United States v. Michael C. Wicks

dissenting:

I dissent. I believe that in this case the Armed Career Criminal Act’s requirement of “three convictions” is not satisfied because two out of Wicks’ three convictions were for burglaries occurring on the same night.

Section 1202(a) of the Armed Career Criminal Act of 1984,18 U.S.C.App. 1202(a) (repealed 1986), provides for a minimum fifteen year sentence for a person who receives, possesses, or transports a firearm and who has “three previous convictions ... for robbery or burglary.” The majority finds no ambiguity in this language. The majority follows the dictionary definition of conviction and holds that the language of section 1202(a) “encompasses any person with three predicate convictions, wherever obtained.” Majority Opinion at 193.

The majority’s approach, in my view, leads to an incorrect result. As Judge Learned Hand stated:

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945), aff'd, 326 U.S. 404 , 66 S.Ct. 193 , 90 L.Ed. 165 (1945). Judge Hand’s approach is supported by Supreme Court authority. The majority opinion at 193 relies on the following statement by the Supreme Court in Burlington Northern Co. v. Oklahoma Tax Comm’n, — U.S. —, 107 S.Ct. 1855,…

Wicks appeals from his conviction for felony possession of a firearm under the Armed Career Criminal Act of 1984, 18 U.S.C. App. 1202(a) (repealed 1986). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Wicks was sentenced to 15 years incarceration under section 1202(a), which provides in part that:

Wicks contends that his conviction under the statute is invalid because two of his three predicate burglary convictions resulted from burglaries that occurred on the same night (though at different locations), that were prosecuted together, and that resulted in concurrent sentences. He argues that it is inappropriate to apply the statute to a person in his position because the statute was designed to treat the problem of career criminals and career criminals are criminals who “have failed in rehabilitation after three successive prosecutions.” He contends that no rehabilitation was possible between the two burglaries which were committed on the same day and resulted in concurrent sentences imposed at the same time. Thus, Wicks concludes, these two burglaries cannot be considered as two predicate convictions under the statute. We review questions of statutory…

833 F.2d 192 UNITED STATES of America, Plaintiff-Appellee, v. Michael C. WICKS, Defendant-Appellant. No. 87-3010. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 8, 1987. Decided Nov. 27, 1987. Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant. Frank Noonan, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. PER CURIAM: 1 Wicks appeals from his conviction for felony possession of a firearm under the Armed Career Criminal Act of 1984, 18 U.S.C. App. 1202(a) (repealed 1986). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 , and we affirm. 2 Wicks was sentenced to 15 years incarceration under section 1202(a), which provides in part that: 3 [i]n the case of a person who receives, possesses, or transports in commerce ... any firearm and who has three previous convictions by [a court of the United States or of a State or any political subdivision thereof] for robbery or burglary ... such person shall be ... imprisoned not less than fifteen years.... 4 Wicks contends that his…