DocketNumber： 95-1720
Filed Date： 5/1/1996
Status： Precedential
Modified Date： 3/3/2016
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 95-1720
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES H. ABERNATHY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Edward F. Grourke with whom Finan & Grourke was on brief for ___________________ ________________
appellant.
Sheldon Whitehouse, United States Attorney, for appellee. __________________ ______________________
____________________
April 30, 1996
____________________
ALDRICH, Senior Circuit Judge. James H. Abernathy, ____________________
driving a Massachusetts registered car in Providence, Rhode
Island, was stopped by two policemen, one of whom, when he
peered into defendant's vehicle, observed the butt of a .45
caliber Colt semi-automatic pistol sticking out from under
the driver's seat. Indicted as a result, defendant initially
pleaded guilty to two counts: Count I, as a convicted felon
carrying a firearm that had been in interstate commerce, in
violation of 18 U.S.C. 922(g)(1); Count II, carrying an arm
that had been in interstate commerce with an obliterated
serial number, in violation of 18 U.S.C. 922(k). Defendant
was sentenced to 110 months imprisonment followed by three
years supervised release on Count I, and to a concurrent 60
months imprisonment on Count II. Over one year later, upon
defendant's motion, the entire sentence was vacated in order
to reinstate his right to pursue a direct appeal, which had
been dismissed for want of prosecution. Thereafter, prior to
resentencing, defendant moved to withdraw his plea. The
court denied the motion and resentenced defendant to the
original terms. This appeal ensued, raising the following
points: (1) the lawfulness of the stop; (2) whether defendant
should have been allowed to withdraw his pleas on both
counts; and (3) the constitutionality of the statutes
proscribing his conduct. We affirm on (1) and (3). On (2)
we reverse and vacate the sentence with respect to Count II.
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The Arrest __________
The officers were in an unmarked car, in plain
clothes. Some of the evidence might support defendant's
claim that this was an unlawful investigatory stop. Ample
evidence, however, supports the district court's finding of a
justified traffic violation stop, including testimony that
defendant travelled in the wrong lane of traffic and then ran
a stop sign. No purpose would be served in discussing the
district court's careful analysis and reasonable credibility
resolutions. The fact that the officers were on an
undercover investigatory narcotics detail does not mean that
they could not lawfully make a proper traffic stop.
Withdrawal of the Plea ______________________
Withdrawal of a guilty plea prior to sentencing may
be granted for "fair and just reason." See Fed. R. Crim. P. ___
32(e) (1994); United States v. Cotal-Crespo, 47 F.3d 1, 3 _____________ ____________
(1st Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 94, 133 _____________
L.Ed.2d 49 (1995). After sentencing, the defendant must show
a defect attending the plea that amounts to a "miscarriage of
justice," or "an omission inconsistent with the rudimentary
demands of fair procedure." United States v. Lopez-Pineda, ______________ ____________
55 F.3d 693, 697 (1st Cir.) (internal quotations omitted),
cert. denied, ___ U.S. ___ 116 S.Ct. 259, 133 L.Ed.2d 183 ____________
(1995). Although the United States attaches great
significance to the category to which defendant ought to be
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assigned, whether defendant's plea was knowing and voluntary
within the meaning of Criminal Rule 11 is the most
significant factor under either standard. United States v. _____________
Allard, 926 F.2d 1237, 1243 (1st Cir. 1991). ______
With respect to Count I this is a routine case --
the court was well warranted in finding no misunderstanding
of the charge by defendant, nor was there any other flaw in
the plea proceedings. Fed. R. Crim. P. 11(a)-(f).
There is a serious question, however, with respect
to Count II. From the record, it appears that the court, as
well as counsel for both the government and the defendant,
understood that the government was not obliged to establish
actual knowledge on defendant's part that the serial number
had been obliterated at the time of his possession,1 and
communicated this misunderstanding to the defendant. We find
this failure to apprise defendant of the elements of the
charge fundamentally inconsistent with fair procedure in an
____________________
1. While, regrettably, some of our prior cases seem unclear,
cf. United States v. Chapdelaine, 989 F.2d 28, 33 (1st Cir. ___ _____________ ___________
1993), cert. denied, ___ U.S. ___, 114 S.Ct. 696, 126 L.Ed.2d ____________
663 (1994), United States v. Smith, 940 F.2d 710, 713 (1st _____________ _____
Cir. 1991), it is indisputable that actual knowledge has been
a necessary element of the crime at least since passage of
the Firearms Owners' Protection Act, Pub. L. No. 99-308,
104, 100 Stat. 456, 456 (1986), which modified the
attendant penalty provision to require knowing violation of _______
922(k) in order for criminal sanctions to attach. 18
U.S.C. 924(a)(1)(B). See United States v. Hooker, 997 F.2d ___ _____________ ______
67, 72 (5th Cir. 1993); United States v. Haynes, 16 F.2d 29, _____________ ______
34 (2nd Cir. 1994). See also United States v. De Leon Ruiz, ___ ____ _____________ ____________
47 F.3d 452, 454 (1st Cir. 1995); United States v. Lanoue, 71 _____________ ______
F.3d 966, 983 (1st Cir. 1995).
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acceptance of plea proceeding. As the record contains strong
support for defendant's claim that he lacked knowledge of the
obliteration -- at the very least it does not establish
otherwise -- we cannot say the error was harmless. Compare _______
United States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995). See _____________ ________ ___
Fed. R. Crim. P. 11(h). It follows that defendant has a
right to withdraw his plea on Count II.
Defendant's tangential suggestion that the court's
imposition of a two-level enhancement to his offense level
based on the obliteration also requires reversal ignores the
fact that this enhancement explicitly applies "whether or not
the defendant knew or had reason to believe that the firearm
. . . had an altered or obliterated serial number." USSG
2K2.1(b)(4), comment. (n.19). See United States v. Schnell, ___ _____________ _______
982 F.2d 216, 220-21 (7th Cir. 1992); United States v. ______________
Williams, 49 F.3d 92, 93 (2nd Cir. 1995). ________
Having in mind that the 60-month sentence imposed
on Count II was to be served concurrently with the 110 month
sentence on Count I, the government has suggested that there
may be possible advantages to defendant in not withdrawing
the plea. This question is for defendant to determine when
returned to the district court, and we express no opinion.
Constitutionality of the Statutes _________________________________
We have recently considered and rejected similar
arguments to those raised by defendant challenging the power
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of Congress under the Commerce Clause to enact the statutes
underlying the charges against him, in light of the Supreme
Court's ruling in United States v. Lopez, ___ U.S. ___, 115 ______________ _____
S.Ct. 1624, 131 L.Ed.2d 626 (1995). See United States v. ___ _____________
Bennett, 75 F.3d 40, 49 (1st Cir. 1996) (challenge to _______
constitutionality of 18 U.S.C. 922(g)(1) is "hopeless");
United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. _____________ _____________
1995) (Lopez does not invalidate 18 U.S.C 922(k)). _____
Affirmed in part, reversed in part, and remanded. ________ ________ ________
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United States v. Lopez ( 1995 )
United States v. Todd Williams ( 1995 )
United States v. Edward T. Smith, Jr. ( 1991 )
United States v. Ferguson ( 1995 )
United States v. James E. Schnell ( 1992 )
United States v. Raymond P. Allard ( 1991 )
United States v. De Leon ( 1995 )
United States v. Diaz-Martinez ( 1995 )
United States v. Cotal-Crespo ( 1995 )
United States v. George Chapdelaine ( 1993 )
United States v. Lopez-Pineda ( 1995 )