United States v. Kennedy, Jimmie Lee

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 1997 Decided January 16, 1998

No. 97-3009

United States of America,

Appellee

v.

Jimmie Lee Kennedy, a/k/a James Kornegay,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 95cr00198-01)

Neal Goldfarb, appointed by the court, argued the cause

and filed the briefs for appellant.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee, with whom Mary Lou Leary, U.S. Attor-

ney, and John R. Fisher, Assistant U.S. Attorney, were on

the brief.

Before: Edwards, Chief Judge, Henderson and Rogers,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Appellant Jimmie Lee Kennedy

appeals from his conviction by a jury of robbery and weapons

offenses on the grounds that the district court erred in

imposing five life sentences. He contends that the robbery

convictions under the Hobbs Act could not constitute the

basis for life imprisonment, that the jury was incorrectly

instructed as to the firearm possession count, that the gov-

ernment failed to comply with the statutory requirement that

he be served prior to trial with a copy of the information filed

in court that the government would seek a term of life

imprisonment, and that his sentence for violating the felon-in-

possession law was incorrectly assessed in light of the life

sentences he received for one of the robberies. We conclude

that the Hobbs Act contention is unpersuasive, and hold that

the instructional error was harmless and that the district

court did not clearly err in ruling that the government had

met its burden to show service of the information, albeit just

barely. However, we agree with appellant's contention re-

garding his sentence for being a felon in possession of a

firearm and, accordingly, remand that count to the district

court for resentencing; in all other respects we affirm the

judgment of conviction.

I.

Appellant and a man named Harrington robbed a Roy

Rogers restaurant at 6514 Georgia Avenue, N.W., in Wash-

ington, D.C., on the evening of May 17, 1995, and again on the

morning of June 25, 1995. United States v. Harrington, 108

F.3d 1460, 1463-64 (D.C. Cir. 1997). On both occasions

appellant produced a handgun and ordered store employees

to give him the money from the restaurant safe. During the

second robbery, two uniformed police officers happened to be

waiting in a marked Metropolitan Police Department car to

place an order at the restaurant's drive-through window.

The officers apprehended appellant after he left the restau-

rant, but not before he drew his gun and fired several shots

at them, slightly wounding one officer. Appellant also point-

ed his gun at another police officer who arrived on the scene

to arrest him.

The government indicted appellant for two violations of the

Hobbs Act, 18 U.S.C. s 1951, two counts of using a firearm to

commit a crime of violence, 18 U.S.C. s 924(c), and one count

of possession of a firearm by a convicted felon, 18 U.S.C.

s 922(g). He was also charged with two counts of assault on

a police officer pursuant to D.C. Code 22-505(a) and (b). A

jury found him guilty as charged and the district court

sentenced him to five concurrent life terms of imprisonment

for the federal charges, and 20 months to five years imprison-

ment on the assault charges.

II.

Individuals who use or carry a firearm "during and in

relation to any crime of violence" must be sentenced to a five

year prison term in addition to any sentence warranted by

their conviction for the underlying crime. 18 U.S.C.

s 924(c)(1). The term "crime of violence" is defined as a

felony that

(A) has as an element the use, attempted use, or threat-

ened use of physical force against the person or property

of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.

18 U.S.C. s 924(c)(3). Additionally, the federal three-strikes

law provides that individuals who have been convicted of two

prior serious violent felonies "shall be sentenced to life im-

prisonment." 1 18 U.S.C. s 3559(c)(1). Under the statute,

the term "serious violent felony" means--

__________

1 Appellant had been convicted of armed robbery and assault

with a deadly weapon in 1970 and of armed bank robbery and

robbery in 1981.

(i) a Federal or State offense, by whatever designation

and wherever committed, consisting of ... robbery (as

described in section 2111, 2113, or 2118); ... extortion;

... firearms use; ... and

(ii) any other offense punishable by a maximum term

of imprisonment of 10 years or more that has as an

element the use, attempted use, or threatened use of

physical force against the person of another or that, by

its nature, involves a substantial risk that physical force

against the person of another may be used in the course

of committing the offense.

