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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

UNITED STATES OF AMERICA )

))

vs. ) 1:12-cr- 45

)

) Judge Collier/Carter

EDWARD YOUNG )

UNITED STATES RESPONSE TO

DEFENDANTS SENTENCING MEMORANDUM

Comes the United States of America, by and through its United States Attorney William

C. Killian, United States Attorney for the Eastern District of Tennessee, and Assistant United

States Attorney Christopher D. Poole, and respectfully responds to the Defendants sentencing

memorandum that the defendant is properly classified as an Armed Career Criminal and should

be sentenced as such. Court File # 35.

Facts

On October 1, and October 3, 2011, the Chattanooga Police Department (CPD)

received reports of several burglaries of storage building and vehicles. There was video

surveillance of the areas burglarized and a suspect car was identified which CPD Detective

Tomisek was able to trace to the defendant. On October 5, 2011, Detective Tomisek went to the

defendants residence and received consent to search from the defendant. Detective Tomisek and

two other officers witnessed the defendant sign a written consent to search from for, among other

places, the defendants residence. Detective Tomisek found several stolen items and seven

shotgun shells. The shells were in a box in a chest of drawers next to the defendants bed. While

Detective Tomisek was holding the shells in his hand, the defendant voluntarily stated that they

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were his. The defendant later gave a taped statement in which he confessed to the burglaries.

The defendant admitted to having his son help him load the stolen property into his car.

The defendant was a convicted felon at the time he possessed the ammunition having

sustained at least the following felony convictions: four Aggravated Burglaries, three Burglaries,

five Thefts.

Argument

A person convicted as a felon in possession of a firearm or ammunition in violation of 18

U.S.C. 922(g) who has three prior convictions for a violent felony is considered an Armed

Career Criminal and is subject to a statutory mandatory minimum fifteen-year sentence and a

maximum sentence of life. 18 U.S.C. 924(e)(1). A violent felony includes any felony 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 risk of physical injury to another. 18 U.S.C.

924(e)(1)(B).

The defendant qualifies as an Armed Career Criminal by virtue of his at least four

convictions for Aggravated Burglary and at least three convictions for burglary. PSR para. 20-1

22. The defendant does not dispute that he has the predicate convictions he argues, however, that

application of the ACCA in this case violates the Fifth and Eighth Amendments of the United

States Constitution. His arguments are without merit and must fail.

According to the PSR, the defendant has seven convictions for Aggravated Burglary and1

four convictions for burglary (if you count each count of conviction), but the United States only

has judgments for four aggravated burglaries and three burglaries. In either event, the defendant

clearly exceeds the required three predicate convictions.

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The Sixth Circuit has previously held that the mandatory minimum sentence required by

the Armed Career Criminal Act does not violate the equal protection or due process provisions of

the United States Constitution. E.g., United States v. Jones, 52 F. Appx 244, 247 (6th Cir.

2002) (collecting cases).

The defendant argues that he did not have fair notice that possession of ammunition was

illegal and clearly did not know that he faced a mandatory minimum sentence of 15 years for

possession of ammunition. While the United States could not find a Sixth Circuit case directly

on point with this argument in relation to ammunition possession, the 11 Circuit has consideredth

this argument and rejected it. In United States v. Phillips, 177 Fed. Appx. 942 (11 Cir. 2006),th

the Court wrote,

Phillips does not dispute that he committed the predicate offenses

that made him eligible for sentencing under 922(g) and 924(e).

Instead, Phillips contends that the laws violate the Eighth

Amendment and equal protection component of the Fifth

Amendment's Due Process Clause because: (1) upon his release

from Florida state prison, the Florida Department of Corrections

failed to notify him that federal law bans the possession of

ammunition by a convicted felon; and (2) punishing an individualfor possession of ammunition without proving that the person also

possessed a weapon that would make the bullets dangerous lacks a

rational relationship to a legitimate governmental purpose.

We hold that Phillips's Eighth Amendment argument must fail.

Phillips's first argument fails because 922(g) only requires that

the defendant knowingly possess the ammunition, not that he

knows the possession is illegal. United States v. Deleveaux, 205

F.3d 1292, 1298 (11th Cir.2000). The indictment charged Phillips

with knowingly possessing the ammunition, and the jury

determined that the government proved that element. Therefore,

the government satisfied its burden on that issue.

Phillips's second argument fails because [t]he Eighth Amendment

... contains a narrow proportionality principle that applies to

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noncapital sentences.Ewing v. California, 538 U.S. 11, 20, 123

S.Ct. 1179, 155 L.Ed.2d 108 (2003). In United States v. Lyons, we

relied onEwingin upholding the conviction and sentence of a

defendant, a convicted felon, sentenced to 235 months'

imprisonment for possession of four .22 bullets. 403 F.3d 1248,

1256-57 (11th Cir.2005). Even though a thirty-year sentence formere possession of ammunition may be greater than necessary to

meet the goals of punishment, the decision is for Congress in the

first instance, and we cannot conclude on our narrow review that

the sentence here amounts to cruel and unusual punishment.

Id. at 953.

The defendant inPhillips also argued, as the defendant does in this case, that

ammunition without a firearm is not dangerous. In response to this argument thePhillips court

noted,

Just as Congress could rationally decide to punish possession of a

firearm by a convicted felon without requiring possession of

ammunition, Congress could also rationally decide to punish

possession of ammunition by a convicted felon without also

requiring possession of a firearm. Congress made a rational

decision that certain individuals should be required to separate

themselves fully from certain wares common to the criminal

enterprise, and it is not for us to invalidate that decision.

Id. at 954.

The defendant has simply not offered a legitimate reason for this Court to violate the rational

decision of Congress to punish Armed Career Criminals who knowingly possess ammunition

with a mandatory minimum sentence.

The defendant also alleges that his sentence violates the Eighth Amendments prohibition

against cruel and unusual punishment. Court File #35, Defendants Memorandum p. 7-12.

Courts apply a narrow proportionality principle that does not require strict proportionality

between crime and sentence, but forbids only extreme sentences that are grossly

disproportionate. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (affirming a sentence of

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a firearm or ammunition for purposes of Title 18, United States Code, Section 922(g)(1) or

924(e).

The defendant is correctly classified as an armed career criminal and should be sentenced

accordingly, and he has not established that at least a fifteen-year sentence, as mandated by

Congress, is unconstitutional.

Conclusion

For the foregoing reasons the United States submits this Court should DENY the

defendants motion regarding the application of the Armed Career Criminal Act in this case.

Specifically, this Court should find the defendant is an Armed Career Criminal and sentence him

to at least fifteen years imprisonment.

Respectfully submitted,

William C. Killian

United States Attorney

/s/ Christopher D. Poole

Christopher D. PooleAssistant U. S. Attorney

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing pleading has been served

upon all parties at interest in this case or counsel for said parties via the U.S. District Courts

Electronic Case Filing System.

This 8th day of May, 2013.

WILLIAM C. KILLIANUnited States Attorney

/s/ Christopher D. Poole

Christopher D. Poole

Assistant U. S. Attorney

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