07-3059-cr United States v. Bullock

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Argued: October 3, 2008 Decided: December 17, 2008) 9 10 Docket No. 07-3059-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 07-3059-cr 19 20 WILLIAM BULLOCK, JR., 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x 25

26 Before: JACOBS, Chief Judge, MINER and SOTOMAYOR, 27 Circuit Judges. 28 29 Defendant-Appellant William Bullock, Jr. appeals from a

30 judgment of conviction entered in the United States District

31 Court for the Northern District of New York (McAvoy, J.) on

32 July 13, 2007. He argues principally that under the Armed

33 Career Criminal Act, his prior convictions cannot be counted

34 because his civil rights had been restored. For the

35 following reasons, we affirm. 1 BRYAN E. ROUNDS, Rounds & 2 Rounds, Kingston, NY , for 3 Defendant-Appellant. 4 5 PAUL D. SILVER, Assistant United 6 States Attorney (Carlos A. 7 Moreno, Assistant United States 8 Attorney, on the brief), for 9 Glenn T. Suddaby, United States 10 Attorney for the Northern 11 District of New York, Albany, 12 NY , for Appellee. 13 14 DENNIS JACOBS, Chief Judge: 15 16 Defendant-Appellant William Bullock, Jr. appeals from a

17 judgment of conviction entered in the United States District

18 Court for the Northern District of New York (McAvoy, J.) on

19 July 13, 2007. Bullock argues that: (1) his conviction

20 (and sentence) under the Armed Career Criminal Act (“ACCA”),

21

(e), must be set aside because his civil

22 rights had been restored; (2) his motion for a judgment of

23 acquittal or new trial should have been granted because

24 there was insufficient evidence to establish his

25 constructive possession of ammunition found in a shared

26 residence; (3) the jury venire was not representative of a

27 cross-section of the community; and (4) his sentence is

28 disproportionate in violation of the Eighth Amendment. We

29 affirm.

30

2 1 BACKGROUND

2 In October 2005, a confidential informant working for

3 the Albany County Sheriff’s Department made two small

4 purchases of crack cocaine from Bullock. Based on these

5 transactions, the Sheriff’s Department obtained a search

6 warrant for the residence that Bullock shared with his

7 fiancee.

8 During a search of the residence executed on October

9 12, 2005, law enforcement officials opened a dresser drawer

10 in the bedroom shared by Bullock and his fiancee and found a

11 small quantity of crack cocaine, some correspondence

12 addressed to Bullock, eight rounds of ammunition, zip-lock

13 baggies of a kind used to package cocaine, a speed loader

14 used to feed ammunition into a revolver, and $1,543 cash.

15 Thirty dollars of the cash was identified as pre-recorded

16 buy money paid to Bullock during a transaction with the

17 confidential informant. Law enforcement officials also

18 seized a rifle, two shotguns, and assorted ammunition from a

19 duffel bag in Bullock’s garage.

20 Bullock was charged with two ACCA counts, one for

21 possessing ammunition and the other for possessing firearms

22 after having been convicted of at least three violent felony

3 1 offenses in violation of

(g)(1) and 924(e).

2 He was convicted on the ACCA count charging possession of

3 ammunition but acquitted on the ACCA count charging

4 possession of firearms. He was also convicted on two counts

5 of possessing with intent to distribute and distributing

6 cocaine base and one count of possessing with intent to

7 distribute cocaine base in violation of

841(a)(1). Bullock was sentenced principally to 188 months’

9 imprisonment on the ACCA count, eight months above the

10 mandatory minimum sentence, and to twelve months and a day

11 on each of the other counts to run concurrently with the

12 sentence on the ACCA count.

13

14 DISCUSSION

15 I

16 Bullock argues that the imposition of a fifteen-year

17 mandatory minimum sentence was error because the ACCA does

18 not count convictions that have “been expunged, or set aside

19 or for which a person has been pardoned or has had civil

20 rights restored . . . unless such pardon, expungement, or

21 restoration of civil rights expressly provides that the

22 person may not ship, transport, possess, or receive

4 1 firearms.”