Id. s 3559(c)(2)(F).2

A "crime of violence" and a "serious violent felony" are

ordinarily designated as such by looking to the statutory

definition of the crime, rather than the evidence presented to

prove it. See, e.g., United States v. Romero, 122 F.3d 1334,

1342-43 (10th Cir. 1997); United States v. Amparo, 68 F.3d

1222, 1225-26 (9th Cir. 1995). Although appellant's armed

robberies contained all the indicia of violent acts, he correctly

observes that what he did is not at issue. Instead, the

question is whether the crime with which he was charged

constituted a serious violent felony or a crime of violence. As

the Supreme Court explained in Taylor v. United States, 495

U.S. 575, 601 (1990), "Congress generally took a categorical

approach to predicate offenses" because "the practical diffi-

culties and potential unfairness of a factual approach are

daunting." Id. Appellant contends that his s 924(c) and

third-strike conviction must be vacated because the Hobbs

__________

2 The analyses of appellant's contentions under s 924(c) and

s 3559(c) do not differ in any significant respect. Appellant did not

raise his three-strikes claim in the district court. Accordingly, the

error made by the district court on that issue would have to be

"obvious" to entitle him to relief. United States v. Saro, 24 F.3d

283, 288 (D.C. Cir. 1994). But because we conclude that the district

court made no error of any kind in sentencing appellant under

s 924(c) or the three-strikes law, the different standard of review

does not require a different analysis.

Act charges cannot constitute predicate crimes of violence or

serious violent felonies, as required by both statutes.

The Hobbs Act provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or

affects commerce ... by robbery or extortion or at-

tempts or conspires so to do, or commits or threatens

physical violence to any person or property in further-

ance of a plan or purpose to do anything in violation of

this section shall be fined not more than $10,000 or

imprisoned not more than twenty years, or both.

(b) As used in this section--

(1) The term "robbery" means the unlawful taking or

obtaining of personal property from the person or in the

presence of another, against his will, by means of actual

or threatened force, or violence....

(2) The term "extortion" means the obtaining of proper-

ty from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or

under color of official right.

18 U.S.C. s 1951.

The Hobbs Act thus prohibits interference with interstate

commerce through either robbery or extortion. Because

extortion under color of official right need not be effected

through violence, not all crimes under the Hobbs Act need be

violent crimes. Appellant would accordingly have this court

interpret Taylor to mean that if one possible way to violate a

criminal statute could be nonviolent, all statutory violations

would be immunized from the three-strikes law and s 924(c).

Yet doing so would ignore an exception provided in Taylor

that has been interpreted by this court and others to cover

statutes that enjoin both violent and nonviolent forms of

conduct. In Taylor, the Supreme Court explained that its

"categorical approach ... may permit the sentencing court to

go beyond the mere fact of conviction" in cases where the

crime is "generic." See Taylor, 495 U.S. at 602. Because the

mere fact of conviction under the Hobbs Act does not estab-

lish whether a defendant was convicted of a violent or nonviol-

ent crime, the Hobbs Act is one of the "generic" crimes that

requires further assessment by the district court. See United

States v. Mendez, 992 F.2d 1488, 1490 (9th Cir. 1993). In the

instant case, therefore, the district court was entitled to look

at the indictment or jury instructions to determine whether

the charged crime was "by its nature" a crime of violence

pursuant to s 924(c)(3)(B) or a serious violent felony pursuant

to s 3559(c)(1)(B)(ii).3 See United States v. Palmer, 68 F.3d

52, 55-56 (2d Cir. 1994); United States v. Winter, 22 F.3d 15,

18 (1st Cir. 1994). As the Ninth Circuit has concluded where

"the indictment expressly states which of the various permu-

tations of s 1951 is the source of the conviction ... [w]e may

consider [the] indictment in determining the nature of an

offense using the categorical approach." Mendez, 992 F.2d at

1491; cf. also United States v. Elder, 88 F.3d 127, 128-29 (2d

Cir. 1996) (per curiam); United States v. Farmer, 73 F.3d

836, 842 (8th Cir. 1996).

