CHARLES A. KARLIN, PETITIONER V. UNITED STATES OF AMERICA No. 88-5858 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A13) is reported at 852 F.2d 968. JURISDICTION The judgment of the court of appeals was entered on July 20, 1988. A petition for rehearing was denied on September 14, 1988. The petition for a writ of certiorari was filed on November 11, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a search of the passenger compartment of petitioner's van following his arrest for burglary violated the Fourth Amendment. 2. Whether petitioner's sentence for possession of a firearm by a previously convicted felon was improperly enhanced under the now-repealed ARmed Career Criminal Act of 1984, because it was based on an allegedly void state burglary conviction. 3. Whether petitioner's second state burglary conviction was adequately proved for purposes of enhancing his sentence under the Armed Career Criminal Act of 1984. 4. Whether petitioner's enhanced sentence violated the Ex Post Facto Clause or was fundamentally unfair. 5. Whether the Armed Career Criminal Act of 1984 constituted a sentence enhancement provision rather than a separate offense. 6. Whether separate sentences were properly imposed on petitioner for engaging in the business of dealing in firearms without a license and for possessing a firearm after having been convicted of a felony. 7. Whether the evidence was sufficient to sustain petitioner's conviction for engaging in the business of dealing in firearms without a license. STATEMENT On June 3, 1986, a grand jury sitting in the Eastern District of Wisconsin returned an indictment charging petitioner with engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. 922(a)(1) (Count 1), and six counts of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. App. (Supp. II) 1202(a) (Counts 2-7). After a jury trial, petitioner was convicted on Counts 1 and 7 and was acquitted on Counts 2 through 6. He was sentenced to concurrent terms of five years' imprisonment on Count 1 and 15 years' imprisonment on Count 7. 1. The first six counts of the indictment were based on petitioner's dealings with Donald Chaon, a Wisconsin gun collector. The evidence at trial showed that petitioner sold about 15 firearms to Chaon between November 8, 1984, and November 11, 1985. Chaon paid cash or traded other items, such as collectible coins, for the firearms. During that period, petitioner also attempted to sell other firearms to Chaon, who declined to purchase them for various reasons, including their high price. Chaon collected various items and considered petitioner his "picker" -- a person who scouts for collectible items and sells them to a collector. Chaon in turn occasionally sold or traded firearms to other collectors. The firearms were all manufactured outside the State of Wisconsin. Pet. App. A3. Count 7 of the indictment was based on petitioner's possession of a firearm on December 19, 1985, when he was arrested on suspicion of burglary. That day, a police officer received reports of a burglary suspect being chased by citizens. When the officer arrived at a parking lot, he found two citizens standing over petitioner, who was lying face down on the ground with his foot inside the open driver's door of a van. The citizens told the officer that petitioner was the man they had chased and that one of them had removed petitioner from the van. The officer arrested petitioner, handcuffed him, brought him to his feet, patted him down, and placed him in the rear seat of the officer's patrol car. The officer then searched the van and found a .38 caliber revolver inside a stocking cap under the driver's seat. Pet. App. A3-A4. 2. With respect to the firearm offense set forth in Count 7, the indictment charged that petitioner was subject to enhanced penalties under the Armed Career Criminal Act, 18 U.S.C. App. (Supp. II) 1202(a), because he had previously been convicted of three burglaries. /1/ The indictment charged that petitioner had the following three prior convictions for burglary: (1) a conviction on April 4, 1966, in the County Court of Manitowic County, Wisconsin; (2) a conviction on October 11, 1968, in the County Court of Manitowic County, Wisconsin; and (3) a conviction on August 1, 1978, in the County Court of Dodge County, Wisconsin. Before trial, the government and defense counsel stipulated that petitioner had been convicted of the third burglary on August 1, 1978, and that evidence of the two other convictions would not be presented to the jury. They further stipulated that the fact of petitioner's three previous convictions was not an element of the offense to be proved at trial, but rather was a requirement to be established at sentencing in order to invoke the enhanced penalties of Section 1202(a). At sentencing, the government established that petitioner previously had been convicted of the three burglaries referred to the indictment. The district court accordingly found that petitioner was subject to the enhanced sentencing provisions of Section 1202(a), and it imposed sentence on Count 7 in accordance with the statute. Pet. App. A7-A8. 