filed: April 20, 1989; As Corrected April 24, 1989.
Reargued In Banc: January 30, 1989 Appeal From the United States District Court For the Middle District of Pennsylvania - Scranton, D.C. Docket Criminal No. 87-00026-01
Before: Gibbons, Chief Judge, Higginbotham, and Hunter, Circuit Judges
Before: GIBBONS, Chief Judge, SEITZ, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, and NYGAARD, Circuit Judges
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
Robert Balascsak appeals from a judgment of sentence imposed pursuant to the Armed Career Criminal Act of 1984, 18 U.S.C. § 1201(a).*fn1 Balascsak pleaded guilty to a charge of possession of a firearm by a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1). The government sought an enhanced sentence under the Armed Career Criminal Act, and the court imposed the mandatory minimum of fifteen years imprisonment without parole. Balascsak contends that the sentence should be vacated and the case remanded for resentencing because the Armed Career Criminal Act does not apply to the conduct relied on by the sentencing court. We agree, and we will vacate the judgment of sentence and remand for resentencing.
Balascsak's plea of guilty to a violation of 18 U.S.C. App. § 1202(a)(1) is not in issue on this appeal. The charge to which he pleaded arose out of his purchase, on September 29, 1986, of a shotgun from a licensed gun dealer in Danville, Pennsylvania. In making the purchase he falsely certified that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year. He does not dispute that his possession of the shotgun violated the governing federal statute.
The statute under which the government moved for an enhanced sentence provides in relevant part:
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony
and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearms and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, 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 this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.
18 U.S.C. App. § 1202(a) (1982 & Supp. II 1984). In addition to felons, the statute bars dishonorably discharged veterans, mental incompetents, those who have renounced U.S. citizenship, and illegal aliens from receiving, possessing, or transporting firearms. The second sentence quoted above, containing the greater penalties for persons with three previous convictions, was added by amendment in 1984. Pub. L. No. 98-473. This court has held that the 1984 amendment did not create a new offense, but rather is merely a sentencing enhancement provision. United States v. Hawkins, 811 F.2d 210 (3d Cir. 1987), cert. denied, 484 U.S. 833, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987).
In order to have the enhanced sentence imposed on Balascsak the government had to provide evidence of three prior felony convictions. In its original notice of intent to seek an enhanced sentence, the government listed three prior felony convictions in the Court of Common Pleas of Bucks County.*fn2 The government produced evidence that on May 21, 1981, Balascsak was found guilty of and sentenced for burglary in the Court of Common Pleas of Bucks County, Pennsylvania. During the night of July 10-11, 1981, Balascsak committed two more burglaries; one at a residence in Levittown, Pennsylvania, at about 10:45 p.m. and a second at a residence one block away from the first, some time between 11:00 p.m. and 7:00 a.m. the next morning. The July 10-11 burglaries were charged in separate informations to which Balascsak, represented by counsel, pled guilty in November of 1981. In February of 1982, the Court of Common Pleas of Bucks County imposed concurrent sentences on the July 10-11 burglaries.
In March of 1983, Balascsak, represented by new counsel, petitioned for a new trial on the July 10-11 charges on the ground that his counsel was incompetent. While the initial petition sought a new trial, it alleged that Balascsak's counsel had improperly handled the sentencing stage of the case. Perhaps realizing that error at the sentencing stage would not warrant a new trial, Balascsak's new attorney filed an amended petition seeking only a new sentencing rather than new trial. On April 14, 1983, a judge of the Court of Common Pleas vacated Balascsak's sentence and ordered a new sentencing hearing. On April 21, 1983, the same judge ordered that Balascsak be transported from his place of incarceration to the Bucks County Jail so that he might confer with his attorney in preparation for his "reconsideration of sentencing hearing." So far as the record before us reveals, nothing further transpired in the state court. We do not know if any resentencing hearing took place. However, on April 26, 1983, a different Common Pleas judge in Bucks County ordered Balascsak paroled forthwith on the judgment of sentence in the May 1981 burglary conviction, and he was apparently released on parole. It is not possible to tell from the record before us whether this parole occurred before or after the time when Balascsak would have been released on the sentence for the July 10-11, 1981 burglaries if it had not been vacated. But, in any event, the district court imposed an enhanced sentence on the basis of the record outlined above, and we must look to it in deciding whether that action was proper.
Balascsak's first objection to the enhanced sentence is that the court relied on the July 10-11 burglary convictions, despite the fact that the sentences on those charges were subject to a pending challenge. He argues that an "inexplicable breakdown" in the operation of the Pennsylvania court system prevented the final resolution of his challenge to the judgment of sentence imposed on the July 10-11 burglary charges, and that for this reason they may not be considered as convictions for purposes of enhanced punishment under 18 U.S.C. App. § 1202(a). That agreement must be rejected.
