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Bland v. United States

Court of Appeals of Columbia District

February 16, 2017

Charles Bland, Appellant,
v.
United States, Appellee.

          Submitted November 18, 2016

         On Appeal from the Superior Court of the District of Columbia Criminal Division

         Appeal from the Superior Court of the District of Columbia (CF2-8770-14) (Hon. Juliet McKenna, Trial Judge)

          Marc L. Resnick was on the brief, for appellant.

          Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Sara Vanore, and Danielle M. Kudla, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: GLICKMAN and MCLEESE, Associate Judges; and STEADMAN, Senior Judge.

         JUDGMENT

         This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of the Superior Court is affirmed.

          OPINION

          Stephen H. Glickman, Associate Judge

         Charles Bland appeals the enhancement of his sentence for unlawful possession of a firearm (UPF) under a statutory provision requiring a mandatory minimum prison term of three years instead of one year if the offender has a prior conviction for a "crime of violence other than conspiracy."[1] Bland argues that his constitutional rights under the Fifth and Sixth Amendments were violated because the finding that he had qualifying prior convictions for armed robbery and assault with a dangerous weapon (ADW) was made by the trial judge rather than by the jury that found him guilty of UPF. Bland further argues that the government failed to present sufficient evidence to support this predicate finding. For the following reasons, we reject these contentions and affirm the judgment of the Superior Court.

         First, as the government argues and appellant does not dispute, he waived his constitutional claim at trial in order to keep the jury from learning the nature of his prior convictions to his potential prejudice. To that end, he entered into a stipulation informing the jury only that he had a previous conviction for which the penalty was greater than one year. Through counsel, he expressly agreed that (1) whether his previous convictions were for a crime of violence was "not something that the jury has to know about"; and (2) he would "not . . . take the position . . . because the jury made no finding that the prior conviction was a crime of violence, that the Government is in any way precluded from" seeking a sentencing enhancement based on that fact. Appellant cannot take a contrary position in this court.[2]

         Second, even if we were to disregard his waiver, appellant cannot prevail on his constitutional claim. His premise, that the jury had to find his prior conviction for a violent crime in order for his sentence to be enhanced on that basis, is erroneous. "The Supreme Court established in Apprendi that the fact of a prior conviction does not have to be submitted to the jury's consideration before the judge may enhance the sentence."[3] Moreover, under the UPF statute, whether a prior conviction was for a "crime of violence other than conspiracy" for enhancement purposes is a legal, not factual, question.[4] Thus, the Constitution permitted the trial judge to determine whether appellant had such a prior conviction, just as it permitted the judge in Almendarez-Torres v. United States (the case in which the Supreme Court recognized the exception for prior convictions) to determine whether a prior conviction was for an "aggravated felony."[5]

         Third, we are satisfied the judge had sufficient grounds for finding that appellant was previously convicted of crimes of violence. It is true that the government did not provide the court with a certified copy of the judgment of conviction or equivalent documentation. However, before trial, pursuant to D.C. Code § 23-111 (a)(1) (2012 Repl.), the government filed with the court and served on appellant's counsel in open court an information stating that appellant would be subject to the enhanced penalties for UPF based on his convictions for armed robbery and assault with a dangerous weapon in Superior Court case number 77-FEL-6483. In addition, the government filed with the court a copy of its letter furnishing appellant with a certified copy of the judgment of conviction in that case. Armed robbery and ADW are both crimes of violence.[6] Thereafter, when appellant was preparing to stipulate that he had a prior felony conviction, the prosecutor informed the judge that "the defense does not dispute that it was a robbery conviction." Appellant did not contest that representation. When appellant appeared for sentencing, his counsel affirmatively acknowledged that the presentence report was "substantially accurate" and did not demur when the judge then stated that the report writer concluded that appellant had "a prior conviction for a crime of violence."[7] Further, appellant implicitly confirmed that his prior convictions were for substantive crimes of violence when he argued in the trial court that they could not be found to qualify for purposes of the sentencing enhancement only because they might have been based on a theory of conspiracy liability (a separate argument we shall discuss below). In all the discussions with the judge regarding his stipulation to a prior felony and, at sentencing, over the Apprendi issue, ...


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