3. The court of appeals affirmed (Pet. App. A1-A13). The court first rejected (id. at A4-A7) petitioner's claim that the Fourth Amendment required the suppression of the .38 caliber revolver found in his van that formed the basis for his conviction on Count 7. Relying on the bright-line rule of New York v. Belton, 453 U.S. 454 (1981), the court held (id. at A4-A5) that the revolver had been properly seized during a valid search of the van incident to petitioner's arrest. The court found (id. at A7) that "the arresting officer followed reasonable procedure in securing custody of (petitioner), and then proceeding with a search of the passenger compartment of the van into which (petitioner) might have reached at the time of the arrest." The court accordingly concluded (ibid.) that "under Belton, such a search is deemed reasonable, without determining whether the officer had rendered (petitioner) incapable of reaching into the van." The court of appeals next rejected (Pet. App. A7-A8) petitioner's argument that the Armed Career Criminal Act of 1984 created a new and separate firearm possession offense that requires proof of three previous burglary convictions as an element of the offense. Following its decision in United States v. Pirovolos, 844 F.2d 415 (7th Cir. 1988), the court ruled (Pet. App. A8) that the Armed Career Criminal Act merely established an enhanced penalty for armed repeat offenders and did not create a separate offense. The court accordingly concluded (ibid.) that the prior convictions did not have to be proved in evidence at trial, because the task of determining whether the convictions satisfied the enhancement provisions of the statute was for the district court as part of the sentencing process. The court of appeals rejected (Pet. App. A9-A11) petitioner's claims that his 1966 and 1968 burglary convictions could not serve as predicate prior convictions for purposes of enhancing his sentence under the Armed Career Criminal Act. The court first ruled (Pet. App. A9) that petitioner's 1966 conviction was not void and could properly be used to enhance his sentence. The court also found (id. at A10) that the government had adequately established the fact of the 1968 conviction, even though the government was unable to produce a certified copy of the judgment of conviction. The court also concluded (id. at A11) that the age of the two convictions did not disqualify them from being used to enhance petitioner's sentence. The court of appeals also rejected (Pet. App. A11) petitioner's claim that the enhanced penalties of the Armed Career Criminal Act operated as an ex post facto law by adding new penal consequences to his three previous burglary convictions. Relying on Gryer v. Burke, 334 U.S. 728 (1948), the court concluded (Pet. App. A11) that "the provision is not invalidly retroactive because it is not an additional penalty for the offenses committed before its enactment, but rather an increased penalty for the offense which occurred after enactment." Finally, the court of appeals rejected (pet. App. A13) petitioner's claim that his separate sentences on Counts 1 and 7 constituted multiple punishment in violation of the Double Jeopardy Clause. The court of appeals first observed (ibid.) that the convictions on Counts 1 and 7 were based on two different incidents because "the weapon involved in Count 7 was not involved in Count 1, charging dealing." Applying the test of Blockburger v. United States, 284 U.S. 299 (1932), the court also concluded (Pet. App. A13) that separate sentences would be permissible on Counts 1 and 7 even if the charges arose out of the same incident, because "Section 1202(a)(1) required proof of a previous conviction of felony, which is not required under Section 922(a)(1)" and "Section 922(a)(1) requires proof of engaging in the business of dealing in firearms, which was not required under Section 1202(a)(1)." ARGUMENT In this Court, petitioner renews each of the challenges he raised in the court of appeals to his conviction and sentence on Count 7. He also contends that the evidence was insufficient to sustain his conviction on Count 1. 1. Petitioner first claims (Pet. 3-9) that the .38 caliber revolver that underlies his conviction on Count 7 for possession of a firearm should have been suppressed because it was found during an illegal search following his arrest. The court of appeals correctly concluded (Pet. App. A4-A7) that the validity of the search of petitioner's van is controlled by this Court's decision in New York v. Belton, 453 U.S. 454 (1980). In Belton, this Court adopted a bright-line rule "that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile * * * (and) may also examine the contents of any containers found within the passenger compartment" (id. at 460; footnotes omitted). Here, the police officer arrested petitioner for burglary after petitioner had been removed from his van by the citizens who had pursued him. After petitioner was arrested, the police officer searched the van and found the .38 caliber revolver inside a stocking cap under the driver's seat. And as