Case No. 13-5714 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD YOUNG, Defendant-Appellant. On appeal from the United States District Court for the Eastern District of Tennessee BRIEF OF THE UNITED STATES William C. Killian United States Attorney Eastern District of Tennessee Luke A. McLaurin Christopher D. Poole Assistant United States Attorney Assistant United States Attorney 800 Market Street, Suite 211 1110 Market Street, Suite 515 Knoxville, Tennessee 37902 Chattanooga, Tennessee 37402 865-545-4167 423-752-5140 Case: 13-5714 Document: 006111894644 Filed: 11/27/2013 Page: 1
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IN THE UNITED STATES COURT OF APPEALS€¦ · Luke A. McLaurin Christopher D. Poole . Assistant United States Attorney Assistant United States Attorney . 800 Market Street, Suite
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Case No. 13-5714
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD YOUNG,
Defendant-Appellant.
On appeal from the United States District Court for the Eastern District of Tennessee
BRIEF OF THE UNITED STATES
William C. Killian United States Attorney Eastern District of Tennessee
Luke A. McLaurin Christopher D. Poole Assistant United States Attorney Assistant United States Attorney 800 Market Street, Suite 211 1110 Market Street, Suite 515 Knoxville, Tennessee 37902 Chattanooga, Tennessee 37402 865-545-4167 423-752-5140
I. Applying the ACCA’s mandatory penalties for Defendant’s knowing possession of ammunition is consistent with the Due Process Clause of the Fifth Amendment.
A. Section 922(g)(1) is not a strict-liability, public welfare offense.
B. Section 922(g)(1)’s prohibition of the possession of ammunition by felons is not so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct.
II. Applying the ACCA’s mandatory penalties for Defendant’s knowing possession of ammunition is consistent with the Eighth Amendment.
A. Defendant’s fifteen-year sentence is not grossly disproportionate to his offense of knowingly possessing ammunition after having previously been convicted of at least three violent felonies.
B. Defendant was properly classified as an armed career criminal under the ACCA.
Judgment, PageID# 98-103.) This timely appeal followed.1 (R. 39, Notice of
Appeal, PageID# 104.)
SUMMARY OF ARGUMENT
The district court did not violate the Fifth Amendment’s due process
guarantee by imposing the fifteen-year minimum sentence that Congress has
mandated for Defendant’s knowing possession of ammunition after having been
previously convicted of at least three violent felonies. Federal law unambiguously
prohibits felons from knowingly possessing ammunition. That prohibition is
neither a strict-liability offense nor is it so obscure that Defendant should not have
reasonably been aware of it. Defendant’s alleged unawareness of that prohibition
is no excuse for his failure to heed it.
The district court also properly rejected Defendant’s Eighth Amendment
challenge to his ACCA sentence. This Court, as well as every other federal court
of appeals, has consistently found that the ACCA’s mandatory penalties are not
cruel, unusual, or grossly disproportionate. Defendant’s offense is not less serious
that the offenses at issue in prior cases. Moreover, Defendant is precisely the kind
of felon for whom the ACCA was designed. Applying the ACCA is his case was
both appropriate and constitutional.
1 The National Association of Criminal Defense Lawyers has requested the Court’s permission to appear as amicus curiae in this case and has filed a proposed amicus brief in support of Defendant. As of the filing of the government’s brief, the Court has not yet ruled upon that request.
The ACCA requires a mandatory minimum fifteen-year sentence for a felon
who knowingly possesses ammunition after having sustained three prior
convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. §
924(e)(1). Among other offenses, the statute includes burglaries within its
definition of “violent felony.” 18 U.S.C. § 924(e)(2)(B)(ii); accord Taylor v.
United States, 495 U.S. 575, 599 (1990). The district court found that Defendant
was subject to the penalty provisions of the ACCA based on his seven prior
burglary convictions. (PSR at ¶¶ 20-22.) Defendant does not challenge that
conclusion on appeal. Instead, Defendant contends that, notwithstanding his
undisputed status as an armed career criminal, the mandatory fifteen-year penalty
that Congress has prescribed for such offenders should not be applied in his case
because to do so would allegedly violate the Fifth and Eighth Amendments.
(Def. Br. at 8-9.) While this Court reviews those as-applied constitutional
challenges to the ACCA de novo, e.g., United States v. Anderson, 695 F.3d 390,
398 (6th Cir. 2012), it should reject both of them as meritless.
I. Applying the ACCA’s mandatory penalties for Defendant’s knowing possession of ammunition is consistent with the Due Process Clause of the Fifth Amendment.
