APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 83-00097)
The Special Dangerous Offender Act permits the imposition of an enhanced sentence on defendants who have previously been convicted of criminal offenses. The primary issue in this case is whether a verdict of guilty before entry of judgment constitutes a "conviction" within the meaning of the Act. The sentencing judge ruled that it does, and we agree. Accordingly, we will affirm the judgment of the district court.
Defendant was indicted for violating 18 U.S.C. (APP) § 1202(a) (1), -- possession of a firearm by a previously convicted felon. The maximum sentence for that offense was two years; however, on March 31, 1983, the government filed a notice alleging that defendant was subject to an increased sentence under the Dangerous Special Offender Act, 18 U.S.C. §§ 3575-78. After defendant pleaded guilty to the firearms charge on May 23, 1983, the district court held a special sentencing hearing and ruled that defendant was a special dangerous offender. The court then imposed a prison term of ten years.
In finding that the special offender statute applied, the district court cited:
1. a federal conviction of charges of distribution of a controlled substance to which defendant pleaded guilty on July 23, 1973 and was sentenced on July 24, 1973;
2. a state court conviction on charges of assault and battery, resisting arrest, and resisting an officer to which defendant pleaded guilty and was sentenced on January 24, 1963;
3. a guilty plea to aggravated robbery entered in the state court on August 11, 1964 after which sentence was imposed;
4. charges in the state court of aggravated assault and possession of an instrument of crime of which defendant was found guilty by a jury on February 11, 1982.
Defendant objected to reliance on the 1982 offenses because the state court had not yet imposed sentence. The district judge stated, "It is clear that there was a verdict of guilty, that is, as far as I am concerned, a conviction within the meaning of the statute of 18 U.S. Code Section 3575. . . . There is no indication and nothing in the record to indicate in any way that there will be an reasonable likelihood of that conviction being set aside, or a new trial granted [or] . . . to suggest that the verdict was in any way improper." The court did not rely on several other offenses listed in the pretrial report because it was not clear that defendant had been represented by counsel during those proceedings.
Defendant filed an appeal in this court which was docketed at No. 83-1526.
Because of uncertainty about whether defendant had been represented by counsel in the 1963 case, the matter was remanded to the district court for further fact finding. After a hearing on April 9, 1984, the district judge stated that he had not initially considered the 1963 assault case because in the pretrial report defendant said he had not had legal assistance. However, based on evidence produced at the April 1984 hearing, the district court found defendant had been represented by a lawyer during the proceedings leading to the 1963 conviction for assault and resisting arrest. Other evidence established that counsel had also appeared for defendant in connection with other convictions which had not been taken into account in the original sentencing hearing.
The district judge then commented, "The record stands the same as it was at the original sentencing hearing, except for the fact that as to the two offenses which I specifically excluded from consideration, could now be properly considered [referring to two separate 1963 convictions]." The court also noted that the state court had by then imposed sentence on the 1982 guilty verdict. For these reasons the ten year sentence was left undisturbed.
Defendant again appealed (Docket No. 84-1216), and once more the case was remanded. At a hearing in November 1984, the government conceded that the aggravated robbery conviction in 1964 had been erroneously attributed to defendant. The district court accordingly excluded that offense from consideration and reduced the sentence to eight years.
Defendant appealed once more. All three appeals have been consolidated and assigned to this panel for disposition.
On appeal, defendant contends that the evidence is insufficient to support the district court's finding of representation at the 1963 proceedings, that the sentence was disproportionate, and that the district court erred in ruling that a guilty verdict, without more, is sufficient proof of "the last such previous offense" required by the special offender statute.
The government advances three bases for affirmance:
1. the 1982 guilty verdict was a "conviction;"
2. assuming arguendo that the 1982 verdict was not a "conviction" at the time the ten year sentence was imposed, the entry of a judgment in the state court cured that deficiency before imposition of the eight year sentence now on appeal;
3. again assuming arguendo that the 1982 verdict was not a "conviction" at the time the ten year sentence was ordered, the statutory requirement of "commission of an offense" within five years of the federal felony was established by the unanimous guilty verdict in 1982. The predicate "convictions" were ...