United States v. William W. Elliott ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1945SI
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
William W. Elliott, * [PUBLISHED]
*
Appellant. *
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Submitted: October 20, 1997
Filed: October 30, 1997
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Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
After a conservation officer encountered William W. Elliott with two
handguns in his van and local law enforcement officers seized an
unregistered AK-47 fully automatic machinegun at Elliott’s home, a jury
convicted Elliott on three counts of being a felon in possession of a
firearm, and one count each of possessing an illegal firearm and failing
to register a firearm. See 18 U.S.C. §§ 922(g)(1) and 922(o)(1) (1994);
26 U.S.C. § 5861(d) (1994). Elliott appeals his convictions and sentence.
We affirm.
In challenging his convictions for being a felon in possession of a
firearm, Elliott
contends he has no valid underlying felony conviction for the purposes of
§ 922(g)(1). Elliott argues his counseled guilty plea to an earlier
Arkansas felony charge is constitutionally infirm because the trial judge
failed to comply with Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). The
holdings of the United States Supreme Court, however, foreclose Elliott’s
collateral attack on his earlier plea-based conviction. See Lewis v.
United States, 445 U.S. 55, 60-65 (1980); see also Custis v. United States,
511 U.S. 485, 496-97 (1994).
Because this Court gave Elliott permission to file a pro se brief,
we now turn to the arguments in Elliott’s brief. See Hoggard v. Purkett,
29 F.3d 469, 472 (8th Cir. 1994) (pro se briefs not accepted when a party
is represented by counsel). Elliott contends his § 5861(d) conviction for
failure to register the machinegun violates due process. Elliott argues
§ 5861(d) was implicitly repealed by the later-enacted § 922(o)(1), which
prohibits possession of a machinegun. Because Elliott can comply with both
statutes by simply refusing to possess the machinegun, we agree with the
Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits that the statutes are
reconcilable. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir.
1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir. 1995);
United States v. Ardoin, 19 F.3d 177, 179-80 (5th Cir. 1994); United States
v. Ross, 9 F.3d 1182, 1193-94 (7th Cir. 1993), vacated on other grounds,
511 U.S. 1124 (1994); United States v. Jones, 976 F.2d 176, 182-83 (4th
Cir. 1992); but see United States v. Dalton, 960 F.2d 121, 123-24 (10th
Cir. 1992). In sum, Elliott was fairly convicted under § 5861(d).
Claiming he never fired the machinegun and did not know it was an
automatic, Elliott also contends the Government failed to prove he
knowingly possessed the weapon. Because Elliott possessed the machinegun
and observed its characteristics, Elliott’s contention is foreclosed by our
holding in United States v. Farrell, 69 F.3d 891, 894 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1283 (1996). We also reject Elliott’s challenge
to his sentence. Our review shows the district court’s guideline sentence
was correct. Finally, we have considered Elliott’s remaining contentions
and find them without merit.
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We affirm Elliott’s convictions and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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