Our conclusion comports with this court's prior application

of the Taylor exception. In United States v. Mathis, 963

F.2d 399 (D.C. Cir. 1992), this court remanded a three-strikes

case to the district court to determine whether "the indict-

ment and/or jury instructions" for a prior conviction "demon-

strate that the jury necessarily found that appellant used or

threatened to use physical force" in committing his crime.

Id. at 409. The approach adopted here and in Mathis avoids

the factual inquiry that concerned the Supreme Court in

Taylor, but permits courts to treat violent crimes as Congress

__________

3 Appellant contends that Taylor's exception should apply only

where the predicate crimes at issue are prior convictions. Thus, in

his view, the exception would only apply to the three-strikes law

and not to s 924(c). But other circuits have held that a robbery

charged as a violation of the Hobbs Act can serve as a predicate

crime of violence under s 924(c). See, e.g., Mendez, 992 F.2d at

1491; Elder, 88 F.3d at 128-29. There is no difference, for the

purpose of sentencing enhancement statutes, between predicate

crimes committed in the past or the present. Either way, appellant

was on notice that his violent conduct was both violative of the

Hobbs Act and constituted a "crime of violence" and "serious violent

felony" susceptible to an enhanced sentence.

intended they be treated. Furthermore, the exception pro-

vided to the general rule in Taylor is narrow; a district court

may only undertake this inquiry when a statute provides for

both violent and nonviolent means of violation.

The indictment charged appellant with two counts of

"Hobbs Act Robbery, in violation of Title 18, United States

Code, Sections 1951(a) and 2)." Because robbery that affects

interstate commerce is a violent felony prohibited by the

Hobbs Act, and because the indictment establishes that appel-

lant was being charged with such a crime, appellant's conten-

tion that his crimes did not constitute "crimes of violence"

and "serious violent felonies" for the purposes of the sentenc-

ing enhancement statutes fails.

III.

Section 924(c)(1) applies only to those who "use[ ] or

carr[y]" a firearm "during and in relation to any crime of

violence." 18 U.S.C. s 924(c)(1). In Bailey v. United States,

116 S.Ct. 501 (1995), the Supreme Court limited the scope of

the term "use." The Court held that s 924(c)(1) "requires

evidence sufficient to show an active employment of the

firearm by the appellant, a use that makes the firearm an

operative factor in relation to the predicate offense." Id. at

505. "Active employment", the Court specified, "certainly

includes brandishing, displaying, bartering, striking with, and

most obviously, firing or attempting to fire, a firearm." Id. at

508. The government concedes that the district court in-

structed the jury in accordance with the pre-Bailey law of

s 924(c) that conflated the terms "use" and "carry" and

defined both broadly; appellant accordingly seeks reversal of

his s 924(c) convictions.

We review the district court's instructions mindful that

errors may be harmless. See United States v. Smart, 98 F.3d

1379, 1393-94 (D.C. Cir. 1996); United States v. Price, 76

F.3d 526, 529 (3d Cir. 1996). Non-constitutional error such as

is asserted by appellant is harmless when it is highly probable

that the error did not contribute to the conviction. United

States v. Cicero, 22 F.3d 1156, 1161 (D.C. Cir. 1994).

The jury found appellant guilty of two counts of assault,

based only on his firing and pointing of his gun at police

officers. The indictment charged appellant with "assault [of]

Brian Gibson, an officer of the District of Columbia Metropol-

itan Police Department, by use of a deadly and dangerous

weapon, namely, a Colt .38 caliber revolver" and "assault [of]

Anthony Paci, an officer of the District of Columbia Metropol-

itan Police Department, by use of a deadly and dangerous

weapon, namely, a Colt .38 caliber revolver." Because appel-

lant was followed by the police from the moment he left the

Roy Rogers to the moment he fired his gun at them and was

apprehended, his conviction on the assault charges establishes

that the jury concluded that appellant carried a gun while he

robbed the Roy Rogers in violation of s 924(c). Further-

more, restaurant employees testified that appellant jumped

over the counter brandishing a gun. Given the overwhelming

evidence of appellant's guilt, we hold that the error in the

jury instruction was harmless.

