United States v. Brewton
United States v. Brewton
United States v. Brewton
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2433
UNITED STATES,
Plaintiff, Appellee,
v.
HERMAN L. BREWTON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Herman L. Brewton on brief pro se.
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A. John Pappalardo, United States Attorney, and Paul V.
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Kelly, Assistant U.S. Attorney, on brief for appellee.
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May 11, 1993
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Per Curiam. Appellant appeals from the denial of his
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motion to correct sentence. He contends that his sentence
for unlawfully possessing a firearm after having been
convicted of a felony (hereafter, felon in possession), 18
U.S.C. 922(g), should not have been enhanced under 18
U.S.C. 924(e) because the offense of conviction (felon in
possession) is not a "violent felony." We disagree with the
appellant's argument and affirm the district court's November
23, 1992 order.
We start with the words of the relevant statutes.
Section 922(g) of title 18 states as follows:
(g) 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 . . . possess . . . any firearm . . ..
Appellant does not deny that he possessed a firearm in
violation of 18 U.S.C. 922(g) after having been convicted
of a felony.
Section 924 of title 18 sets forth the penalties for
various crimes, including section 922(g) felon in possession
offenses. Section 924(e) reads as follows:
(e)(1) In the case of a person who
violates section 922(g) of this title and
has three previous convictions . . . for
a violent felony or a serious drug
offense, or both, committed on occasions
different from one another, such person
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shall be . . . imprisoned not less than
fifteen years . . ..
Appellant did not dispute below that he had at least "three
previous convictions . . . for a violent felony or a serious
drug offense." He argued instead that section 924(e)'s 15
year mandatory minimum sentence should not be imposed on him
because the offense of conviction -- felon in possession --
was not itself a violent felony or serious drug offense.
The plain language of section 924(e) does not require
that the offense of conviction itself be a violent felony or
a serious drug offense for section 924(e)'s mandatory 15 year
prison term to apply. Rather, it says that any defendant who
has at least three previous violent felony or serious drug
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offense convictions when he unlawfully possesses a firearm in
violation of section 922(g) must be sentenced to at least
fifteen years in prison.
Bypassing section 924(e)'s plain language, appellant
reads United States v. Doe, 960 F.2d 221 (1st Cir. 1992), to
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say that the offense of conviction itself must be a violent
felony before section 924(e)'s 15 year term applies.
Appellant's reading is wrong. In Doe, the defendant -- like
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appellant -- had been convicted of being a felon in
possession in violation of 18 U.S.C. 922(g). In addressing
whether Doe was subject to 924(e)'s mandatory minimum 15
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year prison term, we determined that a prior felon in
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possession conviction could not properly be counted as one of
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the "three previous convictions . . . for a violent felony"
within the meaning of 18 U.S.C. 924(e) because felon in
possession was not necessarily a violent crime. Doe in no
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manner requires the offense of conviction itself to be a
violent crime.
Next, appellant contends that the district court erred
in holding that appellant was a career criminal under
U.S.S.G. 4B1.1 because 4B1.1 specifically does not apply
if the offense of conviction (felon in possession) is not a
violent felony and, under both Doe and a 1991 amendment to
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U.S.S.G. 4B1.1, application note 2, felon in possession is
not a violent felony.
While appellant correctly reads 4B1.1, appellant
misunderstands the record, for there is no indication the
district court applied 4B1.1 to appellant. Appellant was
not sentenced pursuant to U.S.S.G. 4B1.1. Rather, the
presentence report, to which appellant filed no objection,
calculated appellant's sentence under U.S.S.G.
2K2.1(a)(2)(1987), the guideline which applied to 18 U.S.C.
922(g) offenses, and U.S.S.G. 5G1.1(b) (statutory minimum
sentence imposed when it is greater than the maximum of the
applicable guideline range). Appellant received the
statutory minimum sentence, 15 years. 18 U.S.C. 924(e).
Consequently, appellant's argument is meritless.
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We have addressed the arguments appellant raised below
in his Rule 35 motion and papers, and we find them without
merit. We do not address new matter (e.g. whether
appellant's predicate offenses constituted violent felonies)
raised for the first time in appellant's appellate brief.
Affirmed.
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Case-law data current through December 31, 2025. Source: CourtListener bulk data.