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UNITED STATES v. HARKEY

March 23, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL EUGENE HARKEY, Defendant



The opinion of the court was delivered by: QUACKENBUSH

 JUSTIN L. QUACKENBUSH, UNITED STATES DISTRICT JUDGE.

 On January 27, 1989, this court imposed a sentence of 5 years on the defendant, based upon his having been found guilty by a jury on October 18, 1988 of being a felon in possession of a firearm. This 5-year sentence is the maximum permitted by law; however, the Government contended that the court was obligated to impose a mandatory 15-year term pursuant to 18 U.S.C. § 924(e)(1), based upon the prior burglary convictions of the defendant. On January 27, 1989, the court rendered its oral opinion rejecting the contention of the Government and stated its reasons for that rejection. This Memorandum Opinion is intended to memorialize the court's oral ruling and to incorporate recent court rulings delivered subsequent to this court's oral ruling.

 FACTUAL BACKGROUND

 In the summer of 1988, Matthew Weist, a paid Government informant, informed Spokane police officers and/or A.T.F. agents that his friend Michael Harkey owned a firearm. The police officers directed Mr. Weist to talk with Mr. Harkey on the phone while they recorded the conversations to see if Mr. Harkey would make an admission of possession of a firearm. Weist informed the officers that he believed Harkey owned a.22 caliber pistol.

 Thereafter, Weist concocted a story, with the assistance of the police officers, that he was to meet a "biker," who Weist was afraid of, to collect a debt. Weist told this false story to the defendant Harkey and asked Harkey to accompany him to Sullivan Park to meet the "biker." Weist requested Harkey to bring his pistol. Harkey agreed to accompany Weist to Sullivan Park, where the police were waiting. Harkey was arrested, searched, and found to be in possession of a single-shot Derringer pistol.

 On August 10, 1988, Harkey was indicted on the charge of being a felon in possession of a firearm. Mr. Harkey refused to plead guilty to the charge, alleging he was entrapped into committing the crime by the police and their informant, Mr. Weist. Thereafter, on September 26, 1988, the Government filed an Information in which it claimed that if convicted, Harkey should be sentenced to not less than 15 years without parole by reason of his prior burglary convictions.

 Harkey was found guilty of the firearm charge on October 18, 1988. An initial sentencing hearing took place on November 18, 1988. It is undisputed that Harkey has two prior felony convictions for first degree burglary and three prior felony convictions for second degree burglary, all under the laws of the State of Washington.

 ANALYSIS

 Subsection 924(e)(1)provides that:

 
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $ 25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. (Emphasis added).

 Subsection 924(e)(2)(B) defines the term "violent felony" as:

 
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 use of explosives, or otherwise involves conduct that presents a serious potential ...

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