(a)(20).

2 Bullock contends that his civil rights had been

3 restored at the time of the present offense because he “had

4 been off parole for 11 years,” he “was entitled to vote,”

5 and New York State law did not restrict his right to possess

6 ammunition.

7 The restoration of civil rights involves three

8 components: (1) the right to vote; (2) the right to serve on

9 a jury; and (3) the right hold elective office. See McGrath

10 v. United States,

(2d Cir. 1995); see

11 also Logan v. United States,

(2007)

12 (“While § 921(a)(20) does not define the term ‘civil

13 rights,’ courts have held, and petitioner agrees, that the

14 civil rights relevant under the above-quoted provision are

15 the rights to vote, hold office, and serve on a jury.”).

16 Bullock’s rights to vote and hold office were arguably

17 restored by operation of law. See

-

18 106;

. However, his right to

19 serve on a jury was not; he was not pardoned; and none of

20 his prior convictions were expunged. See N.Y. Judiciary Law

21 § 510(3) (“In order to qualify as a juror a person must not

22 . . . [n]ot have been convicted of a felony.”).

5 1 Accordingly, Bullock cannot establish that his prior

2 convictions are not counted as “crime[s] punishable by

3 imprisonment for a term exceeding one year” as defined in 18

4

(a)(20).

5 Bullock contends that he should not be penalized under

6 federal law for conduct (possession of ammunition) that he

7 was free to do under state law. But this is a mere irony.

8 As the Seventh Circuit Court of Appeals has observed on

9 similar facts, “a federal prosecution for felon in

10 possession of ammunition . . . is in no manner dependent on

11 whether the state in which the crime is committed has

12 enacted a parallel statute criminalizing the same conduct.”

13 United States v. Wilson,

(7th Cir. 2006).

14 Obviously, federal law may bar conduct that a state allows.

15 The role of the state “in the federal statutory scheme . . .

16 is limited to the determination of whether the defendant is

17 a convicted felon. Once the felony conviction is

18 established, federal law prohibits the possession of either

19 firearms or ammunition.”

.

20 Bullock also asserts that because his prior convictions

21 were for crimes committed in the 1970’s, imposition of a

22 fifteen-year mandatory minimum sentence in this case does

6 1 not serve the congressional purpose of the ACCA to punish

2 dangerous recidivists. Congress’s intent, however, is

3 irrelevant because the statutory wording at issue is

4 unambiguous.

5

6 II

7 Bullock challenges the denial of his motion for a

8 judgment of acquittal under Federal Rule of Criminal

9 Procedure 29 or a new trial under Federal Rule of Criminal

10 Procedure 33.

11 We “review de novo a district court’s denial of a Rule

12 29 motion, applying the same standard [for] sufficiency [of

13 the evidence] as the district court.” United States v.

14 Florez,

(2d Cir. 2006). That standard

15 places a heavy burden on the defendant, whose conviction

16 must be affirmed if “‘any rational trier of fact could have

17 found the essential elements of the crime beyond a

18 reasonable doubt.’” United States v. MacPherson,

(2d Cir. 2005) (quoting Jackson v. Virginia, 443

, 319 (1979)). As to a new trial, Rule 33 allows a

21 district court, upon motion by the defendant, to “vacate any

22 judgment and grant a new trial if the interest of justice so

7 1 requires.” Fed. R. Crim. P. 33(a). But “[w]e will not

2 disturb the district court’s findings of fact [on a Rule 33

3 motion] unless [they are] clearly erroneous, and we will not

4 overturn the district court’s decision except for an abuse

5 of discretion.” United States v. Locascio,

, 949

6 (2d Cir. 1993).

7 Bullock argues that there was insufficient evidence to

8 establish his constructive possession of the ammunition

9 found in the bedroom dresser drawer and that the government

10 proved no more than that Bullock and his fiancee shared the

11 bedroom and that Bullock had access to the dresser.

