     07-3059-cr
     United States v. Bullock


 1                      UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2008
 6
 7
 8   (Argued: October 3, 2008                 Decided: December 17, 2008)
 9
10                               Docket No. 07-3059-cr
11
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13
14   UNITED STATES OF AMERICA,
15
16               Appellee,
17
18               -v.-                                      07-3059-cr
19
20   WILLIAM BULLOCK, JR.,
21
22               Defendant-Appellant.
23
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25

26         Before:              JACOBS, Chief Judge, MINER and SOTOMAYOR,
27                              Circuit Judges.
28
29         Defendant-Appellant William Bullock, Jr. appeals from a

30   judgment of conviction entered in the United States District

31   Court for the Northern District of New York (McAvoy, J.) on

32   July 13, 2007.      He argues principally that under the Armed

33   Career Criminal Act, his prior convictions cannot be counted

34   because his civil rights had been restored.          For the

35   following reasons, we affirm.
 1                                 BRYAN E. ROUNDS, Rounds &
 2                                 Rounds, Kingston, NY , for
 3                                 Defendant-Appellant.
 4
 5                                 PAUL D. SILVER, Assistant United
 6                                 States Attorney (Carlos A.
 7                                 Moreno, Assistant United States
 8                                 Attorney, on the brief), for
 9                                 Glenn T. Suddaby, United States
10                                 Attorney for the Northern
11                                 District of New York, Albany,
12                                 NY , for Appellee.
13
14   DENNIS JACOBS, Chief Judge:
15
16       Defendant-Appellant William Bullock, Jr. appeals from a

17   judgment of conviction entered in the United States District

18   Court for the Northern District of New York (McAvoy, J.) on

19   July 13, 2007.   Bullock argues that:   (1) his conviction

20   (and sentence) under the Armed Career Criminal Act (“ACCA”),

21   18 U.S.C. § 924(e), must be set aside because his civil

22   rights had been restored; (2) his motion for a judgment of

23   acquittal or new trial should have been granted because

24   there was insufficient evidence to establish his

25   constructive possession of ammunition found in a shared

26   residence; (3) the jury venire was not representative of a

27   cross-section of the community; and (4) his sentence is

28   disproportionate in violation of the Eighth Amendment.       We

29   affirm.

30

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1                              BACKGROUND

2        In October 2005, a confidential informant working for

3    the Albany County Sheriff’s Department made two small

4    purchases of crack cocaine from Bullock.   Based on these

5    transactions, the Sheriff’s Department obtained a search

6    warrant for the residence that Bullock shared with his

7    fiancee.

8        During a search of the residence executed on October

9    12, 2005, law enforcement officials opened a dresser drawer

10   in the bedroom shared by Bullock and his fiancee and found a

11   small quantity of crack cocaine, some correspondence

12   addressed to Bullock, eight rounds of ammunition, zip-lock

13   baggies of a kind used to package cocaine, a speed loader

14   used to feed ammunition into a revolver, and $1,543 cash.

15   Thirty dollars of the cash was identified as pre-recorded

16   buy money paid to Bullock during a transaction with the

17   confidential informant.   Law enforcement officials also

18   seized a rifle, two shotguns, and assorted ammunition from a

19   duffel bag in Bullock’s garage.

20       Bullock was charged with two ACCA counts, one for

21   possessing ammunition and the other for possessing firearms

22   after having been convicted of at least three violent felony



                                   3
1    offenses in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

2    He was convicted on the ACCA count charging possession of

3    ammunition but acquitted on the ACCA count charging

4    possession of firearms.   He was also convicted on two counts

5    of possessing with intent to distribute and distributing

6    cocaine base and one count of possessing with intent to

7    distribute cocaine base in violation of 21 U.S.C. §

8    841(a)(1).   Bullock was sentenced principally to 188 months’

9    imprisonment on the ACCA count, eight months above the

10   mandatory minimum sentence, and to twelve months and a day

11   on each of the other counts to run concurrently with the

12   sentence on the ACCA count.

13

14                             DISCUSSION

15                                 I

16       Bullock argues that the imposition of a fifteen-year

17   mandatory minimum sentence was error because the ACCA does

18   not count convictions that have “been expunged, or set aside

19   or for which a person has been pardoned or has had civil

20   rights restored . . . unless such pardon, expungement, or

21   restoration of civil rights expressly provides that the

22   person may not ship, transport, possess, or receive


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1    firearms.”    18 U.S.C. § 921(a)(20).

