Before: Hunter, Weis, Circuit Judges, and Gerry,*fn* District Judge
1. On October 14, 1981, appellant William Davis was charged in a one-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1) (1976). Violation of that statute carries a maximum prison term of two years. On October 22, 1981, appellant entered a plea of not guilty.
2. On November 21, 1981, the government filed a Notice of Request for Dangerous Special Offender Status under 18 U.S.C. § 3575 (1976 & Supp. V 1981). In that notice the government asked the court to find that appellant was a dangerous special offender as defined by section 3575, if he was found guilty of violating 18 U.S.C. App. § 1202(a)(1) (1976). Such a finding can result in the increase of a defendant's imprisonment to up to a twenty-five year term. 18 U.S.C. § 3575(b) (1976).
3. At a hearing conducted on March 22, 1982, appellant changed his plea to guilty. On June 8, 1982, the court conducted another hearing and concluded that appellant was a dangerous special offender. The district court thereafter sentenced appellant to a term of imprisonment of twelve years. This appeal raises five issues concerning the sentence imposed on appellant pursuant to section 3575. We will affirm the judgment of sentence.
4.Section 3575(b) provides that if the district court finds that a person convicted of a felony is also a dangerous special offender, then it shall sentence him to imprisonment "for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for the [underlying] felony." 18 U.S.C. § 3575(b) (1976). The definition of a "special" offender applicable to this appeal is an individual who, apart from the underlying felony, has committed two or more felonies on different occasions, who has been imprisoned for at least one of them, and who either committed one of the felonies or was released from imprisonment for one of the felonies within the last five years. 18 U.S.C. § 3575(e)(1) (1976 & Supp. V 1981). A "dangerous" offender is an individual for whom "a period of confinement longer than that provided for such [underlying] felony is required for the protection of the public from further criminal conduct by the defendant." 18 U.S.C. § 3575(f) (1976).
5. Whenever the government wishes to have a defendant over the age of twenty-one classified as a dangerous special offender, it must file a notice with the court within a reasonable time before trial or the acceptance of a plea of guilty or nolo contendere. 18 U.S.C. § 3575(a) (1976). That notice must state with particularity the government's reasons for believing that the dangerous special offender classification is appropriate in that case. Id.
6. After a finding of guilty or a plea of guilty or nolo contendere, the sentencing judge must hold a hearing without a jury to determine whether the defendant is special and dangerous as defined by the statute. 18 U.S.C. § 3575(b) (1976). The statute provides that "[i]n connection with the hearing, the defendant and the United States shall be entitled to assistance of counsel, compulsory process, and cross-examination of such witnesses as appear at the hearing." Id. The judge may consider information submitted during the trial and during the sentencing hearing, and information contained in the presentence report. Id. The judge must then make his findings based on proof by a preponderance of the evidence presented, and he must place those findings in the record. In his findings he must include the information on which he relied, as well as the reasons for the sentence which he imposed. Id.; see United States v. Felder, 706 F.2d 135 (3d Cir. 1983).
7. Appellant first argues that section 3575(b) violates the due process clause of the fourteenth amendment because it allows the sentencing judge to find that a defendant is special and dangerous based on a preponderance of the evidence presented. Appellant argues that due process requires the government to prove beyond a reasonable doubt that a particular defendant falls within the statutory definitions. See United States v. Duardi, 384 F. Supp. 874, 882-85 (W.D. Mo. 1974), aff'd on other grounds, 529 F.2d 123 (8th Cir. 1975).
8. Five courts of appeals have specifically addressed that constitutional challenge, and all have rejected it. See United States v. Schell, 692 F.2d 672, 676-79 (10th Cir. 1982); United States v. Inendino, 604 F.2d 458, 463 (7th Cir.) (per curiam) (affirming 463 F. Supp. 252 (N.D. Ill. 1978)), cert denied, 444 U.S. 932, 62 L. Ed. 2d 190, 100 S. Ct. 276 (1979); United States v. Williamson, 567 F.2d 610, 615 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160, 1172-75 (5th Cir. 1977); United States v. Ilacqua, 562 F.2d 399, 405 (6th Cir. 1977), cert. denied, 435 U.S. 906, 55 L. Ed. 2d 497, 98 S. Ct. 1453 (1978); United States v. Stewart, 531 F.2d 326, 332-34 (6th Cir.), cert. denied, 426 U.S. 922, 49 L. Ed. 2d 376, 96 S. Ct. 2629 (1976); see also United States v. Neary, 552 F.2d 1184, 1193-94 (7th Cir.), cert denied, 434 U.S. 864, 54 L. Ed. 2d 139, 98 S. Ct. 197 (1977) (considering only the standard of proof required to prove dangerousness); United States v. Cox, 556 F. Supp. 812, 813-14 (W.D. Mo. 1983); United States v. Holt, 397 F. Supp. 1397, 1399-400 (N.D. Tex. 1975), modified on other grounds sub nom. United States v. Bailey, 537 F.2d 845 (5th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S. Ct. 764, 50 L. Ed. 2d 767 (1977).
9. While normal sentencing proceedings are not immune from all due process attacks, see Williams v. New York, 337 U.S. 241, 252, 93 L. Ed. 1337, 69 S. Ct. 1079 n.18 (1949); Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948), the Supreme Court has required only minimal due process protections in those proceedings. See United States v. Grayson, 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Ct. 2610 (1978); Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949); see also Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 n. 9 (1977) (plurality opinion). The Supreme Court has required additional procedural protections, however, when a convicted individual is sentenced to a longer term of imprisonment pursuant to a statute which requires additional fact-finding by the sentencing judge. Specht v. Patterson, 386 U.S. 605, 18 L. Ed. 2d 326, 87 S. Ct. 1209 (1967).
10. In Specht the Court considered the due process rights of an individual who was convicted of a sex-related offense under one Colorado statute and who was then sentenced to an enhanced term of imprisonment pursuant to the Colorado Sex Offenders Act, Colo. Rev. Stat. Ann. §§ 39-191-1 to -10 (1963). That statute allowed the judge to sentence a convicted individual to a term of imprisonment from one day to life without notice or a hearing, based only on a psychiatric report, if the judge found that the individual posed a threat of bodily ...