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United States v. Shea

submitted*fn* san francisco california: September 17, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THOMAS M. SHEA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of California; D.C. No. CR-89-1327-RHS; Robert H. Schnacke, Senior District Judge, Presiding.

Choy, Alarcon, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Thomas M. Shea, a federal prisoner proceeding pro se and in forma pauperis, appeals from the district court's September 29, 1989 order denying Shea's 28 U.S.C. § 2255 motion to vacate or reduce his January 8, 1988 sentence for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g), 924(e)(1), & 924(e)(2)(B). Shea alleges (1) that his conviction was invalid because the grand jury foreperson neglected to sign the original copy of the indictment against him, and (2) that his sentence should be reduced because the Government failed to allege in his indictment or prove to the jury beyond a reasonable doubt that Shea had three previous convictions for a "violent felony" within the meaning of section 924(e)(1) & (e)(2)(B).

We AFFIRM.

FACTUAL PROCEDURAL BACKGROUND

On June 30, 1987, Shea kidnapped fifty-three year-old Shirley Cruz from a San Leandro parking lot at the point of a 12-guage shotgun. Shea and his accomplice Manuel Santistevan forced Cruz to drive them to her residence. There they bound Cruz and her son, Leo Villalobos, and stole two rings, an Uzi semiautomatic rifle, and $2,500 in cash.

In a separate incident, on July 5, 1987 at approximately 3:00 a.m., Shea tried to climb through the window of his estranged wife's residence. Unable to enter, he pointed a shotgun at her and warned her that if she called the police he would "deal with her or have somebody deal with her."

Shea was indicted on September 2, 1987 for being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On November 25, 1987, a jury found Shea guilty. In accordance with the enhanced penalty provision of 18 U.S.C. § 924(e)(1), Shea was sentenced to a mandatory term of fifteen years in prison without possibility of parole.

ANALYSIS

The district court found and the record indicates that the grand jury foreperson did sign the original copy of Shea's indictment on file with the court clerk. Thus, Shea's first contention is without merit.

As for the allegation of an improper sentence enhancement, the district court agreed with Shea's contention that under United States v. Chatman, 869 F.2d 525 (9th Cir. 1989), superseded, Taylor v. United States, 110 S. Ct. 2143 (1990), the crime of second-degree burglary does not constitute a "violent felony" within the meaning of section 924(e).*fn1 Nevertheless, relying on the presentence report, the district court found that Shea had three prior armed robbery convictions which did satisfy the penalty enhancement requirement of section 924(e)(1). Shea did not dispute this finding. See United States v. Potter, 895 F.2d 1231, 1238 (9th Cir.), cert. denied, 110 S. Ct. 3247 (1990).

Because the convictions were not elements of the statutory offense, the Government was not required to allege them in the indictment or prove them to the jury beyond a reasonable doubt. Potter, 895 F.2d at 1237-38 (1990) (construing current statute); United States v. West, 826 F.2d 909, 910-12 (9th Cir. 1987) (construing predecessor statute). See also United States v. Dunn, 935 F.2d 1053, 1057-58 (9th Cir. 1991).

AFFIRME ...


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