IV.

The district court sentenced appellant to two concurrent

terms of life in prison for the robberies pursuant to the three-

strikes law. 18 U.S.C. s 3559(c). Under s 3559(c)(4), the

government must comply with the provision of 21 U.S.C.

s 851(a) if it wishes to invoke the three-strike law against a

defendant in a violent felony or drug case. Appellant con-

tends that the government failed to comply with the statute.

Although prior to trial the government filed with the district

court a three-strikes information that included a certificate of

service to the effect that a copy had been mailed to appel-

lant's trial counsel, counsel claimed that she had never re-

ceived it.

Section 851(a) provides that:

No person who stands convicted of an offense under this

part shall be sentenced to increased punishment by

reason of one or more prior convictions, unless before

trial, or before entry of a plea of guilty, the United

States attorney files an information with the court (and

serves a copy of such information on the person or

counsel for the person) stating in writing the previous

convictions to be relied upon....

21 U.S.C. s 851(a)(1). Section 851(a) is a firm and strict rule

for which actual notice cannot be substituted for compliance

with the rule; nor does actual notice render failure to comply

strictly with the service requirements harmless. As this

court has explained, "Section 851 gives defendants a chance

to contest the accuracy of the government's recital of their

prior convictions." See Vanness, 85 F.3d 661, 663 & n.2 (D.C.

Cir. 1996). Furthermore, "[s]ection 851(a) ... inform[s] the

defendant that [ ]he faces severe consequences if convicted."

United States v. Kelly, 29 F.3d 1107, 1109 (7th Cir. 1994).

Put succinctly, "[a] prosecutor's compliance with s 851(a)(1) is

simply a necessary condition to a judge's imposing an en-

hanced sentence on the basis of a defendant's prior convic-

tions." Vanness, 85 F.3d at 663 n.2. Because service is a

necessary condition of compliance with the statute, "the doc-

trine of harmless error does not apply with respect to failures

to follow the statutory scheme of s 851." United States v.

Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990) (quotation

marks, citation omitted); Kelly, 29 F.3d 1109-10.

Therefore, the government had to comply with the rules

regarding service by mail when it chose that method of

notifying appellant under s 851(a). The Federal Rules of

Criminal Procedure direct that service be made in accordance

with the rules "provided in civil actions." Fed. R. Crim. P.

49(b). Rule 5(b) of the Federal Rules of Civil Procedure

provides that

[s]ervice upon the attorney or upon a party shall be made

by delivering a copy to the attorney or party or by

mailing it to the attorney or party at the attorney's or

party's last known address or, if no address is known, by

leaving it with the clerk of the court....Service by mail

is complete upon mailing.

Fed. R. Civ. P. 5(b). Under Rule 5(b), then, the government

was obligated to show only that it mailed the information to

appellant's counsel, and not that defense counsel actually

received the letter, to comply with the service requirements

set forth in s 851(a). "Service is deemed complete at the

instant the documents are placed into the hands of the United

States Post Office or a Post Office Box." 3D Moore's Federal

Practice s 5.04[2][a] (citing cases); see also 4A Wright &

Miller, Federal Practice and Procedure s 1148 (citing cases).

The evidence before the district court on the issue of

mailing consisted of the testimony of an Assistant United

States Attorney that he had either placed the information

addressed to appellant's trial counsel in the out-box in his

office or given it to his secretary with written instructions to

mail it, and that the mail was picked up twice a day from his

immediate office. Although he had no independent recollec-

tion of giving the information at issue to his secretary, the

Assistant described his normal procedure and noted the file

stamp as indicating that the original copy had in fact been

filed in the district court. Further, there was no indication

from the Assistant's secretary or otherwise that there had

been any problems with mail pick up in his office during that

period. Appellant contends that this evidence--that the pros-

ecutor either put the information in his out-box or gave it to

his secretary to mail--supports an inference that the letter

was lost as easily as it supports an inference that the letter

was mailed.

