Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Criminal Action No. 89-00085.
Higginbotham, Chief Judge, Hutchinson and Cowen, Circuit Judges.
HUTCHINSON, Circuit Judge.
Dale M. Preston (Preston) appeals from an enhanced sentence imposed under the Career Criminals Amendment Act of 1986 (Act), Subtitle I of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1402, 100 Stat. 3207-39 to -40 (1986), 18 U.S.C.A. § 924(e) (West Supp. 1990). The Career Criminals Amendment Act -- which amended the Armed Career Criminal Act of 1984, Pub. L. No. 98-473, ch. 18, 98 Stat. 2185 (1984), 18 U.S.C.A. § 1202, as recodified at 18 U.S.C.A. § 924(e) by the Firearm Owners' Protection Act of 1986, Pub. L. No. 99-308, § 104, 100 Stat. 458 (1986) -- requires an enhanced sentence in convictions for possession of firearms when the defendant has three prior convictions for violent felonies. After convicting Preston for illegal possession of firearms by a felon, the government produced evidence of three prior felony convictions on his record.
On appeal, Preston contends that two of the three prior convictions introduced by the government cannot properly be used to enhance his sentence under the Career Criminals Amendment Act. He argues that one of the prior convictions, for criminal conspiracy to commit robbery, is not a "violent felony" under the Act. He argues that another of the prior convictions should not be considered because a potential conflict of interest in the 1971 proceedings that led to the conviction casts doubt upon whether he received effective assistance of counsel. Preston also argues that some, or all, of his prior convictions are now too stale to be considered during sentencing. Finally, Preston challenges the fine imposed by the district court after conviction.
We find no merit in any of Preston's arguments. Criminal conspiracy to commit robbery is a "violent felony" that can properly be counted for purposes of sentencing under the Career Criminals Amendment Act. Evidence of a potential conflict of interest is insufficient to support a claim of ineffective assistance of counsel made in collateral proceedings, and hence Preston's 1971 conviction can be considered in the absence of a showing of an actual conflict of interest in the earlier proceedings. The sentence enhancement language of the Career Criminals Amendment Act does not support Preston's staleness argument, and the fine that the district court imposed was reasonable and supported by the evidence. Therefore, we will affirm the district court's judgment of conviction and sentence.
While conducting surveillance of Preston's house in York, Pennsylvania, in early 1988 after receiving a tip that he was dealing in stolen goods, city police discovered that Preston was in possession of several firearms. Police confiscated five rifles after obtaining a search warrant for Preston's house. He was indicted for possessing the rifles in violation of 18 U.S.C.A. § 922(g) (West Supp. 1990), which prohibits the possession of firearms by a convicted felon. After a jury trial, Preston was found guilty.
The United States government sought to have Preston's sentence enhanced under the Career Criminals Amendment Act, 18 U.S.C.A. § 924(e). Section 924(e) (1) provides:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years. . . .
Id. § 924(e)(1). The government filed an information listing three previous convictions Preston had received in Pennsylvania state courts in the 1970's: (1) a 1971 conviction in the York County Court of Common Pleas for robbery with an accomplice; (2) a 1977 conviction in the same court for resisting arrest, disorderly conduct and aggravated assault on a police officer; and (3) a 1977 conviction in the Cumberland County Court of Common Pleas for criminal conspiracy to rob the Embers Motel and Restaurant.
During the 1971 criminal proceedings for robbery with an accomplice, Preston and his accomplice were not given separate representation. Instead, they both were represented by the same public defender. There was no written waiver of individual representation by the two defendants, nor is there any evidence in the court transcripts that this possible conflict of interest was discussed with them. After a jury trial, both defendants were found guilty.
The 1977 criminal conviction in the Cumberland County Court of Common Pleas resulted from a criminal conspiracy between Preston and another man to rob the Embers Motel and Restaurant. Shots were fired during the crime. Although Preston was not the armed robber, he was parked in a stolen car outside the Embers and was unlawfully carrying a firearm when the robbery took place. He was later arrested when he entered the Embers. A ...