APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Crim. No. 91-00070-01)
Before: Hutchinson, Cowen, and Weis, Circuit Judges
In this appeal the prosecution contends that the defendant's sentence should have been enhanced under the terms of the Career Criminals Act, 18 U.S.C. § 924(e)(1). The district court held that some of the predicate convictions were flawed and could not be used to justify the mandatory minimum sentence. We conclude that three of the convictions were valid and require that we remand for resentencing.
Defendant was found guilty of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). Asserting that he had been convicted on four previous occasions of crimes of violence, the government asked for the imposition of a mandatory minimum sentence of 15 years under the provisions of the Career Criminals Act. Defendant asserted that some of those prior convictions were constitutionally defective.
At the sentencing hearing, the district court accepted the defendant's argument in part, finding that one of the prior guilty pleas was "weak/flawed in relation to the Boykin case" and that another guilty plea was "an old matter." The court did not impose the mandatory minimum sentence, but instead departed upward from the Federal Sentencing Guidelines and imposed a ten year period of incarceration. Both defendant and the government have appealed.
Undercover drug enforcement officers were conducting a surveillance on Tasker Street in Philadelphia, Pennsylvania, on March 10, 1988, when they observed defendant park an automobile and then remain in the vicinity for approximately one and one-half hours. He cleaned out the car, spoke to people in the area, and at one point knocked on the door of 1439 Tasker Street, the residence that the agents were watching. Defendant then returned to his parked car, but continued to look in the direction of 1439 Tasker Street, as well as up and down the street. When officers approached the vehicle, one of them saw a .22 caliber revolver laying between the defendant's legs. The agents seized the weapon and found that it was loaded.
At an in limine proceeding, the court directed the prosecution not to refer to "drugs and drug transactions." During the government's closing argument to the jury, the prosecutor asked rhetorically: "Isn't that where you would have a gun if you were sitting acting as a lookout . . . ?" Defense counsel immediately moved for a mistrial, but the court denied the request.
As one of his grounds for appeal, defendant contends that the government's use of the word "lookout" was unfairly prejudicial and violated the trial Judge's in limine ruling. We are unable to agree. The trial Judge, who was in a far better position than we to weigh the effect of the prosecution's argument, did not find it necessary to take any corrective action. Moreover, we do not find that the prosecutor's remark violated the Judge's pretrial admonition, although it came close. In circumstances such as these, we defer to the discretion of the trial Judge and, in that light, we find no basis for the grant of a new trial.
The principal issue on this appeal is the sentence. The question is whether the defendant's four prior convictions can serve as predicates for enhancement under the Career Criminals Act.*fn1 The four convictions were: (1) a non-jury trial resulting in a guilty finding on June 21, 1972, in the Delaware County Court of Common Pleas, Pennsylvania (Nos. 445 and 447 May session 1970); (2) a separate case in the Delaware County Court of Common Pleas (Nos. 210 and 211 March session 1972) in which defendant pleaded guilty on March 10, 1972; (3) a guilty plea in Montgomery County, Pennsylvania, on April 24, 1972 (Nos. 158, 159, 160 and 161); and (4) a guilty plea in Atlantic County, New Jersey, on ...