EDDIE LUCIO GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6370 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals on remand from this Court in Garcia v. United States, 110 S. Ct. 2143 (1990) (Pet. App. B1-B5) is unpublished, but the judgment is noted at 914 F.2d 252 (Table). The initial opinion of the court of appeals (Pet. App. D1-D6) is also unpublished, but the judgment is noted at 885 F.2d 868 (Table). JURISDICTION The judgment of the court of appeals was entered on August 27, 1990. The petition for a writ of certiorari was filed on Monday, November 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether offenses must be separated by intervening convictions in order to qualify as predicates for an enhanced sentence under the pre-1988 version of 18 U.S.C. 924(e)(1). STATEMENT 1. Petitioner was indicted in the Western District of Texas on two counts of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) (Counts 2 and 4), and two counts of making a false statement in connection with acquiring a firearm, in violation of 18 U.S.C. 922(a)(6) (Counts 1 and 3). The indictment alleged that petitioner had three previous convictions for burglary under California state law, /1/ thus subjecting him to an enhanced sentence of at least 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987). /2/ After a bench trial, petitioner was convicted on all counts. The district court sentenced petitioner to enhanced terms of 15 years' imprisonment under Section 924(e)(1) on Counts 2 and 4, and to terms of five years' imprisonment on Counts 1 and 3; all the sentences are to run concurrently. Pet. App. D1-D2. 2. The court of appeals affirmed. Pet. App. D1-D6. In the court of appeals, petitioner argued that since his three predicate convictions became final on the same date, they should have been considered as "only one previous conviction, not three," for purposes of an enhanced sentence under Section 924(e)(1). Pet. App. D3 (emphases in original); see note 1, supra. The court rejected that claim, citing its recent decision in United States v. Herbert, 860 F.2d 620 (5th Cir. 1988), cert. denied, 109 S. Ct. 2074 (1989). In Herbert, the court of appeals had held (860 F.2d at 622) that "multiple convictions arising from multiple criminal transactions should be treated as separate convictions, regardless of the number of judicial proceedings involved." Pet. App. D3. /3/ 3. On remand from this Court, the court of appeals affirmed. Pet. App. B1-B5. The court of appeals held that, in light of Taylor v. United States, 110 S. Ct. 2143 (1990), petitioner's California burglary convictions qualified as predicate offenses under Section 924(e)(2)(B)(ii). Pet. App. B2-B3. /4/ ARGUMENT Petitioner contends (Pet. 4-17) that offenses must be separated by intervening convictions in order to qualify as predicate offenses for an enhanced sentence under the pre-1988 version of Section 924(e)(1). The plain language of the statute imposed no such requirement. /5/ Section 924(e)(1) prescribed an enhanced sentence for any felon in possession of a firearm who "has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony." The courts of appeals have uniformly held that that version of Section 924(e)(1) did not mandate that convictions intervene before offenses could be treated as predicates, so long as those convictions arose from separate criminal episodes or transactions. See, e.g., United States v. Schoolcraft, 879 F.2d 64, 70-75 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); United States v. Herbert, 860 F.2d at 622; United States v. Gillies, 851 F.2d 492, 497 (1st Cir.), cert. denied, 488 U.S. 857 (1988); United States v. Rush, 840 F.2d 580, 581 (8th Cir.), cert. denied, 487 U.S. 1238 (1988); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 488 U.S. 831 (1988); United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986). /6/ In 1988 Congress amended Section 924(e)(1) to adopt expressly the interpretation that had been used by the courts of appeals. In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7056, 102 Stat. 4402, Congress amended Section 924(e)(1) to provide that the enhanced sentence applies to otherwise qualified felons who have "three previous convictions * * * (for offenses) committed on occasions different from one another." The amended statute, effective January 1, 1989, now makes clear that the construction adopted by the court of appeals, in accord with other circuits, is correct: a felon's three prior convictions need only arise from separate criminal episodes occurring on different occasions. The issue petitioner raises therefore does not warrant further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney JANUARY 1991 /1/ The record revealed that petitioner had the following California burglary convictions: a May 7, 1981, first degree burglary conviction for an offense committed on November 22, 1980; a July 17, 1981, second degree burglary conviction for an offense committed on March 30, 1981; and another July 17, 1981, second degree burglary conviction for an offense committed on June 18, 1981. Each offense involved burglary of a residence. In a consolidated proceeding on July 24, 1981, petitioner was sentenced to consecutive terms of imprisonment on the three burglaries. Pet. App. D2-D3; Gov't C.A. Br. 2-3; Gov't Exhs. 6, 7, 8. /2/ The pre-1988 version of Section 924(e)(1), 18 U.S.C. 924(e)(1) (Supp. V 1987), applied to previously convicted felons who possessed or received a firearm in violation of 18 U.S.C. 922(g). That version of Section 924(e)(1) provided in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. /3/ The court of appeals also rejected petitioner's contention that Section 924(e) did not apply to his state second degree burglary convictions because those offenses did not satisfy the common law definition of burglary. Pet. App. D3-D6. Petitioner sought certiorari from this Court, raising both issues decided by the court of appeals. In June 1990, this Court granted the petition, vacated the court of appeals' judgment, and remanded for further consideration in light of Taylor v. United States, 110 S. Ct. 2143 (1990) (definition of "burglary" for purposes of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii)). Garcia v. United States, 110 S. Ct. 2581 (1990). /4/ Petitioner has sought no further review of that aspect of the court of appeals' judgment. /5/ For that reason, petitioner errs (Pet. 4-10) in relying on the rule of lenity. See Moskal v. United States, No. 89-694 (Dec. 3, 1990), slip op. 3-4. /6/ Petitioner suggests in passing (Pet. 15-16) that the Third Circuit's en banc decision in United States v. Balascsak, 873 F.2d 673 (3d Cir. 1989), creates a conflict among the circuits on the issue. As the court of appeals later explained in United States v. Schoolcraft, 879 F.2d at 72-73, the en banc Third Circuit was evenly divided on the issue whether Section 924(e)(1) requires offenses to be separated by intervening convictions in order to qualify as predicates for an enhanced sentence. Balascsak therefore does not create a conflict among the courts of appeals, particularly in light of the Third Circuit's more recent decision in Schoolcraft. Petitioner also suggests that the court of appeals' decision (as well as the prevailing view among the circuits) conflicts with the view espoused by "(t)he majority rule in state jurisdictions" construing analogous habitual offender statues. Pet. 10. That suggestion is beside the point, because the only issue presented in this case concerns the scope of a particular former federal statute -- 18 U.S.C. 924(e)(1) (Supp. V 1987).