The district court found that the government had satisfied

its statutory obligations, as evidenced by the certificate of

service attached to the court-filed information and the testi-

mony of the Assistant about his usual mailing practices.4

__________

4 The Assistant also testified, and was corroborated by a second

Assistant, that the three-strikes nature of the case had been dis-

cussed with appellant's counsel. The district court had also stated

during a pretrial conference that this was "a section 3559 case" and

"a third strike case." The court accordingly found that appellant

had actual notice of the government's intentions. Because review

for harmless error review is inapplicable in evaluating the govern-

ment's compliance with s 851(a), the finding of actual knowledge of

the government's intentions is of no moment. Weaver, 905 F.2d at

1481.

Although we find no clear error in this finding, see United

States v. White, 116 F.3d 903, 911 n.2 (D.C. Cir. 1997), cf.

Clayton Brokerage Co. of St. Louis, Inc. v. Bunzel, 820 F.2d

1459, 1463 (9th Cir. 1987); General Electric Co. v. Brown

Transport Corp., 597 F. Supp. 1258, 1260 (E.D. Va. 1984), the

government's evidence is just barely sufficient to meet its

burden of proof. The mailbox rule defining permissible ser-

vice by mail cannot be converted in to an out-box rule.

Missing from the government's evidence is any testimony

regarding what the secretary might have done with the

information addressed to appellant's counsel and evidence

regarding the standard operating procedures within the Unit-

ed States Attorney's Office for the handling of out-box mail.

Somewhat similar to the point appellant makes, on this record

another factfinder might have concluded that the evidence of

mailing was in equipoise. In light of the important purposes

underlying the statutory requirement, there is good reason

for the government to avoid that possibility, and it can easily

do so by viewing its statutory obligation to encompass estab-

lishing a chain of "custody": the government must present

evidence on the role of each person who handles a document,

from the point of its creation to its entrustment to the United

States Postal Service, thereby establishing that the document

was, in fact, served on the defendant or his counsel. Then,

"as a matter of reasonable probability," the possibilities of

misplacing or failing to send the document have been elimi-

nated, and the government has met its burden of establishing

an adequate chain of service. United States v. Robinson, 447

F.2d 1215, 1220 (D.C. Cir. 1971) (en banc) (quoting Gass v.

United States, 416 F.2d 767, 770 (D.C. Cir. 1969)); see also

United States v. Stewart, 104 F.3d 1377, 1383 (D.C. Cir. 1997).

When hand-to-hand evidence cannot be produced, the govern-

ment can fill the gap by offering evidence of the usual and

normal practices at each stage. See, e.g., United States v.

Luna, 585 F.2d 1, 6 (1st Cir. 1978). Other than the Assis-

tant's testimony, the government failed to offer evidence of

this sort. However, the record indicates that the information

was actually filed in the district court with a statement of

service on appellant's trial counsel. The timely filing of this

information supports an inference of regularity as to the

other aspects of the Assistant's conduct. Thus, the district

court's finding that service by mail occurred was not clearly

erroneous. Nonetheless, government counsel will be well

advised in the future not to rely on such a weak inference to

fill evidentiary gaps, in place of more substantial evidence of

the usual practice of routing mail.

V.

Appellant was sentenced to a term of life imprisonment for

violating 18 U.S.C. s 922(g), which provides, in pertinent

part,

It shall be unlawful for any person--

(1) who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one

year

...

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammu-

nition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.

This "felon-in-possession" count was based on the gun found

in appellant's possession when he was apprehended after the

second robbery. Though appellant's possession of the weap-

on violated the statute, appellant contends that his life sen-

tence for the crime represented a misapplication of the Guide-

lines, and we agree.

