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UNITED STATES v. MATHIS

May 14, 1990

UNITED STATES OF AMERICA
v.
EDDIE J. MATHIS


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 Defendant Eddie Mathis stands indicted under 18 U.S.C. section 922(g)(1) for one count of possession of a firearm by a felon. The indictment alleges that Mathis has been convicted of three prior violent felonies, thus subjecting him, if convicted, to a mandatory minimum fifteen year term of imprisonment pursuant to 18 U.S.C. section 924(e)(1), a sentencing enhancement provision. Mathis has moved to strike the portion of the indictment invoking § 924(e)(1), and the United States has opposed. The motion has been fully briefed and argued.

 Section 924(e)(1) provides a mandatory fifteen year term, without parole, for any person who violates § 922(g)(1) and has three previous convictions for a violent felony or serious drug offense, committed on separate occasions. Mathis asserts that one of the three convictions alleged in the indictment, a July 2, 1975, D.C. Superior Court conviction for robbery, was not for a violent felony or serious drug offense. *fn1"

 There is no assertion that Mathis's 1975 conviction constituted a drug offense, so the question is whether it was a "violent felony" as defined for the purposes of § 924(e)(1). The applicable definition, at § 924(e)(2)(B), states in relevant part:

 
the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that --
 
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
 
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

 The offense for which Mathis was convicted on July 2, 1975, was robbery, D.C. Code § 22-2901. The statutory provision reads:

 Section 924(e)(1), as amended by the Career Criminal Amendments Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, has been the subject of review and analysis by courts of appeals in other circuits. See, e.g., United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988); United States v. Dombrowski, 877 F.2d 520 (7th Cir. 1989); United States v. Hill, 863 F.2d 1575 (11th Cir. 1989); United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988).

 In deciding whether an offense is a "violent felony" under the definition in subsection (i) of § 924(e)(2)(B), a court must examine the statute of the offense and determine whether it has "as an element" the use of force; the court should not examine the actual conduct underlying the offense. Headspeth, 852 F.2d at 756; Sherbondy, 865 F.2d at 1005-06. This is plain from the statutory language. As the court stated in Sherbondy :

 
There is nothing to suggest that Congress, when it included the "element" requirement in subsection (i), did not intend the word to have its accepted meaning in the criminal law, namely a "constituent part[] of a crime which must be proved by the prosecution to sustain a conviction." Black's Law Dictionary 467 (5th ed. 1979). Establishing the precise nature of the ...

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