United States v. Horace Benson

605 F.2d 1093 UNITED STATES of America, Plaintiff-Appellee, v. Horace BENSON, Defendant-Appellant. No. 78-3215. United States Court of Appeals, Ninth Circuit. July 19, 1979. Daniel Markoff, Las Vegas, Nev. (argued) for defendant-appellant; Kenneth C. Cory, Las Vegas, Nev., on brief. Rimantas Rukstele, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before TUTTLE, * ELY and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Benson appeals from his conviction of violating 18 U.S.C. § 922 (h)(1), receipt of a firearm shipped in interstate commerce by one convicted of a crime punishable by imprisonment for more than one year. We affirm. 2 This case comes before us for the second time. Appellant pleaded guilty pursuant to a negotiated plea bargain in June 1977. We vacated, holding that Benson could not enter a conditional plea of guilty. Because we had not previously ruled on the validity of the conditional guilty plea, Benson was given the opportunity to withdraw his plea and to plead anew. United States v. Benson, 579 F.2d 508 (9th Cir. 1978). 3 On remand, he was tried and convicted by a…

Benson appeals from his conviction of violating 18 U.S.C. § 922 (h)(1), receipt of a firearm shipped in interstate commerce by one convicted of a crime punishable by imprisonment for more than one year. We affirm.

This case comes before us for the second time. Appellant pleaded guilty pursuant to a negotiated plea bargain in June 1977. We vacated, holding that Benson could not enter a conditional plea of guilty. Because we had not previously ruled on the validity of the conditional guilty plea, Benson was given the opportunity to withdraw his plea and to plead anew. United States v. Benson, 579 F.2d 508 (9th Cir. 1978).

On remand, he was tried and convicted by a jury and sentenced to five years probation.

It is undisputed that Benson received a firearm which had been shipped in interstate commerce. His sole contention on the merits is that the trial court erred in ruling that his earlier state conviction satisfied the prior conviction element of § 922(h)(1).

Benson pleaded guilty in 1974 to a charge of possession of a controlled substance in violation of Illinois’ Controlled Substance Act, Ill.Rev.Stat. ch. 561/2, § 1402. Violation of § 1402 is a felony and carries a ten…

(concurring):

I reluctantly concur, and I concur only because of the compulsion of the precedent within our own Circuit. See United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979); United States v. Locke, 542 F.2d 800 (9th Cir. 1976). I feel compelled, however, to reiterate my belief that we should respect a state’s right to define and determine when an individual has been convicted under the state’s law. See Kelly v. Immigration & Naturalization Service, 349 F.2d 473, 474-80 (9th Cir. 1965) (Ely, J., dissenting). Under the “principle” of national uniformity in the application of federal law, we have unnecessarily and unjustifiably intruded upon a sovereign right that, as I see it, appropriately belongs to the states.

Benson was convicted of violating 18 U.S.C. § 922 (h)(1). 1 That statute’s interpretation is governed by 18 U.S.C. § 927 , a statute reflecting the clear intent of Congress not to intrude into areas traditionally reserved to the states:

Both the federal and state laws concern the subject of an individual “convicted” of a crime. There is, however, no “direct and positive conflict” between the federal and state statutes such that the statutes “cannot be reconciled…