United States v. Bullock, No. 07-3059 (2d Cir. 2008)
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07-3059-cr United States v. Bullock 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: October 3, 2008 Decided: December 17, 2008) Docket No. 07-3059-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.- 07-3059-cr WILLIAM BULLOCK, JR., Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, MINER and SOTOMAYOR, Circuit Judges. Defendant-Appellant William Bullock, Jr. appeals from a 30 judgment of conviction entered in the United States District 31 Court for the Northern District of New York (McAvoy, J.) on 32 July 13, 2007. 33 Career Criminal Act, his prior convictions cannot be counted 34 because his civil rights had been restored. 35 following reasons, we affirm. He argues principally that under the Armed For the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 BRYAN E. ROUNDS, Rounds & Rounds, Kingston, NY , for Defendant-Appellant. PAUL D. SILVER, Assistant United States Attorney (Carlos A. Moreno, Assistant United States Attorney, on the brief), for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Albany, NY , for Appellee. DENNIS JACOBS, Chief Judge: Defendant-Appellant William Bullock, Jr. appeals from a 17 judgment of conviction entered in the United States District 18 Court for the Northern District of New York (McAvoy, J.) on 19 July 13, 2007. 20 (and sentence) under the Armed Career Criminal Act ( ACCA ), 21 18 U.S.C. § 924(e), must be set aside because his civil 22 rights had been restored; (2) his motion for a judgment of 23 acquittal or new trial should have been granted because 24 there was insufficient evidence to establish his 25 constructive possession of ammunition found in a shared 26 residence; (3) the jury venire was not representative of a 27 cross-section of the community; and (4) his sentence is 28 disproportionate in violation of the Eighth Amendment. 29 affirm. Bullock argues that: 30 2 (1) his conviction We 1 2 BACKGROUND In October 2005, a confidential informant working for 3 the Albany County Sheriff s Department made two small 4 purchases of crack cocaine from Bullock. 5 transactions, the Sheriff s Department obtained a search 6 warrant for the residence that Bullock shared with his 7 fiancée. 8 Based on these During a search of the residence executed on October 9 12, 2005, law enforcement officials opened a dresser drawer 10 in the bedroom shared by Bullock and his fiancée and found a 11 small quantity of crack cocaine, some correspondence 12 addressed to Bullock, eight rounds of ammunition, zip-lock 13 baggies of a kind used to package cocaine, a speed loader 14 used to feed ammunition into a revolver, and $1,543 cash. 15 Thirty dollars of the cash was identified as pre-recorded 16 buy money paid to Bullock during a transaction with the 17 confidential informant. 18 seized a rifle, two shotguns, and assorted ammunition from a 19 duffel bag in Bullock s garage. Law enforcement officials also 20 Bullock was charged with two ACCA counts, one for 21 possessing ammunition and the other for possessing firearms 22 after having been convicted of at least three violent felony 3 1 offenses in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). 2 He was convicted on the ACCA count charging possession of 3 ammunition but acquitted on the ACCA count charging 4 possession of firearms. 5 of possessing with intent to distribute and distributing 6 cocaine base and one count of possessing with intent to 7 distribute cocaine base in violation of 21 U.S.C. § 8 841(a)(1). 9 imprisonment on the ACCA count, eight months above the He was also convicted on two counts Bullock was sentenced principally to 188 months 10 mandatory minimum sentence, and to twelve months and a day 11 on each of the other counts to run concurrently with the 12 sentence on the ACCA count. 13 14 DISCUSSION 15 I 16 Bullock argues that the imposition of a fifteen-year 17 mandatory minimum sentence was error because the ACCA does 18 not count convictions that have been expunged, or set aside 19 or for which a person has been pardoned or has had civil 20 rights restored . . . unless such pardon, expungement, or 21 restoration of civil rights expressly provides that the 22 person may not ship, transport, possess, or receive 4 1 2 firearms. 18 U.S.C. § 921(a)(20). Bullock contends that his civil rights had been 3 restored at the time of the present offense because he had 4 been off parole for 11 years, he was entitled to vote, 5 and New York State law did not restrict his right to possess 6 ammunition. 7 The restoration of civil rights involves three 8 components: (1) the right to vote; (2) the right to serve on 9 a jury; and (3) the right hold elective office. See McGrath 10 v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995); see 11 also Logan v. United States, 128 S. Ct. 475, 480 (2007) 12 ( While § 921(a)(20) does not define the term civil 13 rights, courts have held, and petitioner agrees, that the 14 civil rights relevant under the above-quoted provision are 15 the rights to vote, hold office, and serve on a jury. ). 16 Bullock s rights to vote and hold office were arguably 17 restored by operation of law. 18 106; N.Y. Civil Rights Law § 79. 19 serve on a jury was not; he was not pardoned; and none of 20 his prior convictions were expunged. 21 § 510(3) ( In order to qualify as a juror a person must not 22 . . . [n]ot have been convicted of a felony. ). See N.Y. Election Law § 5- 5 However, his right to See N.Y. Judiciary Law 1 Accordingly, Bullock cannot establish that his prior 2 convictions are not counted as crime[s] punishable by 3 imprisonment for a term exceeding one year as defined in 18 4 U.S.C. § 921(a)(20). 5 Bullock contends that he should not be penalized under 6 federal law for conduct (possession of ammunition) that he 7 was free to do under state law. 8 As the Seventh Circuit Court of Appeals has observed on 9 similar facts, a federal prosecution for felon in But this is a mere irony. 10 possession of ammunition . . . is in no manner dependent on 11 whether the state in which the crime is committed has 12 enacted a parallel statute criminalizing the same conduct. 