Under the Guidelines the sentencing court is required to

"determin[e] a single offense level that encompasses all of the

counts of which the defendant is convicted." U.S.S.G. Ch. 3,

Pt. D, introductory commentary. The Guidelines also require

the sentencing court to "group" counts related to the same

acts. U.S.S.G. s 3D1.2(c). The district court appropriately

grouped appellant's second robbery of the Roy Rogers with

his felon-in-possession count, but acted in contravention to

U.S.S.G. s 5G1.2 in imposing a life sentence for robbery.

Under the Guidelines, the determination of a single offense

level for each of the grouped counts is assessed at the

sentence required by the highest offense level for any of the

counts in the group. U.S.S.G. s 3D1.3(a). All grouped

counts are then sentenced at that level. Id. The combined

adjusted offense level for the robbery count was 34, which

translated to a Guidelines range of 262-327 months. This

sentence should have been imposed on appellant for his felon-

in-possession count. But the district court did not impose the

Guidelines range for either the robbery or the felon-in-

possession count. It correctly did not impose the Guidelines

range on appellant's robbery count because that count consti-

tuted appellant's third strike, and therefore required the

imposition of a mandatory minimum life sentence. See 18

U.S.C. s 3559(c)(1). However, the court also imposed life

imprisonment on appellant for the grouped felon-in-

possession count. Yet U.S.S.G. s 5G1.2 provides that for

multiple-count sentences:

[e]xcept as otherwise required by law (see 5G1.1(a), (b)),

the sentence imposed on each ... count shall be the total

punishment as determined in accordance with Part D of

Chapter Three and Part C of this Chapter.

Under Part D of Chapter 3 and Part C of Chapter 5, the

determination of the appropriate sentence is generally made

without regard to any applicable statutory minimums or

maximums.5 The Commentary to s 5G1.2 indicates that the

term "total punishment" refers only to the punishment based

on the combined offense level, without regard to any applica-

ble mandatory sentence. "The combined length of the sen-

tences ('total punishment') is determined by the adjusted

offense level." U.S.S.G. s 5G1.1 commentary. In appellant's

case, the Guidelines range for the felon-in-possession count

__________

5 There are only two references in Part D of Chapter 3 or Part

C of Chapter 5 to statutorily mandated punishments: s 3D1.1(b)

provides that counts subject to a mandatory consecutive sentence

are excluded from the grouping rules, and s 5C1.2 provides for

downward departures from a statutory minimum under the safety

valve.

and the second Hobbs Act count was 34, or 262-327 months.

That range, and not the mandatory life imprisonment term is

the "total punishment" referred to in s 5G1.2(b). Hence, the

fact that appellant failed to object in the district court to his

life sentence on the felon-in-possession count does not fore-

close our determination that plain error has occurred. See

Saro, 24 F.3d at 286.

The ramifications of this error are reflected the opening

clause of s 5G1.2(b), which reads "[e]xcept as otherwise re-

quired by law...." A mandatory sentence exceeding the

guidelines range is a sentence "otherwise required by law."

But if mandatory minimum sentences were factored into the

determination of the "total punishment," the total punishment

would always be consistent with the punishment "required by

law." To give the opening clause meaning total punishment

must be determined in accordance with the adjusted com-

bined offense level.6

Accordingly, we affirm the judgment of conviction in all

respects except we vacate the sentence on count five and

remand the case so that the district court can impose a new

sentence on that count.

__________

6 Appellant's Commerce Clause contention is foreclosed by the

court's rejection of the same contention by Harrington, the co-

defendant, who maintained that the Hobbs Act prohibition against

"obstructing, delaying, or affecting commerce or the movement of

any article or commodity in commerce, by robbery or extortion," 18

U.S.C. s 1951(a), did not extend to the robberies of the Roy Rogers

on Georgia Avenue. See Harrington, 108 F.3d at 1464-70 (D.C.

Cir. 1997). The court concluded that "[w]ithout relying on disputed

facts or dubious or speculative rationales, the jury could securely

conclude that ... this missing [stolen] money would [be used in] a

series of interstate transactions." Id. at 1469.