
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1720                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JAMES H. ABERNATHY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Edward  F.  Grourke with  whom Finan  & Grourke  was on  brief for            ___________________            ________________        appellant.            Sheldon Whitehouse, United States Attorney, for appellee.            __________________  ______________________                                 ____________________                                    April 30, 1996                                 ____________________                      ALDRICH, Senior Circuit Judge.  James H. Abernathy,                               ____________________            driving  a Massachusetts registered  car in Providence, Rhode            Island,  was stopped by two  policemen, one of  whom, when he            peered into  defendant's vehicle, observed the butt  of a .45            caliber Colt  semi-automatic pistol  sticking out from  under            the driver's seat.  Indicted as a result, defendant initially            pleaded guilty to two counts:  Count I, as a convicted  felon            carrying a firearm that had  been in interstate commerce,  in            violation of 18 U.S.C.   922(g)(1); Count II, carrying an arm            that  had been  in  interstate commerce  with an  obliterated            serial number, in violation of 18 U.S.C.   922(k).  Defendant            was sentenced  to 110  months imprisonment followed  by three            years supervised release on  Count I, and to a  concurrent 60            months imprisonment on Count  II.  Over one year  later, upon            defendant's motion, the entire  sentence was vacated in order            to reinstate his right  to pursue a direct appeal,  which had            been dismissed for want of prosecution.  Thereafter, prior to            resentencing,  defendant moved  to  withdraw his  plea.   The            court  denied the  motion  and resentenced  defendant to  the            original terms.   This  appeal ensued, raising  the following            points: (1) the lawfulness of the stop; (2) whether defendant            should  have been  allowed  to  withdraw  his pleas  on  both            counts;  and  (3)  the  constitutionality  of   the  statutes            proscribing his conduct.   We affirm on (1) and  (3).  On (2)            we reverse and vacate the sentence with respect to Count II.                                         -2-                                      The Arrest                                      __________                      The  officers were  in  an unmarked  car, in  plain            clothes.   Some  of  the evidence  might support  defendant's            claim that this  was an unlawful  investigatory stop.   Ample            evidence, however, supports the district court's finding of a            justified  traffic violation  stop, including  testimony that            defendant travelled in the wrong lane of traffic and then ran            a stop sign.   No purpose would be  served in discussing  the            district court's careful  analysis and reasonable credibility            resolutions.    The  fact  that  the   officers  were  on  an            undercover  investigatory narcotics detail does not mean that            they could not lawfully make a proper traffic stop.                                Withdrawal of the Plea                                ______________________                      Withdrawal of a guilty plea prior to sentencing may            be granted for "fair and just  reason."  See Fed. R. Crim. P.                                                     ___            32(e) (1994);  United States  v. Cotal-Crespo,  47 F.3d 1,  3                           _____________     ____________            (1st Cir.), cert.  denied, ___  U.S. ___, 116  S.Ct. 94,  133                        _____________            L.Ed.2d 49 (1995).  After sentencing, the defendant must show            a defect attending the plea that amounts to a "miscarriage of            justice," or  "an omission inconsistent with  the rudimentary            demands of  fair procedure."  United  States v. Lopez-Pineda,                                          ______________    ____________            55 F.3d  693, 697  (1st Cir.) (internal  quotations omitted),            cert. denied, ___  U.S. ___  116 S.Ct. 259,  133 L.Ed.2d  183            ____________            (1995).     Although   the   United  States   attaches  great            significance  to the category to  which defendant ought to be                                         -3-            assigned, whether defendant's plea was  knowing and voluntary            within  the  meaning   of  Criminal  Rule  11  is   the  most            significant factor  under either standard.   United States v.                                                         _____________            Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).            ______                      With respect to Count  I this is a routine  case --            the court  was well warranted in  finding no misunderstanding            of the charge  by defendant, nor was there  any other flaw in            the plea proceedings.  Fed. R. Crim. P. 11(a)-(f).                      