United States v. Grant, No. 13-4302 (4th Cir. 2014)
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Defendant appealed his sentence after pleading guilty to being a felon in possession of ammunition. The court agreed with the district court's decision to use defendant's general court-martial convictions to classify him as an armed career criminal and rejected defendant's argument which primarily relied on the Supreme Court's decision in Small v. United States. Accordingly, the court affirmed the judgment of the district court.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4302 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDDIE GRANT, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:12-cr-00729-CMC-1) Argued: March 26, 2014 Decided: June 3, 2014 Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and HAMILTON, Senior Circuit Judge. Affirmed by published opinion. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Senior Judge Hamilton joined. ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South Carolina, for Appellant. Stacey Denise Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. FLOYD, Circuit Judge: A felon jury in found Appellant possession of Freddie Grant ammunition. guilty The of being district a court classified Grant as an armed career criminal, in part due to two general court-martial convictions for violent crimes, calculated his Sentencing Guidelines range accordingly. now appeals, because the contending district that court we erred should by vacate using his the and Grant sentence court-martial convictions to classify him as an armed career criminal. For the reasons we outline below, we affirm. I. On August 18, 2012, the Richland County Sheriff s Department (RCSD) in Columbia, South Carolina, received a report that a fifteen-year-old girl had disappeared. RCSD identified Grant as a suspect in the disappearance and obtained a search warrant for his home in Elgin, South Carolina. the Elgin Police Department executed the When RCSD and search warrant, investigators seized two boxes of ammunition, which federal law prohibited Grant a felon from §§ 922(g)(1); 924(a)(2), (e). Bureau of Investigation possessing. See 18 U.S.C. On August 26, 2012, the Federal arrested Grant for being a felon in possession of ammunition, and a grand jury ultimately returned an indictment charging him with the same offense. 2 A jury convicted Grant on January 15, 2013. A probation officer prepared a Presentence Investigation Report (PSR), which identified Grant convictions for possession with as an armed violent intent career felonies to criminal and distribute to two conviction one due for cocaine. conviction is not at issue in this case. The drug The two violent felony convictions occurred in 1980, while Grant was in Korea serving in the Army. First, a general court-martial 1 convicted Grant of assault by inflicting grievous bodily harm, in violation of UCMJ article 128, after he cut a fellow servicemember on the face with a razor blade. general violation court-martial of provision). UCMJ See 10 U.S.C. § 928(b)(2). convicted article Grant s 134. kidnapping Grant See of id. conviction Second, a kidnapping, § 934 stemmed in (catch-all from an incident during which he overtook two military officials who were transporting him while he was in custody for the assault. Grant wrested an assault rifle 1 from one of the officials, The Uniform Code of Military Justice (UCMJ) provides for three types of courts-martial: general, special, and summary. 10 U.S.C. § 816. A general court-martial is the highest court level and has jurisdiction to try individuals for all crimes outlined in the UCMJ, including capital crimes. Id. § 818. Special courts-martial can try individuals for noncapital UCMJ offenses but are limited in the types of punishment they may impose. For example, special courts-martial cannot require dishonorable discharge. Id. § 819. Summary courts-martial adjudicate relatively minor offenses and have jurisdiction over enlisted individuals, not military officers. Id. § 820. 3 kidnapped the officials at gunpoint, and forced them to drive to another location. Due to these convictions, Grant was dishonorably discharged from the Army and sentenced to eight years and nine months hard labor at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. The PSR assigned Grant an offense level of 33. Due to Grant s classification as an armed career criminal, his criminal history category increased from I to IV. These calculations resulted in a Sentencing Guidelines range of 188 to 235 months imprisonment. § 3553(a) After the district court considered the 18 U.S.C. factors, it sentenced Grant to 212 months imprisonment. II. Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and section 4B1.4 of the Guidelines, an individual who violates § 922(g) and has three previous convictions by any court referred to in section 922(g)(1) . . . for a violent felony or occasions a serious different career criminal. drug from one offense, another or both, qualifies committed as on an armed 18 U.S.C. § 924(e)(1) (emphasis added). Grant contends that his court-martial convictions do not constitute predicate convictions for enhancements under the ACCA because a general court-martial does not constitute any court. 