petitioner concedes (Pet. 4), the search took place no more than "several minutes" after he was arrested. Accordingly, the search of the passenger compartment of petitioner's van following his arrest falls squarely within the scope of the searches incident to arrest that are allowed under Belton's bright-line rule. There is no merit to petitioner's claim that the Belton rule does not apply here because petitioner was handcuffed and placed in the squad car before the police officer searched his van, while the occupants of the car in Belton were not similarly restricted. As the court of appeals correctly noted (Pet. App. A5), "(i)f those differences in degree are to control, the Court's preference (in Belton) for a straightforward rule for guidance of police officers and avoidance of hindsight determinations in litigation would be frustrated." Indeed, on the facts of Belton, it is clear that the occupants had no real access to the car as it was being searched, since they were outside the car, separated on the highway, and had already been arrested. The Court in Belton upheld the search not because the occupants actually had access to the passenger compartment of the car, but rather because "'(a) single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests in the specific circumstances they confront'" (453 U.S. at 458 (quoting Dunaway v. New York, 442 U.S. 200, 213-214 (1979)). The Court therefore made clear that it was adopting a categorical rule allowing a search of the passenger compartments of vehicles even when there was no significant likelihood that the occupants would gain access to weapons or evidence inside the vehicle. For that reason, there is no merit in petitioner's argument that the search of his van was not a valid search incident to arrest under the "immediate control" test of Chimel v. California, 395 U.S. 752 (1969), because he no longer had access to the passenger compartment of the van after being handcuffed and placed in the police squad car. The Court in Belton made plain that its bright-line rule authorizing the search of a passenger compartment and any containers found in it incident to the occupant's arrest "determine(s) the meaning of Chimel's principles in this particular and problematic context" (453 U.S. at 460 n.3). Indeed, the Court in Belton limited the scope of a permissible search to the passenger compartment because "(o)ur reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite(m)'" (id. at 460). Petitioner likewise errs in relying (Pet. 7) on Michigan v. Long, 463 U.S. 1032 (1983), in challenging the search incident to arrest here. In Long, this Court merely held that a protective search of the passenger compartment of a car during a Terry stop is "limited to those areas in which a weapon may be placed or hidden" and requires that the police officer have a reasonable suspicion that "the suspect is dangerous and * * * may gain immediate control of weapons" (463 U.S. at 1049). Indeed, the Court in Long expressly noted that "the 'bright line' (rule of) Belton clearly authorizes * * * a search (of the passenger compartment of an automobile) whenever officers effect a custodial arrest." The Court distinguished the protective searches permitted during a Terry stop from the searches incident to arrest allowed by Belton because "(a)n additional interest exists in the arrest context, i.e., preservation of evidence, and this justifies an 'automatic search'" (id. at 1049 n.14). 2. Petitioner next renews his contention (Pet. 9-11) that his 1966 burglary conviction should not have been counted as a predicate conviction for purposes of enhancing his sentence under the Armed Career Criminal Act of 1984, because the conviction was void under state law. Petitioner was 20 years old on April 4, 1966, when he was convicted in the County Court of Manitowoc County, Wisconsin, of a burglary committed while he was 19 years old. Pet. App. A9. He argues that the county court lacked jurisdiction over him at that time because he had previously been found delinquent and had been committed to the State Department of Public Welfar in juvenile proceedings in 1961. Petitioner asserts that the county court lacked jurisdiction to try him even though he was over 18 years old, because the juvenile court had exclusive jurisdiction over him until he reached 21 years of age and did not cede its jurisdiction to the county court. He therefore contends that his 1966 conviction was void and cannot be used to enhance his sentence. The court of appeals properly rejected petitioner's claim (Pet. App. A9). As the court of appeals pointed out (ibid.), the state court had refused to set aside petitioner's 1966 conviction on the very same grounds in 1980. The state court had concluded that although the state statutes permitted the Department of Public Welfare to exercise custodial control over a child until the age of 21, the statute also expressly provided that continuing jurisdiction for custody purposes "shall not prevent * * * a criminal court from taking jurisdiction of a person eighteen or over who is alleged to have violated a state or federal law." Wis. Stat. Section 48.34(4) (1965). Because petitioner was over 18 years old when he committed the burglary, the court of appeals correctly concluded that petitioner's 1966 conviction was not void and could be used to enhance his sentence under Section 1202(a)(1). 