wilderness guide, and that
his initial admission that he had been hunting was no more than a
misguided attempt to protect his client, Deborah Hamilton, who he
claims had been hunting without a license. But this alternative
was fairly presented to and rejected by the jury. "[I]t is not our
function as a reviewing court to reverse based on a recognition of
alternate possibilities." United States v. O'Malley, 854 F.2d
1085, 1088 (8th Cir. 1988).
Bates's entrapment defense raises a question of fact, namely
"whether the government agent caused or induced the defendant to
commit a crime he was not otherwise predisposed -- i.e., willing
and ready -- to commit whenever a propitious opportunity arose."
Id. at 1088 (quotation omitted). The jury was properly instructed
on this issue and summarily rejected it as well. While its
decision could have been different, it is not our role to second-
guess the jury's factual determinations. Id. at 1088. Based on
the strong circumstantial evidence that Bates had in fact been duck
hunting with the shotgun as well as Bates's own admission, we
cannot say that the jury's rejection of Bates's entrapment defense
is unsupported by sufficient evidence.
C. Due Process
Bates claims that he was denied due process at the sentencing
phase because he received no formal notice in the indictment or
judgment that he would be sentenced under 18 U.S.C. SS 924(e)(2),
which mandates a minimum fifteen-year sentence for a defendant
convicted under section 922(g) who has three prior convictions for
a violent felony or serious drug offense. Because both the
indictment and the judgment referred to section 924(a)(2), which
provides a maximum sentence of ten years imprisonment, rather than
section 924(e)(1), Bates claims that he can constitutionally be
sentenced to no more than the ten years provided in section
924(a)(2). We review this constitutional claim de novo. Johnson,
56 F.3d at 953.
References in the indictment to sentence enhancements such as
section 924(e) are "mere surplusage" and "may be disregarded if the
remaining allegations are sufficient to charge a crime." United
States v. Washington, 992 F.2d 785, 787 (8th Cir.) (quotation
omitted), cert. denied, 114 S. Ct. 356 (1993). Although
surplusage, such language in the indictment "serves a valid and
useful purpose in that it gives notice to the defendant from the
start that the government intends to seek the enhanced sentence if
the defendant is convicted." Id. Assuming due process requires
notice to the defendant that the government intends to enhance his
sentence under a specific statutory provision, we believe that
Bates received adequate notice nonetheless. Two of the three
convictions relied upon to enhance his sentence were proven at
trial. The other was fully set out in the presentence
investigation report, leaving Bates with "ample opportunity to
investigate his earlier convictions and to challenge the
requirements of SS 924(e)(1)." United States v. Adail, 30 F.3d
1046, 1047 (8th Cir.) (per curiam), cert. denied, 115 S. Ct. 653
(1994). The absence of any prior notice could not have affected
the fairness of Bates's sentencing. Because sentencing is a
separate phase of the criminal process, notice of which offenses
the Government would be able to rely on in order to enhance Bates's
sentence became relevant only at the sentencing stage. United
States v. McMurray, 20 F.3d 831, 833-34 (8th Cir. 1994).
Furthermore, any potential notice deficiency would have been
harmless because Bates never disputed the applicability or the
existence of his three prior felonies at any point during his
sentencing.(4) Adail, 30 F.3d at 1047.
D. Double Jeopardy
Bates next contends that the district court violated the Fifth
Amendment's prohibition against double jeopardy by punishing him
twice for the same offenses. Specifically, he challenges the
constitutionality of using his prior felony convictions both to
establish his substantive offense under section 922(g)(1) and to
enhance his sentence under section 924(e)(1). We review this
constitutional challenge de novo. Johnson, 56 F.3d at 953.
The Fifth Amendment's Double Jeopardy Clause protects against
multiple prosecutions and punishments for the same offense.
Illinois v. Vitale,
447 U.S. 410, 415
(1980). Bates, however, was
neither prosecuted nor punished more than once for the same
offense. It is well-settled that the use of a defendant's prior
convictions to establish his status as a convicted felon for
purposes of section 922(g)(1) does not constitute a second
conviction and punishment for double jeopardy purposes. United
States v. Phillips, 432 F.2d 973, 975 (8th Cir. 1970) ("The prior
conviction was permitted to be proved only . . . for the purpose of
establishing [the defendant's] status as member of a class to which
the use of interstate commerce to transport firearms has been
forbidden.").
This Court has similarly rejected the idea that the use of a
defendant's prior convictions to enhance his sentence subjects him
to a second conviction or punishment for the same offenses. Id.
(citing Davis v. Bennett, 400 F.2d 279, 282 (8th Cir. 1968), cert.
denied,
395 U.S. 980
(1969)); United States v. Thomas, 895 F.2d
1198, 1201 (8th Cir. 1990) ("Habitual offender statutes do not
subject a defendant to a second conviction or punishment for prior
offenses. Rather, the repeat offender's prior convictions are
considered to be an aggravating factor that justifies imposing a
heavier sentence for his or her present offense.").
Where neither practice constitutes double punishment or
prosecution individually, we see no reason why they would offend
the Double Jeopardy Clause when used in conjunction. As the Fifth
Circuit concluded in United States v. Wallace, 889 F.2d 580, 584
(5th Cir. 1989), cert. denied,
497 U.S. 1006
(1990), "Consideration
of the same felony to convict under section 922(g) and to enhance
punishment under section 924(e)(1) is neither a double prosecution
nor a double punishment."
E. Ineffective Assistance of Counsel
Bates alleges that he received ineffective assistance of
counsel at trial because his attorney failed to object to certain
testimony. Such claims are not generally cognizable on direct
appeal unless the district court has developed a record on the
ineffectiveness issue. United States v. Jennings, 12 F.3d 836, 840
(8th Cir. 1994). Because no such record is available to us, we
decline to address this claim.
III. CONCLUSION
We are not unmindful of the apparent absurdity in sentencing
an individual to fifteen years imprisonment for the equivalent of
duck hunting. We are equally aware, however, that Congress has
tied our hands and removed a much-needed measure of judicial
discretion through its enactment of the fifteen year mandatory
minimum provision of SS 924(e)(1) of the Armed Career Criminal Act.
For the aforementioned reasons, we affirm Bates's conviction and
sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Stephen M. Reasoner, United States District
Judge for the Eastern District of Arkansas.
(2)
18 U.S.C. SS 922(g) provides that is shall be unlawful for a
convicted felon "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."
(3)
18 U.S.C. SS 924(e)(1) provides that "a person who violates
section 922(g) of this title and has three previous convictions
. . . 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 . . . ."
(4)
In a related argument, Bates contends that he should not have
been sentenced under section 924(e)(2) because the Government only
proved two of the required three felonies at trial. As previously
observed, however, Bates neither objected to nor disputed the
existence of the third felony which was fully set forth in the
presentence investigation report.