4 We have jurisdiction under 28 U.S.C. § 1291 and review de novo the legal conclusions underpinning the district court s determination that Grant is an armed career criminal. See United States v. Davis, 689 F.3d 349, 355 (4th Cir. 2012) (per curiam). In support of his argument that a general court-martial is not any court under the ACCA, Grant relies primarily on the Supreme Court s decision in Small v. United States, 544 U.S. 385 (2005). Small addressed whether a conviction in a Japanese court could serve as the felony underlying a conviction pursuant to 18 U.S.C. § 922(g)(1), which makes it unlawful for any person . . . who has previously been convicted in any court of[] a crime punishable by imprisonment year to possess a firearm. for a term See 544 U.S. at 387. exceeding one Because the ACCA provision at issue in this case invokes any court referred to in section 922(g)(1), 18 U.S.C. § 924(e), courts interpretations of § 922(g)(1) are relevant here. The Court began its analysis in Small by noting that even though the word any demands a broad interpretation, we must look beyond that word itself to ascertain the meaning of any court. 544 U.S. at 388. To frame this linguistic inquiry, the Court relied on the legal presumption that Congress ordinarily intends its application. foreign statutes to have domestic, Id. at 388-89. convictions differ not extraterritorial, The Court then explained how from 5 domestic convictions in important ways. Id. at 389. First, other countries may criminalize conduct that is legal in the United States. Second, foreign American legal systems understanding of may be fairness. inconsistent For example, with they treat men and women differently in important respects. 389-90. And third, foreign courts may punish Id. an may Id. at conduct more severely than domestic courts would punish the same conduct. See id. at 390. Due to these potential differences, the Court concluded that foreign courts somewhat less reliably identif[y] dangerous utilizing individuals, foreign and, convictions that provision s aim. therefore, under § determined 922(g)(1) that contradicted See id. In addition to relying on these differences between foreign and domestic convictions, the Court noted that other provisions in the same statutory scheme as § 922(g)(1) demonstrated that Congress intended to limit any court to domestic courts. id. at 391-92. See For example, § 921(a)(20)(A) allows individuals to possess guns after they commit Federal or State antitrust or business reasoned would that allow business regulatory reading offenses. any individuals regulatory Id. at 391. court to include convicted of domestic crimes to possess guns The foreign Court courts antitrust but or prevent individuals with equivalent foreign convictions from doing so. Id. Due to the differences between foreign and domestic courts, 6 and because provisions such as § 921(a)(20)(A) illustrated that Congress did not intend for § 922(g)(1) to encompass foreign convictions, the Court held that any court did not include foreign courts. Id. at 394. Grant contends that some of the same reasons that led the Supreme Court not to view a foreign court as any court under § 922(g)(1) support not considering a general court-martial as any court under the ACCA. just as there are Specifically, Grant argues that, differences between foreign and domestic courts that justify not precluding individuals from possessing firearms based on their foreign convictions, there are also differences between general courts-martial and civilian courts that warrant not classifying individuals criminals due to their military convictions. contends that these differences render as armed career In essence, Grant courts-martial, like foreign courts, inconsistent with an American understanding of fairness. Small, 544 U.S. at 389. Military courts draw their constitutional Article I rather than Article III. 395 U.S. 258, Solorio v. officer must 261-62 United (1969), States, convene a U.S. general military officer presides. from See O Callahan v. Parker, overruled 483 authority 435 on other (1987). court-martial, grounds A over by military which a 10 U.S.C. §§ 822(a); 825(a)-(b). Substantially different rules of evidence and procedure apply 7 in military trials. general O Callahan, 395 U.S. at 264. court-martial in contrast to a civilian necessarily comprised of the accused s peers. Notably, a jury is not When a general court-martial tries an enlisted servicemember on active duty, the court-martial need not include unless the accused so requests. that enlisted panel. servicemembers enlisted servicemembers Even then, the UCMJ requires comprise See 10 U.S.C. § 825(c)(1). only one-third of Commissioned officers on active duty are always eligible to serve on courts-martial. § 825(a). the Id. Courts-martial in noncapital cases may convict if two-thirds of the panel members agree, id. § 852(b), but, like civilian courts, they must find reasonable doubt, id. § 851(c)(1). the accused guilty beyond a The Supreme Court attributed these differences between courts-martial and civilian courts to the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise, rendering the trial of soldiers to maintain discipline . . . merely incidental to an army s primary fighting function. See O Callahan, 395 U.S. at 262-65 (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18 (1955)). Despite these contrasts between courts-martial and civilian courts, two of our sister circuits have held that courts-martial constitute courts under the ACCA and § 922(g)(1). In United States v. Martinez, 122 F.3d 421 (7th Cir. 1997), the Seventh 8 Circuit determined that a court-martial was a court for purposes of the ACCA for three reasons. definition of the word First, relying on the dictionary any, the court concluded that the adjective any expand[ed] the term court to encompass all courts, including courts-martial. explain above, Small now See id. at 424. forecloses this line But, as we of reasoning because, in that case, the Supreme Court viewed any as an ambiguous term. Second, the Seventh Circuit explained that the Sentencing Guidelines provide that [s]entences resulting from military offenses are counted if imposed by a general or special court[-]martial. that Guidelines computing a Id. (quoting U.S.S.G. § 4A1.2(g)). provision defendant s applies criminal to the However, instructions history, not to for the instructions for determining which defendants qualify as career offenders. 