3. Petitioner also renews his contention (Pet. 11-14) that his 1968 burglary conviction could not be counted as a predicate felony for purposes of enhancing his sentence under section 1202(a)(1), because the fact of the conviction was not established by a certified copy of the judgment of conviction. That contention is devoid of merit. The government was unable to produce a certified copy of petitioner's 1968 judgment of conviction for burglary because the state records had been misplaced. As the court of appeals properly observed, however, there is "no principle making the judgment of conviction the exclusive means by which the fact of conviction may be proved" (Pet. App. A10; footnote omitted). Here, the fact of petitioner's 1968 conviction was established by the transcript of the arraignment and sentencing proceedings dated October 11, 1968, at which petitioner pleaded guilty to all four counts of an information; a copy of the information; and the authentication sheet signed by the clerk of the court and the presiding state judge. Indeed, the court of appeals emphasized that "(t)he occurrence of the 1968 conviction of burglary is very clear" (id. at A10 n.6). The court therefore correctly concluded that the 1968 conviction could properly be considered for the limited purpose of enhancing petitioner's sentence under Section 1202(a)(1). 4. Petitioner next claims (Pet. 14-20) that the use of the three prior felony convictions to enhance his sentence under Section 1202(a)(1) is fundamentally unfair and violate the Ex Post Facto Clause. a. Petitioner first argues (Pet. 14-15) that the use of his 1966 and 1968 convictions to enhance his sentence under Section 1202(a)(1) is unfair because the convictions are too old. As the court of appeals concluded (Pet. App. A11), however, those convictions may properly be considered for purposes of enhancing petitioner's sentence under Section 1202(a)(1), because the statute itself placed no time limitation on the age of previous convictions that could be considered. b. Petitioner also argues (Pet. 15) that application of the 15-year minimum sentence of Section 1202(a)(1) violates the Ex Post Facto Clause because the enhanced sentencing provision was added after petitioner had committed the three burglaries on which his enhanced sentence was based. The court of appeals, however, properly relied on Gryer v. Burke, 334 U.S. 728, 732 (1948), in concluding that "the provision is not invalidly retroactive because it is not an additional penalty for offenses committed before its enactment, but rather an increased penalty for the offense which occurred after its enactment" (Pet. App. A11). c. Petitioner next contends (Pet. 15-16, 19-20) that his conviction under Section 1202(a)(1) violates the Ex Post Facto Clause because the firearm he possessed had traveled in interstate commerce before the date that Section 1202(a)(1) was enacted. That contention is frivolous. Petitioner's possession of the firearm, the actus reus of the offense, occurred after Section 1202(a)(1) was enacted; the statute merely requires that the firearm traveled in interstate commerce at some time in the past, not that the interstate travel occurred after the effective date of the statute. See United States v. D'Angelo, 819 F.2d 1062, 1065-1066 (11th Cir. 1987); United States v. Woods, 696 F.2d 566, 571-572 (8th Cir. 1982); United States v. Hopkins, 529 F.2d 775, 777 (8th Cir. 1976), cert. denied, 431 U.S. 965 (1977). Cf. Scarborough v. United States, 431 U.S. 563 (1977). d. Petitioner also contends (Pet. 16-19), for the first time in this Court, that his 1966 burglary conviction could not be used as a predicate conviction to enhance his sentence under Section 1202(a)(1), because his 1966 conviction was not for "burglary" within the meaning of Section 1202(a). That contention, however, is based on petitioner's mistaken assertion (Pet. 19) that the version of Section 1202(a) applicable to this crime failed to define the term "burglary." To the contrary, Section 1202(c)(9) of the 1984 Act expressly provided that "'burglary' means any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct consituting a Federal or State offense." Since petitioner concedes (Pet. 17) that his 1966 conviction was based on conduct that constituted an offense under the Wisconsin burglary statute, that conviction was plainly a predicate previous conviction for burglary within the meaning of Section 1202(a)(1). /2/ 5. Petitioner next renews his contention (Pet. 20-27) that his sentence on Count 7 is unlawful because the Armed Career Criminal Act created a separate offense, rather than simply enhancing the penalty for an existing crime. In rejecting that contention, the court of appeals adopted the view of all but one of the circuits that have addressed the issue and concluded that "'the additional (robbery or