13 United States v. Wilson, 437 F.3d 616, 619 (7th Cir. 2006). 14 Obviously, federal law may bar conduct that a state allows. 15 The role of the state in the federal statutory scheme . . . 16 is limited to the determination of whether the defendant is 17 a convicted felon. 18 established, federal law prohibits the possession of either 19 firearms or ammunition. 20 Once the felony conviction is Id. at 619-20. Bullock also asserts that because his prior convictions 21 were for crimes committed in the 1970 s, imposition of a 22 fifteen-year mandatory minimum sentence in this case does 6 1 not serve the congressional purpose of the ACCA to punish 2 dangerous recidivists. 3 irrelevant because the statutory wording at issue is 4 unambiguous. Congress s intent, however, is 5 6 7 II Bullock challenges the denial of his motion for a 8 judgment of acquittal under Federal Rule of Criminal 9 Procedure 29 or a new trial under Federal Rule of Criminal 10 Procedure 33. 11 We review de novo a district court s denial of a Rule 12 29 motion, applying the same standard [for] sufficiency [of 13 the evidence] as the district court. 14 Florez, 447 F.3d 145, 154 (2d Cir. 2006). 15 places a heavy burden on the defendant, whose conviction 16 must be affirmed if any rational trier of fact could have 17 found the essential elements of the crime beyond a 18 reasonable doubt. 19 183, 187 (2d Cir. 2005) (quoting Jackson v. Virginia, 443 20 U.S. 307, 319 (1979)). 21 district court, upon motion by the defendant, to vacate any 22 judgment and grant a new trial if the interest of justice so United States v. That standard United States v. MacPherson, 424 F.3d As to a new trial, Rule 33 allows a 7 1 requires. 2 disturb the district court s findings of fact [on a Rule 33 3 motion] unless [they are] clearly erroneous, and we will not 4 overturn the district court s decision except for an abuse 5 of discretion. 6 (2d Cir. 1993). 7 Fed. R. Crim. P. 33(a). But [w]e will not United States v. Locascio, 6 F.3d 924, 949 Bullock argues that there was insufficient evidence to 8 establish his constructive possession of the ammunition 9 found in the bedroom dresser drawer and that the government 10 proved no more than that Bullock and his fiancée shared the 11 bedroom and that Bullock had access to the dresser. 12 Bullock understates the quantum of evidence, which 13 included: 14 found in the drawer with the ammunition; (2) that the 15 ammunition was discovered in a drawer with men s underwear 16 in a dresser with only men s clothing; and (3) that $1,543 17 cash was found in the drawer, including $30 of pre-recorded 18 buy money given to Bullock a few days earlier. 19 evidence, a rational trier of fact could have found the 20 essential elements of the crime beyond a reasonable doubt. 21 United States v. Hardwick, 523 F.3d 94, 100 (2d Cir. 2008). 22 For the same reason, the district court did not abuse its (1) that correspondence addressed to Bullock was 8 Given this 1 discretion in failing to grant Bullock s Rule 33 motion. 2 3 III 4 Bullock asserts that the jury venire in his case did 5 not represent a fair cross-section of the community, in 6 violation of the Sixth Amendment. 7 that none of the 100 jurors on the venire were African- 8 American or members of any racial minority. 9 Bullock reasserts this argument and presents demographic Bullock objected at trial On appeal, 10 data for two cities (Albany and Binghamton) and one county 11 (Broome County) in the Northern District of New York. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 To prevail on his cross-section claim, Bullock must show (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979). Bullock loses because he has not established any 27 systematic exclusion. 28 Joyner, 201 F.3d 61, 75 (2d Cir. 2000) (denying Sixth Id.; accord United States v. 9 1 Amendment cross-section claim because defendant made 2 absolutely no showing that African Americans were 3 systematically excluded ). 4 explained at trial that in constructing the jury pool, the 5 court drew potential jurors from the rolls of voters and 6 drivers. 7 to make sure that [the] jury pool [wa]s balanced. 8 the district court failed in its attempt to achieve such 9 balance does not detract from the court s demonstrably race- 10 To the contrary, Judge McAvoy The motor vehicle roll was included specifically That neutral approach to juror selection. 11 12 13 IV Finally, we reject Bullock s argument that a sentence 14 of fifteen years for possession of eight rounds of 15 ammunition is so disproportionate as to constitute cruel and 16 unusual punishment under the Eighth Amendment. 17 Eighth Amendment does not require strict proportionality 18 between crime and sentence, but rather forbids only extreme 19 sentences that are grossly disproportionate to the crime. 20 Harmelin v. Michigan, 501 U.S. 957, 960 (Kennedy, J., 21 plurality opinion); see also United States v. Yousef, 327 22 F.3d 56, 163 (2d Cir. 2003) ( The Eighth Amendment forbids 10 [T]he 1 only extreme sentences that are grossly disproportionate to 2 the crime, and, with the exception of capital punishment 3 cases, successful Eighth Amendment challenges to the 4 proportionality of a sentence have been exceedingly rare. 5 (internal quotation marks and citations omitted)). 6 Bullock has one prior conviction for robbery in the 7 first degree with intent to cause serious injury and two 8 convictions for robbery in the first degree with the use of 9 a dangerous weapon. In light of this criminal history, the 10 sentence for possession of ammunition cannot be construed as 11 grossly disproportionate. 12 sentences under the ACCA for offenses similar to Bullock s. 13 See, e.g., United States v. Gamble, 388 F.3d 74, 75-77 (2d 14 Cir. 2004) (per curiam) (affirming sentence of 261 months 15 for defendant arrested for possession of a small quantity of 16 crack cocaine and possession of ammunition clip containing 17 six rounds). 18 19 20 This Court has approved CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. 11
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