The Fifth Amendment provides that “[n]o person shall be … deprived, of
life, liberty, or property, without due process of law.” U.S. Const. Amend. V.
criminal law does not require knowledge that an act is illegal, wrong, or
blameworthy.” United States v. Freed, 401 U.S. 601, 612 (1971) (Brennan, J.,
concurring). “Ignorance of a fact may sometimes be taken as evidence of a want
of criminal intent, but not ignorance of the law.” Reynolds v. United States, 98
U.S. 145, 167 (1878).
In short, Defendant was not convicted because he was caught “unwittingly”
with ammunition in his home (Def. Br. at 19), but rather was convicted because he
“knowingly possessed ammunition” as a felon. (R. 29, Plea Agreement at
PageID# 55.) Defendant’s alleged unawareness of the federal prohibition against
felons possessing ammunition is not a basis on which this Court can or should
refuse to apply the penalties that Congress has mandated for Defendant’s offense.
B. Section 922(g)(1)’s prohibition of the possession of ammunition by felons is not so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct.
Defendant next contends that his case falls within an exception to the maxim
that ignorance of the law is no excuse. (Def. Br. at 16-22.) Defendant correctly
notes this Court has not applied that maxim “when faced with a law so technical or
obscure that it threatens to ensnare individuals engaged in apparently innocent
conduct.” Baker, 197 F.3d at 219 (citing Bryan, 524 U.S. at 194); accord United
States v. Napier, 233 F.3d 394, 397-98 (6th Cir. 2000). However, the law which
together that creates a dangerous weapon that can inflict injury on others. A
citizen who knew that the government had placed restrictions on one part of that
dangerous combination—the firearm—should not be surprised to learn that the
government had placed restrictions on the other part of that combination—the
ammunition.2 See United States v. Phillips, 177 F. App’x 942, 954 (11th Cir.
2006) (“Just as Congress could rationally decide to punish possession of a firearm
by a convicted felon without requiring possession of ammunition, Congress could
also rationally decide to punish possession of ammunition by a convicted felon
without also requiring possession of a firearm. Congress made a rational decision
that certain individuals should be required to separate themselves fully from certain
wares common to the criminal enterprise, and it is not for us to invalidate that
decision.”).
2 Defendant accurately notes that some states do not prohibit felons from
possessing ammunition. (Def. Br. at 16; accord Proposed Amicus Br. at 5-8.) However, that some governmental entities have decided not to regulate the possession of ammunition by felons does not mean that it is not conduct which might appropriately be the subject of governmental regulation. See, e.g., Chandler v. Florida, 449 U.S. 560, 579 (1981) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting))).
In addition, possession of ammunition by a convicted felon is not the kind of
apparently innocent conduct that citizens would be surprised to learn is criminal.3
The primary purpose for possessing ammunition is to use it with a firearm. If a
felon cannot lawfully possess a firearm—a restriction which Defendant concedes is
reasonable and generally understood—then it is unlikely that a felon would have a
legitimate purpose for possessing ammunition.4 As such, prohibiting the
possession of ammunition by felons does not ensnare individuals who are engaged
in apparently innocent conduct.
3 Defendant cites United States v. Blom, 242 F. 3d 799 (8th Cir. 2001), in
support of his contention that “even a state police officer might not know it is a federal law violation for a felon to possess ammunition.” (Def. Br. at 17.) Blom stands for no such proposition. On the contrary, the court in Blom found that a “state police officer who knew Blom was a convicted felon would likely know it was a federal crime for him to possess ammunition,” but simply concluded that, because the officer in that case had no reason to know that Blom was a felon, the officer had no reason to find Blom’s possession of ammunition suspicious. 242 F.3d at 808 (emphasis added). Like the Eighth Circuit, this Court has also recognized that the contraband nature of ammunition when found in a felon’s possession is clear. See, e.g., United States v. Lyon, 488 F. App’x 40, 42 (6th Cir. 2012) (“Because the officers were aware that Lyons was a previously-convicted felon and therefore was not permitted to possess ammunition or a firearm, the incriminating nature of this box of ammunition was immediately apparent.” (internal citation omitted)).
4 Defendant suggests that he could have lawfully possessed the ammunition
for sporting purposes. (Def. Br. at 16.) However, unless Defendant was intending to throw the shotgun shells at large targets from close range, he would have needed a shotgun—an item which Defendant agrees he could not lawfully possess—to use the ammunition for a sporting purpose.
unusual punishment.”); see also United States v. Brown, 443 F. App’x 956, 960
(6th Cir. 2011) (“We have seen this movie before, and each time it ends badly for
the defendant.”). Those prior decisions are binding on this panel. See 6 Cir. R.
32.1(b) (“Published panel opinions are binding on later panels. A published
opinion is overruled only by the court en banc.”); accord Salmi v. Sec. of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot
overrule the decision of another panel … unless an inconsistent decision of the
United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.”).
