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United States v. Actual

filed: March 31, 1989.

UNITED STATES OF AMERICA, PETITIONER
v.
EDWARD HOWARD PALMER ACTUAL RESPONDENT, THE HONORABLE PAUL A. SIMMONS, NOMINAL RESPONDENT



On Petition for Writ of Mandamus, On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 87-00112.

Sloviter, Becker, Circuit Judges, and Barry, District Judge*fn*

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

Actual respondent Edward Howard Palmer was convicted in the district court for the Western District of Pennsylvania of possessing firearms in violation of 18 U.S.C. § 922(g) (Supp. IV 1986).*fn1 This petition for mandamus brought by the United States pursuant to 28 U.S.C. § 1651 (1982) presents the question whether Palmer's two prior state convictions for breaking and entering constitute convictions for "violent felonies" within the meaning of the Armed Career Criminal Act ("ACCA") so as to trigger ACCA's enhanced sentencing provision, 18 U.S.C. § 924(e) (Supp. IV 1986).*fn2 This provision provides for a mandatory minimum of fifteen years' imprisonment without parole where the defendant has three predicate felony convictions. If the state convictions constitute "violent felonies," we must then determine whether the district court's error in finding that they do not is of such a nature that it is appropriate for us to issue a writ of mandamus directing the district court: (1) to vacate the lesser sentence it imposed; and (2) to resentence Palmer in accordance with section 924(e). For the reasons that follow, we conclude that the state convictions at issue do qualify as "violent felonies." We also conclude that mandamus is the appropriate remedy. Accordingly, the writ will issue.

I.

In May of 1987, a grand jury, sitting in the Western District of Pennsylvania, returned a four-count indictment charging that on or about January 9, 1987, Palmer knowingly possessed four firearms in violation of 18 U.S.C. § 922(g).*fn3 Following a jury trial, Palmer was convicted of all four counts.

On July 8, 1988, a sentencing hearing was held. At that time, the government sought the enhanced penalty provided for in 18 U.S.C. § 924(e). This section of ACCA provides:

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen 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 section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

(2) As used in this subsection --

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that --

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e) (emphasis added).

In support of its request for an enhanced sentence, the government informed the district court that it intended to prove that Palmer had three prior convictions for "violent felonies" as defined in the statute. The government stated that its evidence would show that on March 16, 1966, Palmer had pled guilty in an Ohio state court to unlawfully and forcibly breaking and entering an uninhabited dwelling at night with intent to commit larceny therein. The government stated that it would also show that on March 5, 1981, Palmer was convicted in a West Virginia state court of feloniously breaking and entering a state-owned storehouse. As the third conviction, the government offered to prove that on November 2, 1981, Palmer had pled guilty to attempted bank robbery in violation of 18 U.S.C. §§ 2113(a), (b) (1982) in the United States District Court for the Western District of Pennsylvania.

Over the government's objection, the district court held that since Palmer's Ohio conviction was not for "burglary" under Ohio law, it could not be used as the basis for enhancing his current sentence pursuant to 18 U.S.C. § 924(e). The district court also held that to apply an expanded definition of the term "burglary" would violate the Ex Post Facto Clause of the United States Constitution. Finally, although it did not directly rule on the issue, the district court intimated that Palmer's West Virginia conviction also could not be considered a "burglary" for purposes of 18 U.S.C. § 924(e).

As a result of its ruling, the district court refused to apply the enhanced sentencing provision, which would have required that a mandatory minimum sentence of fifteen years be imposed. Instead, the court sentenced Palmer to four five-year terms of imprisonment, two of which were to run concurrently, resulting in a total sentence of ten years' imprisonment. This sentence is subject to parole, whereas an ...


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