12 Bullock understates the quantum of evidence, which

13 included: (1) that correspondence addressed to Bullock was

14 found in the drawer with the ammunition; (2) that the

15 ammunition was discovered in a drawer with men’s underwear

16 in a dresser with only men’s clothing; and (3) that $1,543

17 cash was found in the drawer, including $30 of pre-recorded

18 buy money given to Bullock a few days earlier. Given this

19 evidence, a “rational trier of fact could have found the

20 essential elements of the crime beyond a reasonable doubt.”

21 United States v. Hardwick,

(2d Cir. 2008).

22 For the same reason, the district court did not abuse its

8 1 discretion in failing to grant Bullock’s Rule 33 motion.

2

3 III

4 Bullock asserts that the jury venire in his case did

5 not represent a fair cross-section of the community, in

6 violation of the Sixth Amendment. Bullock objected at trial

7 that none of the 100 jurors on the venire were African-

8 American or members of “any racial minority.” On appeal,

9 Bullock reasserts this argument and presents demographic

10 data for two cities (Albany and Binghamton) and one county

11 (Broome County) in the Northern District of New York.

12 To prevail on his cross-section claim, Bullock must

13 show

14 (1) that the group alleged to be excluded 15 is a ‘distinctive’ group in the community; 16 (2) that the representation of this group 17 in venires from which juries are selected 18 is not fair and reasonable in relation to 19 the number of such persons in the 20 community; and (3) that this 21 underrepresentation is due to systematic 22 exclusion of the group in the 23 jury-selection process. 24 25 Duren v. Missouri,

(1979).

26 Bullock loses because he has not established any

27 “systematic exclusion.” Id.; accord United States v.

28 Joyner,

(2d Cir. 2000) (denying Sixth

9 1 Amendment cross-section claim because defendant “made

2 absolutely no showing that African Americans were

3 systematically excluded”). To the contrary, Judge McAvoy

4 explained at trial that in constructing the jury pool, the

5 court drew potential jurors from the rolls of voters and

6 drivers. The motor vehicle roll was included specifically

7 “to make sure that [the] jury pool [wa]s balanced.” That

8 the district court failed in its attempt to achieve such

9 balance does not detract from the court’s demonstrably race-

10 neutral approach to juror selection.

11

12 IV

13 Finally, we reject Bullock’s argument that a sentence

14 of fifteen years for possession of eight rounds of

15 ammunition is so disproportionate as to constitute cruel and

16 unusual punishment under the Eighth Amendment. “[T]he

17 Eighth Amendment does not require strict proportionality

18 between crime and sentence, but rather forbids only extreme

19 sentences that are grossly disproportionate to the crime.”

20 Harmelin v. Michigan,

(Kennedy, J.,

21 plurality opinion); see also United States v. Yousef, 327

(2d Cir. 2003) (“The Eighth Amendment forbids

10 1 only extreme sentences that are grossly disproportionate to

2 the crime, and, with the exception of capital punishment

3 cases, successful Eighth Amendment challenges to the

4 proportionality of a sentence have been exceedingly rare.”

5 (internal quotation marks and citations omitted)).

6 Bullock has one prior conviction for robbery in the

7 first degree with intent to cause serious injury and two

8 convictions for robbery in the first degree with the use of

9 a dangerous weapon. In light of this criminal history, the

10 sentence for possession of ammunition cannot be construed as

11 “grossly disproportionate.” This Court has approved

12 sentences under the ACCA for offenses similar to Bullock’s.

13 See, e.g., United States v. Gamble,

(2d

14 Cir. 2004) (per curiam) (affirming sentence of 261 months

15 for defendant arrested for possession of a small quantity of

16 crack cocaine and possession of ammunition clip containing

17 six rounds).

18 CONCLUSION

19 For the foregoing reasons, the judgment of the district

20 court is affirmed.

11