Defendant nevertheless contends that this Court should depart from that
precedent for two reasons. First, Defendant claims that, because his offense was
allegedly only a strict liability crime, he is allegedly less culpable than other
ACCA offenders and his ACCA sentence is allegedly grossly disproportionate to
his offense. (Def. Br. at 22-32.) Second, Defendant contends that applying the
ACCA in his case would not be consistent with the purpose of the statute. (Def.
Br. at 32-36.) Defendant is mistaken on both points.
A. Defendant’s fifteen-year sentence is not grossly disproportionate to his offense of knowingly possessing ammunition after having previously been convicted of at least three violent felonies.
In attacking the proportionality of his sentence, Defendant primarily focuses
on the gravity of his offense, arguing that it was not very serious because it
large number of fairly serious crimes as their means of livelihood, and who,
because they possess weapons, present at least a potential threat of harm to
persons.”). As such, Congress reasonably chose to increase the penalties
applicable for violations of § 922(g)(1) for those more dangerous offenders so as to
incapacitate them.5 United States v. Vann, 660 F.3d 771, 826 (4th Cir. 2011)
(“Congress designed ACCA to incapacitate individuals whose prior conduct
5 Proposed amicus notes that some states have recently made different legislative choices concerning the imposition of mandatory recidivism sentencing enhancements. (Proposed Amicus Br. at 9-13.) However, that different legislatures have made different policy judgments regarding the best manner in which to achieve the penological goals of sentencing in the case of recidivists simply underscores the fact that such judgments are best left to political branches of government and should generally be respected by the courts. See Harmelin, 501 U.S. at 998 (Kennedy, J., concurring) (“Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order. … And the responsibility for making these fundamental choices and implementing them lies with the legislature.”); Solem v. Helm, 463 U.S. 277, 290 (1983) (“Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.”); Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (internal citation omitted)); Ex parte United States, 242 U.S. 27, 42 (1916) (“[T]he authority to define and fix the punishment for crime is legislative.”).
Moreover, given that many states still have and use recidivism sentencing statutes, the ACCA’s imposition of enhanced penalties for defendants with a history of violent felony or drug convictions cannot be considered “unusual punishment.” U.S. Const. Amend. VIII. Indeed, those existing state recidivism statutes as well as the ACCA are the very “objective indicia of society’s standards” which proposed amicus urges this Court to consider in conducting its Eighth Amendment analysis. (Proposed Amicus Br. at 3, 4, 7 (quoting Kennedy v. Louisiana, 554 U.S. 407, 421 (2008).)
assume that ‘the legislative purpose is expressed by the ordinary meaning of the
words used.’” (quoting Richards v. United States, 369 U.S. 1, 9 (1962))); see also
United States v. Hughes, No. 11-1201, __ F.3d __, 2013 WL 5763162, at *5 (6th
Cir. Oct. 25, 2013) (“Neither policy concerns, nor some general sense of the
statute's overriding purpose, nor the spirit of the age, provides us with any lawful
basis to do what Hughes asks us to do here. … [A]s judges we are confined to what
the law says.”).
Here, the language of the ACCA undisputedly covers Defendant. The
statute imposes enhanced penalties on felons who have three previous convictions
for a “violent felony.” 18 U.S.C. § 924(e)(1). The statute includes “burglary”
within the definition of violent felony. 18 U.S.C. § 924(e)(2)(B). Thus,
Defendant’s seven prior burglary convictions qualify him as an armed career
criminal under the statute.6
Defendant nevertheless contends that he “does not fall within the category of
persons Congress intended to imprison as recidivists with weapons.” (Def. Br. at
35.) However, even if this Court could set aside the plain statutory language—it
6 While the Supreme Court has clarified that only generic burglaries—i.e., those “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime”—qualify as “burglaries” under the ACCA, Taylor, 495 U.S. at 599, three of Defendant’s prior burglary convictions were Tennessee aggravated burglaries (PSR at ¶ 21-22), which this Court has previously found are categorically generic burglaries. United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). Thus, there is no question that Defendant is an armed career criminal under the statute.
UNITED STATES OF AMERICA, Plaintiff-Appellee, On appeal from the United v. States District Court for the Eastern District of Tennessee EDWARD YOUNG, No. 1:12-CR-00045 Defendant-Appellant. ENTRY NO. DESCRIPTION OF ENTRY PAGEID# RANGE
1 Indictment 1-2
29 Plea Agreement 54-60
35 Defendant’s Sentencing Memorandum 67-81
35-1 Young Declaration 82
38 Judgment 98-103
39 Notice of Appeal 104-105
41 Sentencing Transcript 109-138 s/Christopher D. Poole CHRISTOPHER D. POOLE Assistant United States Attorney