In a case decided before the enhanced penalty for three-time offenders was added, the Supreme Court held that the term "convicted" in the first part of the statute is unambiguous and includes convictions subject to collateral attack. Lewis v. United States, 445 U.S. 55, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980). The Court concluded that "§ 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds." 445 U.S. at 65. It rejected, however, a reading of the statute that includes as a "conviction" a predicate conviction that has been reversed on appeal. Instead, it viewed "the language Congress chose as consistent with the common-sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated." 445 U.S. at 61, n.5. The Court interpreted the statute as "imposing a civil firearms disability, enforceable by a criminal sanction," on those whom Congress viewed as potentially dangerous. 445 U.S. at 67. Someone convicted of a felony must clear his status before obtaining a firearm. 445 U.S. at 64-65.
In Dickerson v. New Banner Institute, 460 U.S. 103, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983), a case arising under 18 U.S.C. §§ 922(g) and (h) rather than 18 U.S.C. App. § 1202, the Court held that a plea of guilty which was never reduced to judgment and was eventually expunged under state law was nevertheless a firearm disability. Under the Iowa statutes then in effect, a trial judge could, upon a plea of guilty and with consent of the defendant, defer judgment and place a defendant on probation. Upon fulfillment of the terms of probation, the defendant would be discharged without entry of judgment. Here, as in Dickerson, there was a guilty plea to the July 10-11 burglary charges, which Balascsak has never sought to withdraw. The Court in Dickerson relied heavily on Lewis, noting that the two gun control statutes are similar, partially overlapping, and indeed that it "detect[ed] little significant difference between the two." 460 U.S. at 111 (quoting Lewis). Acknowledging that sometimes the term "convicted" is limited to persons against whom a formal judgment has been entered, it rejected such an interpretation since the congressional intent "in enacting §§ 922(g) and (h) and § 1202 was to keep firearms out of the hands of presumptively risky people," emphasizing that sections 922(g) and (h) apply not only to those convicted but also to those merely under indictment. 460 U.S. at 112 n.6. It held that where a defendant pleads guilty, the plea is noted by the court, and the court sentences him to probation, he has been "convicted" within the meaning of section 922(g) and (h). 460 U.S. at 114. The Court quoted with approval the statement that "once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress." Id. (quoting United States v. Woods, 696 F.2d 566, 570 (8th Cir. 1982)); see also, United States v. Adams, 771 F.2d 783, 789 (3d Cir.) ("convicted" as used in the dangerous special offender provisions of 18 U.S.C. § 3575-78 includes guilty verdicts and pleas that have not been implemented by a judgment), cert. denied, 474 U.S. 1013, 88 L. Ed. 2d 474, 106 S. Ct. 545 (1985).
The Court in Dickerson then turned to the question whether the expunction of the state court's record nullified the conviction for purposes of the federal statute. It noted that the face of the statute contains no such exception but acknowledged that Lewis "recognized an obvious exception to the literal language of the statute for one whose predicate conviction had been vacated or reversed on direct appeal." 460 U.S. at 115. The Court found an exception for an expunged conviction, "unlike one reversed or vacated due to trial error, . . . far from obvious." Id. "Expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty." Id.
The Court thought this conclusion fortified by various other provisions of the federal gun control laws, including most significantly for this case, the pardon provision of 18 U.S.C. App. § 1203(2). That provision exempts from the firearms disability of section 1202, "any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm." Thus a pardon without explicit firearm authorization is insufficient to remove the disability. "It is inconceivable that Congress could have so provided and yet have intended . . . to give a state expunction a contrary and unconditional effect." 460 U.S. at 117.
Under Dickerson, it is clear that Balascsak was "convicted" when he pled guilty, the plea was accepted, and sentence imposed. The question is whether the vacating of the sentence nullifies the conviction. There is no doubt that if the conviction had been vacated (for example, if the petition for a new trial had been granted) this would nullify the conviction under the "obvious" exception to the literal language noted in Lewis and Dickerson. However, since expunging the record does not nullify a conviction, it is difficult to see why vacating a sentence with the intention of resentencing should nullify the conviction. Neither the legality nor the accuracy of the conviction is called into question by granting a petition for resentencing. Judged from the perspective of a prediction concerning who can be trusted with a dangerous weapon, the granting of a petition for resentencing gives no assurance whatsoever that the defendant should be so trusted. Cf. Dickerson, 460 U.S. at 120-21 ("the circumstances surrounding the expunction of his conviction provide little, if any, assurance that Kennison is a person who can be trusted with a dangerous weapon").
We note that Dickerson was largely overruled by the Firearm Owners' Protection Act, Pub. L. 99-308, sec. 101, 100 Stat. 449. That Act provides that a "conviction" is to be determined in accordance with the law of the jurisdiction in which the proceeding was held and that a conviction which has been expunged or for which a person has been pardoned shall not be considered a conviction, unless the expunction or pardon expressly provides for a firearm disability. There are two reasons why this provision is not of help to Balascsak. First, there is no indication that the provision was meant to apply to violations of § 1202 which occurred prior to the effective date of the Act. See United States v. Pennon, 816 F.2d 527, 529 (10th Cir.), cert. denied, 484 U.S. 987, 108 S. Ct. 506, 98 L. Ed. 2d 504 (1987); United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987), ...