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U.S. v. Cornish

January 3, 1997

UNITED STATES OF AMERICA

v.

ANTHONY CORNISH, A/K/A JERJUAN MITCHALL UNITED STATES OF AMERICA, APPELLANT AT NO. 95-2086 ANTHONY CORNISH, APPELLANT AT NO. 95-2101



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 94-cr-00378)

BEFORE: SCIRICA and ROTH, Circuit Judges, and RESTANI, Judge, Court of International Trade. *fn*

RESTANI, Judge.

Argued June 12, 1996

Filed January 3, 1997

OPINION OF THE COURT

This action is before the court on appeal by the United States and cross-appeal by defendant Anthony Cornish a/k/a Jerjuan Mitchall ("Cornish"). The government contests the district court's determination that Cornish's prior third degree robbery conviction is not a "violent felony" for sentence enhancement purposes, while Cornish challenges the district court's jury instructions with regard to the stipulated fact of Cornish's prior felony conviction. We find no error in the district court's jury instructions, but find that the district court did err in failing to apply the enhanced penalties provided by 18 U.S.C. Section(s) 924(e) and USSG Section(s) 4B1.4 and remand for resentencing.

BACKGROUND

On April 16, 1994, two police officers were on routine patrol in a marked police vehicle when they observed a car being operated in a reckless manner. (Supp. App. 50a-52a) The officers attempted to stop the vehicle, but the vehicle reversed its direction and fled. They pursued the vehicle, using their lights and sirens in an attempt to stop the vehicle. (Supp. App. 53a) While fleeing the police, the driver of the vehicle, later identified as Cornish, threw a gun out of the driver's side window, jumped out of the vehicle, and fled on foot. (Supp. App. 54a) The vehicle continued forward a short distance and came to rest after hitting a fence. (Supp. App. 54a) One officer recovered the weapon, a .38 caliber Colt handgun, while two others apprehended Cornish several blocks away as he attempted to climb over a fence. (Supp. App. 54a-55a, 187a)

On September 21, 1994, Cornish was indicted by a federal grand jury on a single count of possession of a firearm by a convicted felon pursuant to 18 U.S.C. Section(s) 922(g) (1994). *fn1 Following a jury trial, Cornish was found guilty on February 15, 1995. At the sentencing hearing, the district court held that Cornish's prior conviction for third degree robbery is not a "violent felony" pursuant to 18 U.S.C. 924(e) (1994) *fn2 and U.S. Sentencing Guidelines Manual ("USSG") 4B1.4 (1995). On November 16, 1995, Cornish was sentenced to 108 months incarceration, five years supervised release, and a $50 special assessment.

STANDARD OF REVIEW

As Cornish did not object to the district court's jury instructions below, our review is limited to plain error under Fed. R. Crim. P. 52(b). See United States v. Retos, 25 F.3d 1220, 1228-29 (3d Cir. 1994). We have plenary review over the district court's interpretation and application of the sentencing guidelines to the facts found. See United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992).

DISCUSSION

I.

Cornish claims that the district court violated his constitutional rights protected by the Fifth and Sixth Amendments to United States Constitution when it instructed the jury to "accept" the stipulated fact of his prior felony conviction. By so instructing the jury, Cornish argues that the court improperly removed that element of the crime from the jury's consideration.

The Fifth Amendment guarantees that no one will be deprived of liberty "without due process of law," and the Sixth Amendment ensures that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. V & VI. The Supreme Court has held that, "these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 115 S. Ct. 2310, 2313 (1995). A necessary corollary to this rule is that, "a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with ...


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