United States v. McMahon ( 1999 )


Menu:
  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 7 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    vs.                                                    No. 98-5081
    (D.C. No. 94-CR-176-BU)
    PETER JOSEPH M C MAHON,                               (N.D. Okla.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **
    Mr. McMahon was originally convicted by a jury for two counts of
    possessing a firearm after a former felony conviction, in violation of 
    18 U.S.C. § 922
    (g)(1), and a further count of possessing a firearm in relation to a drug
    trafficking crime, in violation of 
    18 U.S.C. § 924
    (c)(1) & (2). His sentences on
    the § 922(g)(1) counts were enhanced pursuant to 
    18 U.S.C. § 924
    (e) and USSG §
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
    4B1.4 because Mr. McMahon had at least three prior convictions for violent
    felony or controlled substance offenses.
    In an earlier appeal, United States v. McMahon, 
    91 F.3d 1394
     (10th Cir.
    1996), we held that Mr. McMahon’s § 924(c) conviction must be vacated in light
    of Bailey v. United States, 
    516 U.S. 137
     (1995), and remanded the case for
    resentencing. The district court sentenced Mr. McMahon to 235 months
    imprisonment on counts 1 and 2 to run concurrently, as well as a five-year term of
    supervised release. In this appeal, Mr. McMahon challenges the district court’s
    imposition of a five-year term of supervised release instead of a three-year term,
    and the court’s refusal to reduce his offense level for acceptance of responsibility.
    Our jurisdiction arises under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a). We
    affirm.
    Discussion
    A. Term of Supervised Release
    Mr. McMahon argues that the district court should have sentenced him to a
    three-year term of supervised release because the offenses for which he was
    convicted, 
    18 U.S.C. § 922
    (g)(1), were Class C felonies under 
    18 U.S.C. § 3559
    (a)(3). As such, the authorized term of supervised release under 
    18 U.S.C. § 3583
    (b)(2) is no more than three years. He maintains that the court erred by
    -2-
    including the § 924(e) enhancement as part of “the maximum term of
    imprisonment authorized” when classifying the § 922(g)(1) offenses pursuant to §
    3559(a). We disagree.
    In United States v. LaBonte, 
    520 U.S. 751
     (1997), the Supreme Court
    considered the meaning of “maximum term authorized,” as used in 
    28 U.S.C. § 994
    (h), and held that the phrase “must be read to include all applicable statutory
    sentencing enhancements.” 
    Id. at 753
    . Although we acknowledge that the
    context of 
    18 U.S.C. § 3559
    (a) differs from that of 
    28 U.S.C. § 994
    (h), we see no
    reason to depart from a similar “ordinary meaning” reading of § 3559(a).
    According to that statute, an offense is classified according to “the maximum term
    of imprisonment authorized” as a penalty. 
    18 U.S.C. § 3559
    (a). If the maximum
    term is life imprisonment, it is classified as a Class A felony. If the maximum
    term is twenty-five years or more, it is a Class B felony. A term of less than
    twenty-five years but ten or more years qualifies as a Class C felony. See §
    3559(a)(1)-(3). The classification of an offense determines the maximum length
    of a term of supervised release. See 
    18 U.S.C. § 3583
    (b).
    The penalties for violations of 
    18 U.S.C. § 922
    (g) are found in 
    18 U.S.C. § 924
    . Subsection 924(a)(2) authorizes a maximum term of imprisonment of ten
    years. However, for persons who, like Mr. McMahon, have three previous
    convictions for a violent felony or serious drug offense, the minimum term of
    -3-
    imprisonment is fifteen years; thus the maximum term is life. See § 924(e)(1).
    The Supreme Court’s language in LaBonte is apropos here: “Where Congress has
    enacted a base penalty for first-time offenders or nonqualifying repeat offenders,
    and an enhanced penalty for qualifying repeat offenders, the ‘maximum term
    authorized’ for the qualifying repeat offenders is the enhanced, not the base,
    term.” LaBonte, 
    520 U.S. at 759
    .
    The “maximum term of imprisonment authorized” for Mr. McMahon is life
    imprisonment. Therefore, his 
    18 U.S.C. § 922
    (g)(1) offenses should be classified
    as Class A felonies pursuant to 
    18 U.S.C. § 3559
    (a)(1). The district court did not
    err in sentencing Mr. McMahon to a five-year term of supervised release pursuant
    to 
    18 U.S.C. § 3583
    (b)(1).
    B. Acceptance of Responsibility
    Mr. McMahon also challenges the district court’s refusal to reduce his
    offense level for acceptance of responsibility, arguing that the court should have
    considered his post-conviction rehabilitation efforts. The government responds
    that our limited mandate in Mr. McMahon’s earlier appeal, see McMahon, 
    91 F.3d at 1396
    , removed the court’s jurisdiction on remand to consider making an
    adjustment for acceptance of responsibility. We need not consider this argument
    because, even if the district court were authorized to conduct de novo
    -4-
    resentencing, our decision in United States v. Warner, 
    43 F.3d 1335
     (10th Cir.
    1994), precludes consideration of Mr. McMahon’s post-sentencing conduct at
    resentencing. Although “de novo resentencing permits the receipt of any relevant
    evidence the court could have heard at the first sentencing hearing,” 
    id. at 1340
    (quoting United States v. Ortiz, 
    25 F.3d 934
    , 935 (10th Cir. 1994)), “events
    arising after that time are not within resentencing reach.” 
    Id.
     Thus the district
    court did not err in refusing to reduce Mr. McMahon’s offense level based on his
    post-sentencing rehabilitative efforts.
    AFFIRMED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -5-
    

Document Info

Docket Number: 98-5081

Filed Date: 6/7/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021