The opinion of the court was delivered by: DIAMOND
Before us is defendant's motion to dismiss the indictment for failure to aver three legal convictions. Specifically, defendant claims that one of the predicate convictions to the present prosecution was obtained without the benefit of defense counsel; hence, it cannot be used to enhance a sentence or support a conviction under the Armed Career Criminal Act, 18 U.S.C. Appendix II § 1202(a) (the "ACCA"). As we will explain, we agree that this unconstitutional conviction cannot be used for sentence enhancement under the ACCA, but we deny defendant's motion to dismiss the indictment.
For our purposes, we focus on Gantt's 1962 conviction for breaking and entering with intent to commit a felony. For that offense, the court sentenced him to one year at hard labor. The certified record is silent as to whether he had counsel. The government has conceded that he did not. Defense counsel has informed the court that Gantt is preparing an attack on this conviction in the Florida state courts. Though reserving its right to prove that Gantt waived counsel in the 1962 prosecution, the government has stipulated for purposes of this motion that the 1962 conviction was unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963).
In the time since the parties briefed this motion, the Third Circuit decided United States v. Hawkins, 811 F.2d 210 (1987), where it held that the ACCA does not create a separate offense but rather imposes enhanced penalties on certain violators of the Gun Control Act of 1968, Pub.L. 90-351, Title VII, 82 Stat. 236 (codified at 18 U.S.C. Appendix II § 1202(a)(1)).
In light of Hawkins, the present indictment charges a violation of the Gun Control Act - possession of a firearm by a person having a felony conviction - and notifies Gantt that the government will seek an enhanced sentence under the ACCA. Thus, the issue before us is whether a conviction obtained in violation of Gideon can be used to enhance sentence under the ACCA. The government argues that this issue is identical to that which confronted the Supreme Court in Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980), where the court held that an uncounseled conviction could support a conviction under the Gun Control Act. Relying on the line of cases that culminated in Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), Gantt contends that the 1962 conviction cannot be used to enhance punishment.
We must first analyze the meaning of "conviction" as used by Congress in the ACCA. Only then can we consider the constitutional implications of the statute. See United States v. Graves, 554 F.2d 65, 77 & n.40 (3d Cir. 1977) (en banc).
The ACCA, enacted as part of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, Title II, §§ 1802, 1803, 98 Stat. 2185, states:
In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $ 25,000 and imprisoned not less than 15 years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such a person shall not be eligible for parole with respect to the sentence imposed under this subsection.
Subsection 1, to which the statute refers, is the Gun Control Act construed in Lewis and Graves. Though the Gun Control Act and the ACCA were separately enacted, the integration of the ACCA into § 1202 and the ACCA's explicit reference to the Gun Control Act require that we look to that act in interpreting the ACCA. Cf. United States v. Hawkins, slip op. at 18 (holding that the ACCA is a sentence enhancement amendment to the Gun Control Act, not a separate offense).
The ACCA speaks only of "convictions," without qualifying them in any way. When Congress wanted to, it could and did expressly limit the types of convictions that a court may consider. See, e.g., 18 U.S.C. § 3575(e) (repealed effective Nov. 1, 1987, Pub.L. 98-473, §§ 212(a)(2), 235). Construing similar language in the Gun Control Act ("convicted by a court . . . of a felony"), the Supreme Court held that Congress did not intend to exclude unconstitutional convictions from the statute's sweep. Lewis, 445 U.S. at 60-62; see also Graves, 554 F.2d at 69. Especially since Congress referred to the Gun Control Act when defining the predicate offenses under the Armed Career Criminal Act, we may ...