There is a serious question, however,  with respect            to Count II.  From the record, it appears that  the court, as            well  as counsel for  both the government  and the defendant,            understood that  the government was not  obliged to establish            actual knowledge  on defendant's part that  the serial number            had  been obliterated  at the  time of  his possession,1  and            communicated this misunderstanding to the defendant.  We find            this  failure to  apprise defendant  of the  elements  of the            charge fundamentally  inconsistent with fair  procedure in an                                            ____________________            1.  While, regrettably, some of our prior cases seem unclear,            cf. United States v.  Chapdelaine, 989 F.2d 28, 33  (1st Cir.            ___ _____________     ___________            1993), cert. denied, ___ U.S. ___, 114 S.Ct. 696, 126 L.Ed.2d                   ____________            663  (1994), United States v.  Smith, 940 F.2d  710, 713 (1st                         _____________     _____            Cir. 1991), it is indisputable that actual knowledge has been            a  necessary element of the  crime at least  since passage of            the  Firearms Owners'  Protection  Act, Pub.  L. No.  99-308,              104,  100  Stat.  456,   456  (1986),  which  modified  the            attendant penalty provision  to require knowing  violation of                                                    _______              922(k)  in order  for  criminal sanctions  to  attach.   18            U.S.C.   924(a)(1)(B).  See United States v. Hooker, 997 F.2d                                    ___ _____________    ______            67, 72 (5th Cir. 1993); United States v.  Haynes, 16 F.2d 29,                                    _____________     ______            34 (2nd Cir. 1994).  See  also United States v. De Leon Ruiz,                                 ___  ____ _____________    ____________            47 F.3d 452, 454 (1st Cir. 1995); United States v. Lanoue, 71                                              _____________    ______            F.3d 966, 983 (1st Cir. 1995).                                         -4-            acceptance of plea proceeding.  As the record contains strong            support for defendant's claim that he lacked knowledge of the            obliteration  -- at  the  very least  it  does not  establish            otherwise -- we cannot  say the error was harmless.   Compare                                                                  _______            United States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995).  See            _____________    ________                                 ___            Fed. R. Crim.  P. 11(h).   It  follows that  defendant has  a            right to withdraw his plea on Count II.                      Defendant's tangential suggestion that  the court's            imposition of  a two-level  enhancement to his  offense level            based on the obliteration  also requires reversal ignores the            fact that this enhancement explicitly applies "whether or not            the  defendant knew or had reason to believe that the firearm            . . .  had an  altered or obliterated  serial number."   USSG             2K2.1(b)(4), comment. (n.19).  See United States v. Schnell,                                            ___ _____________    _______            982 F.2d  216,  220-21  (7th  Cir. 1992);  United  States  v.                                                       ______________            Williams, 49 F.3d 92, 93 (2nd Cir. 1995).            ________                      Having in  mind that the  60-month sentence imposed            on Count II was to be served concurrently with the 110  month            sentence on Count I, the government  has suggested that there            may be  possible advantages  to defendant in  not withdrawing            the plea.  This  question is for defendant to  determine when            returned to the district court, and we express no opinion.                          Constitutionality of the Statutes                          _________________________________                      We  have recently  considered and  rejected similar            arguments to those raised  by defendant challenging the power                                         -5-            of Congress under the  Commerce Clause to enact  the statutes            underlying the charges  against him, in light of  the Supreme            Court's ruling in United  States v. Lopez, ___ U.S.  ___, 115                              ______________    _____            S.Ct. 1624, 131  L.Ed.2d 626  (1995).  See  United States  v.                                                   ___  _____________            Bennett,  75  F.3d  40,  49 (1st  Cir.  1996)  (challenge  to            _______            constitutionality  of 18  U.S.C.   922(g)(1)  is "hopeless");            United States v.  Diaz-Martinez, 71 F.3d  946, 953 (1st  Cir.            _____________     _____________            1995) (Lopez does not invalidate 18 U.S.C   922(k)).                   _____                      Affirmed in part, reversed in part, and remanded.                      ________          ________              ________                                         -6-