2 See U.S.S.G. § 4A1.2. Third, the court relied on the Sixth Circuit s decision in United States v. Lee, 428 F.2d 917 (6th Cir. 1970). Martinez, 122 F.3d at 424. In Lee, the court explained that the judgments of courts-martial are to be accorded the finality and conclusiveness 2 as to the issues At the time that the Supreme Court decided Small, the same provision specified that [s]entences resulting from foreign convictions are not counted, but may be considered under § 4A1.3 (Adequacy of Criminal History Category). Accordingly, Small would have been unnecessary if these criminal history principles applied to § 922(g). 9 involved which attend the judgments of a civil court in a case of which it may legally take cognizance. 428 F.2d at 920 (quoting Grafton v. United States, 206 U.S. 333, 345 (1907)). The Ninth Circuit concluded that courts-martial qualify as courts under § 922(g)(1) in United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993). Like the Seventh Circuit, the Ninth Circuit relied on Lee for the proposition that general courtsmartial are within the purview of any court. 70. See id. at 969- The Ninth Circuit also based its decision on cases, which Small overruled, holding that foreign convictions can support felon-in-possession diminishes the charges. degree to Id. which we at can 968. In turn to sum, Small Martinez and MacDonald for guidance as we decide this case. Because the Supreme Court indicated that any court has an ambiguous meaning, we may rely on other signals of congressional intent, such as the legislative history, to interpret the ACCA. See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 53 (4th Cir. 2011). [s]tatistics When Congress indicate passed that the nearly ACCA, 25 it million noted that American households 3 out of every 10 were affected by crimes involving theft or violence. It has also become increasingly clear that a large percentage of these crimes are committed by a very small percentage of repeat offenders. 10 H.R. Rep. No. 98-1073, at 1, reprinted in 1984 U.S.C.C.A.N. 3661, 3661. 3 ACCA to increase the participation Congress enacted the of the federal law enforcement system in efforts to curb armed, habitual (career) criminals. Id. The Supreme Court summarized how the ACCA achieves Congress s goal in Begay v. United States: As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender a violent criminal or drug trafficker possesses a gun. In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun. 553 U.S. 137, 146 (2008) (citation omitted). Including court- martial convictions for violent felonies in the armed career criminal tabulation furthers Congress s objective of identifying and deterring career offenders. 3 This legislative history stems from an earlier incarnation of the statute, which imposed stiffer penalties when the defendant had three previous convictions for robbery or burglary. See Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1802, 98 Stat. 1937. It did not premise armed career criminal classification on violent felonies or drug offenses. However, the same concerns that motivated the original statute spurred Congress s decision to expand what crimes could serve as predicate offenses under the ACCA. See Taylor v. United States, 495 U.S. 575, 587-88 (1990) ( [T]hroughout the history of the enhancement provision, Congress focused its efforts on career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons. ). 11 The concerns that the Supreme Court raised in Small do not compel us to deviate from the outcome that legislative history supports. Grant has not highlighted any ways in which using violent felony convictions by general courts-martial to classify individuals as armed career criminals would conflict with the ACCA s provisions. dissimilarities Although Grant correctly identifies several between courts-martial and civilian courts, these differences do not rise to the level of the contrasts between domestic and foreign courts that Small highlighted. instance, in support of its conclusion that foreign For legal systems may be inconsistent with an American understanding of fairness, the Supreme Court quoted a report from the U.S. Department of State describing failures of due process and citing examples in which the testimony of one man equals that of two women. Small, 544 U.S. at 389-90. extreme the examples Court used and the In light of the lack of incongruity between court-martial convictions and the statutory scheme at issue, we doubt the Supreme Court would interpret Small to prevent court-martial convictions from qualifying as predicate offenses under the ACCA. We consequently decline to do so. III. For decision these to use reasons, Grant s we agree general 12 with the district court-martial court s convictions to classify him as an armed career criminal. We therefore affirm Grant s sentence. AFFIRMED 13
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