burglary) convictions were relevant only for sentencing; admission at trial of evidence of multiple convictions not only would be unnecessary but also would be prejudicial'" (Pet. App. A8 (quoting United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir. 1988)). Although petitioner is correct that there is a conflict among the courts of appeals on this question, that conflict is of only historical interest and does not warrant review by this Court. /3/ The question is of no continuing importance, because the Armed Career Criminal Act of 1984 was repealed and replaced as of November 15, 1986, by the Career Criminal Amendments Act of 1986 (see note 2, supra). The new statute, 18 U.S.C. 924(e)(1), clearly constitutes an enhancement provision, and does not even arguably create a new offense. /4/ The question presented in the petition therefore will not arise in the case of any offenses committed after November 15, 1986. This Court has recently denied certiorari in a number of other cases raising the same issue. See Rush v. United States, No. 87-6861 (June 30, 1988); Felton v. United States, No. 87-6884 (June 30, 1988); Cloyd v. United States, No. 87-6988 (June 30, 1988); Finch v. United States, No. 87-6991 (June 30, 1988); Davis v. United States, No. 87-7064 (June 30, 1988); Blannon v. United States, No. 87-6549 (May 16, 1988); Strickler v. United States, No. 87-6265 (Mar. 21, 1988); Jackson v. United States, No. 87-5667 (Jan. 11, 1988); Hawkins v. United States, No. 86-6847 (Oct. 5, 1987); Gregg v. United States, No. 86-6009 (Mar. 9, 1987). /5/ It should do the same here. 6. Petitioner also renews his contention (Pet. 27-28) that he improperly received separate sentences on Count 7 for illegal possession of a firearm under Section 1202(a) and on Count 1 for engaging in the business of dealing in firearms without a license under 18 U.S.C. 922(a)(1). The court of appeals correctly rejected that contention. In the first place, the Double Jeopardy Clause's prohibition on multiple punishment is not implicated here because, as the court of appeals pointed out (Pet. App. A13), petitioner's convictions on Counts 1 and 7 arose out of two wholly separate and distinct incidents. Petitioner therefore did not receive multiple punishment for the same conduct. In any event, the permissibility under the Double Jeopardy Clause of cumulative punishment for particular conduct is a matter of legislative intent. See Ohio v. Johnson, 467 U.S. 493, 499 & n.8 (1984); Missouri v. Hunter, 459 U.S. 359, 366, 368 (1983); Whalen v. United States, 445 U.S. 684, 691-693 (1980). This Court "has consistently relied on the test of statutory construction stated in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether Congress intended the same conduct to be punishable under two criminal provisions." Ball v. United States, 470 U.S. 856, 861 (1985). In the absence of a clear expression of legislative intent to the contrary, consecutive sentences are appropriate under Blockburger if each statutory provision requires proof of at least one fact not required by the other. Albernaz v. United States, 450 U.S. 333, 340 (1981). In this case, the court of appeals correctly applied the Blockburger test and concluded (Pet. App. A13) that separate sentences are authorized for violations of Sections 1202(a) and 922(a)(1) because each section requires proof of at least one fact not required by the other. Accordingly, petitioner would have properly received separate sentences on Counts 1 and 7 even if both offenses had arisen out of the same conduct. /6/ 7. Finally, petitioner contends (Pet. 28-29) that the evidence was insufficient to sustain his conviction on Count 1 because it failed to show that he engaged in the business of dealing in firearms for profit. That contention is meritless. The evidence showed that petitioner sold at least 15 firearms to Chaon in exchange for cash or other items, such as collectible coins. The evidence also showed that petitioner attempted to sell additional firearms to Chaon on other occasions, but Chaon declined to make the purchases because the price was too high. Pet. App. A3. Based on that evidence, the jury could certainly conclude that petitioner was in the business of selling firearms for a profit. /7/ CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. CHARLES FRIED Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney JANUARY 1989 /1/ At the time the offense in Count 7 was committed, 18 U.S.C. App. (Supp. II) 1202(a), as amended by the Armed Career Criminal Act of 1984, Pub. L. 98-473, Section 1802, 98 Stat. 2185 (1984), read in pertinent part as follows: (a) Any person who -- (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony * * * * * * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearms shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. /2/ Petitioner's reliance on United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988), is misplaced. That case concerned the meaning of the term "burglary" in 18 U.S.C. 924(e), which is the successor provision to Section 1202(a)(1). As part of a general consolidation of the