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United States v. Small

June 23, 2003

UNITED STATES OF AMERICA
v.
GARY SHERWOOD SMALL, APPELLANT.



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 00-cr-00160) District Judge: Robert J. Cindrich

Before: Rendell, Ambro and MAGILL,*fn1 Circuit Judges

The opinion of the court was delivered by: Magill, Senior Circuit Judge.

PRECEDENTIAL

Argued: March 11, 2003

OPINION OF THE COURT

On March 14, 2002, defendant-appellant Gary Sherwood Small entered a conditional guilty plea to possessing a firearm in violation of 18 U.S.C. § 922(g)(1) (2000). The district court sentenced Small to eight months' imprisonment followed by three years' supervised release, but allowed Small to remain on bail pending this appeal from the denial of Small's motion to dismiss. For the following reasons, we affirm.

I.

On April 14, 1994, the Naha District Court, in Naha, Japan, convicted Small for violations of the Japanese Act Controlling the Possession of Firearms and Swords, the Gunpowder Control Act, and the Customs Act, all of which were offenses punishable by a term of imprisonment exceeding one year.*fn2 On August 30, 2000, a federal grand jury in the Western District of Pennsylvania returned an indictment against Small, charging him with, inter alia, possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Small filed a motion to dismiss the indictment, which the district court denied. Subsequently, Small conditionally pled guilty to the § 922(g)(1) violation, pending the outcome of this appeal.

II.

Section 922(g)(1) generally provides that "[i]t shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to ship or transport or possess or receive a firearm or ammunition in interstate or foreign commerce or affecting interstate commerce. 18 U.S.C. § 922(g)(1). Small was convicted of crimes punishable by imprisonment for a term exceeding one year in Japan. Subsequently, he possessed a firearm in the United States. The dispositive question on appeal is whether the district court correctly recognized the judgment of the Japanese court for the purpose of Small's § 922(g)(1) conviction.*fn3

This is an issue of first impression in this court. Small makes two main arguments with regard to this issue: (1) the district court incorrectly held that the Japanese conviction was fundamentally fair by failing to look at the totality of the circumstances, and (2) the district court should have held an evidentiary hearing to determine whether the Japanese conviction was fundamentally fair. We disagree.

A.

First, our review of questions of law is plenary. United States v. Singletary, 268 F.3d 196, 198 (3d Cir. 2001). The district court correctly held that, prior to using the foreign conviction as a § 922 predicate offense, the court must satisfy itself that the foreign conviction comports with our notions of fundamental fairness as required by the Due Process Clause. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968); Restatement (Third) of Foreign Relations Law of the United States § 482 cmt. b (1987) (providing, in part, that "[a] court asked to recognize or enforce the judgment of a foreign court must satisfy itself of the essential fairness of the judicial system under which the judgment was rendered"). In other words, the district court correctly rejected the government's argument that any conviction, no matter how unfair, offensive, or absurd, can be a predicate offense for a § 922 conviction.

The government contends that Lewis v. United States, 445 U.S. 55 (1980) (holding that a state court felony conviction could be used as a predicate offense under 18 U.S.C. § 1202, even though it could be challenged in a collateral attack because the defendant was without counsel), and Custis v. United States, 511 U.S. 485 (1994) (holding that prior convictions are not subject to collateral attack at sentencing proceedings, except convictions obtained in violation of the right to counsel), control the issue. The distinctions between the case at bar and Lewis and Custis are clear; they include (1) that Lewis involved 18 U.S.C. § 1202, not § 922; (2) that Custis involved an attempted collateral attack on a prior conviction to avoid a sentencing enhancement, not an evaluation of a prior conviction as an element of a ...


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