United States of America, Appellee, v. Walter William Anna, Appellant, 863 F.2d 31 (8th Cir. 1988)

Defendant Walter William Anna entered a plea of guilty to possession of a firearm by a felon in violation of 18 U.S.C.App. Sec. 1202(a) (1) and received a 15-year sentence, the minimum enhanced sentence. He appeals the District Court's¹  denial of his Fed. R. Crim. P. 35 motion for correction of sentence. We affirm.

When this appeal previously was before us, we remanded the case to the District Court for a determination of whether there was excusable neglect, within the meaning of Fed. R. App. P. 4(b), for the untimely filing of Anna's notice of appeal. See United States v. Anna, 843 F.2d 1146 (8th Cir. 1988). On remand, the District Court has made an explicit finding of excusable neglect and has extended Anna's time for filing his appeal in accordance with Rule 4(b). In light of these rulings by the District Court, it is clear that we have jurisdiction to decide the merits of the appeal, and we now proceed to do so.² 

Anna challenges his sentence on the ground that he was improperly sentenced under 18 U.S.C.App. Sec. 1202(a) (1). He contends that the 1984 amendments to Sec. 1202(a) created a new criminal offense and were not a sentence-enhancement provision. See Armed Career Criminal Act, ch. 18, Sec. 1802, 98 Stat. 2185 (1984) (codified at 18 U.S.C.App. Sec. 1202(a)). We considered and rejected that argument in United States v. Rush, 840 F.2d 574 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 108 S. Ct. 2908, 101 L. Ed. 2d 940 (1988). We held there that the intent of Congress was to enhance the punishment for career criminals and not to create a separate statutory offense. Id. at 578. We are bound by that holding here. Therefore, the imposition of an enhanced sentence in the present case was proper.

Accordingly, the judgment of the District Court is affirmed.