federal firearms laws in the Firearms Owners Protection Act of 1986, Pub. L. No. 99-308, Section 104(a)(4), 100 Stat. 456 (1986), Congress repealed Section 1202 and recodified it, without change, as Section 924(e). Shortly thereafter, however, Congress enacted the Career Criminal Amendments Act of 1986, Pub. L. No. 99-507, Title I, Section 1402(a), 100 Stat. 3207-39 (1986), which substantially changed Section 924(e) by authorizing an enhanced sentence whenever a defendant has three previous convictions "for a violent felony or a serious drug offense." That statute went on to define "violent felony" to include "burglary" in Section 924(e)(2)(B)(i), but it did not carry forward the definition of burglary from the repealed Section that the common law definition of burglary should control under Section 924(e) in the absence of a statutory definition. Since petitioner was convicted under the different provisions of the 1984 Act, which included a specific definition of burglary, the ruling in Headspeth is plainly inapposite here. /3/ The Fifth Circuit in United States v. Davis, 801 F.2d 754 (1986), is the only court of appeals to have ruled that Section 1202(a)(1) created a new offense that must be charged in the indictment and proved at trial. In contrast, the Third, Fourth, Sixth, Eighth, Ninth, Tenth, and District of Columbia Circuits have all concluded that Section 1202(a)(1) merely constituted a sentence enhancement provision. See United States v. Hawkins, 811 F.2d 210 (3d Cir. 1987), cert. denied, No. 86-6847 (Oct. 5, 1987); United States v. Blannon, 836 F.2d 843 (4th Cir. 1988), cert. denied, No. 87-6549 (May 16, 1988); United States v. Brewer, 853 F.2d 1319 (6th Cir. 1988); United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir. 1988); United States v. Rush, 840 F.2d 574 (8th Cir. 1988) (en banc), cert. denied, Nos. 87-6861 and 87-6988 (June 30, 1988); United States v. West, 826 F.2d 909 (9th Cir. 1987); United States v. Gregg, 803 F.2d 568 (10th Cir. 1987), cert. denied, No. 86-6009 (Mar. 9, 1987); United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987), cert. denied, No. 87-5667 (Jan. 11, 1988). We note in any event that petitioner has failed to preserve this claim for further review, since he stipulated before the district court that the fact of the three convictions was not an element of the offense but was rather a basis for enhancing his sentence if he were convicted. Pet. App. A8. /4/ The Fifth Circuit, which was the only court to hold that the former Section 1202(a)(1) created a separate offense, has recognized that the new statute is clearly an enhancement provision. United States v. Vidaure, No. 88-5515 (5th Cir. Dec. 6, 1988). /5/ Petitioner also contends in passing (Pet. 25-26) that the evidence was insufficient to show that he possessed the .38 caliber revolver and that the revolver had traveled in interstate commerce. The court of appeals properly rejected (Pet. App. A12-A13) those contentions and pointed out that the case upon which petitioner relies, United States v. Ruffin, 490 F.2d 557 (8th Cir. 1974), involved a different section of the Armed Career Criminal Act. In addition, petitioner contends (Pet. 26-27) that he was entitled to a new trial because the district court improperly answered a question from the jury during its deliberations. The jury asked whether it could convict based on circumstantial evidence alone. The district court then re-read its instruction on circumstantial evidence. The jury asked whether that charge meant that the court answered the question in the affirmative, to which the court replied that it did. Pet. App. A12. Petitioner argues that the court's answer amounted to a suggestion that the judge believed the circumstantial evidence in this case was enough to convict. As the court of appeals ruled (ibid.), that is not the natural reading of the district court's answer. Rather, the court was simply advising the jury of the correct legal proposition that circumstantial evidence, standing by itself, may be sufficient to support a conviction. /6/ Petitioner mistakenly relies on Ball v. United States, 470 U.S. 856 (1985) to support his argument. In Ball, this Court merely concluded that a defendant could not receive cumulative sentences for possessing a firearm, in violation of Section 1202(a), and receiving a firearm, in violation of Section 922. Petitioner, however, was convicted of violating Section 922 by engaging in the business of dealing in firearms without a license; he was not convicted simply of receiving a firearm. /7/ Petitioner also appears to suggest that his conviction on Count 1 for engaging in the business of dealing in firearms cannot stand because it is inconsistent with the jury's acquittal on Counts 2-6, which charged him with unlawfully possessing five of the firearms that he sold to Chaon. The mere fact that the jury's verdict was arguably inconsistent, however, provides no basis for overturning the jury's finding of guilty on Count 1, as long as the evidence was sufficient to sustain the conviction on that count. See United States v. Powell, 469 U.S. 57 (1984).