2        Bullock contends that his civil rights had been

3    restored at the time of the present offense because he “had

4    been off parole for 11 years,” he “was entitled to vote,”

5    and New York State law did not restrict his right to possess

6    ammunition.

7        The restoration of civil rights involves three

8    components: (1) the right to vote; (2) the right to serve on

9    a jury; and (3) the right hold elective office.       See McGrath

10   v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995); see

11   also Logan v. United States, 128 S. Ct. 475, 480 (2007)

12   (“While § 921(a)(20) does not define the term ‘civil

13   rights,’ courts have held, and petitioner agrees, that the

14   civil rights relevant under the above-quoted provision are

15   the rights to vote, hold office, and serve on a jury.”).

16   Bullock’s rights to vote and hold office were arguably

17   restored by operation of law.       See N.Y. Election Law § 5-

18   106; N.Y. Civil Rights Law § 79.       However, his right to

19   serve on a jury was not; he was not pardoned; and none of

20   his prior convictions were expunged.       See N.Y. Judiciary Law

21   § 510(3) (“In order to qualify as a juror a person must not

22   . . . [n]ot have been convicted of a felony.”).



                                     5
1    Accordingly, Bullock cannot establish that his prior

2    convictions are not counted as “crime[s] punishable by

3    imprisonment for a term exceeding one year” as defined in 18

4    U.S.C. § 921(a)(20).

5        Bullock contends that he should not be penalized under

6    federal law for conduct (possession of ammunition) that he

7    was free to do under state law.     But this is a mere irony.

8    As the Seventh Circuit Court of Appeals has observed on

9    similar facts, “a federal prosecution for felon in

10   possession of ammunition . . . is in no manner dependent on

11   whether the state in which the crime is committed has

12   enacted a parallel statute criminalizing the same conduct.”

13   United States v. Wilson, 437 F.3d 616, 619 (7th Cir. 2006).

14   Obviously, federal law may bar conduct that a state allows.

15   The role of the state “in the federal statutory scheme . . .

16   is limited to the determination of whether the defendant is

17   a convicted felon.     Once the felony conviction is

18   established, federal law prohibits the possession of either

19   firearms or ammunition.”     Id. at 619-20.

20       Bullock also asserts that because his prior convictions

21   were for crimes committed in the 1970’s, imposition of a

22   fifteen-year mandatory minimum sentence in this case does



                                     6
1    not serve the congressional purpose of the ACCA to punish

2    dangerous recidivists.   Congress’s intent, however, is

3    irrelevant because the statutory wording at issue is

4    unambiguous.

5

6                                  II

7        Bullock challenges the denial of his motion for a

8    judgment of acquittal under Federal Rule of Criminal

9    Procedure 29 or a new trial under Federal Rule of Criminal

10   Procedure 33.

11       We “review de novo a district court’s denial of a Rule

12   29 motion, applying the same standard [for] sufficiency [of

13   the evidence] as the district court.”   United States v.

14   Florez, 447 F.3d 145, 154 (2d Cir. 2006).   That standard

15   places a heavy burden on the defendant, whose conviction

16   must be affirmed if “‘any rational trier of fact could have

17   found the essential elements of the crime beyond a

18   reasonable doubt.’”   United States v. MacPherson, 424 F.3d

19   183, 187 (2d Cir. 2005) (quoting Jackson v. Virginia, 443

20   U.S. 307, 319 (1979)).   As to a new trial, Rule 33 allows a

21   district court, upon motion by the defendant, to “vacate any

22   judgment and grant a new trial if the interest of justice so


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1    requires.”    Fed. R. Crim. P. 33(a).   But “[w]e will not

2    disturb the district court’s findings of fact [on a Rule 33

3    motion] unless [they are] clearly erroneous, and we will not

4    overturn the district court’s decision except for an abuse

5    of discretion.”    United States v. Locascio, 6 F.3d 924, 949

6    (2d Cir. 1993).

7        Bullock argues that there was insufficient evidence to

8    establish his constructive possession of the ammunition

9    found in the bedroom dresser drawer and that the government

10   proved no more than that Bullock and his fiancee shared the

11   bedroom and that Bullock had access to the dresser.

12       Bullock understates the quantum of evidence, which

13   included:    (1) that correspondence addressed to Bullock was

14   found in the drawer with the ammunition; (2) that the

15   ammunition was discovered in a drawer with men’s underwear

16   in a dresser with only men’s clothing; and (3) that $1,543

17   cash was found in the drawer, including $30 of pre-recorded

18   buy money given to Bullock a few days earlier.     Given this

19   evidence, a “rational trier of fact could have found the

20   essential elements of the crime beyond a reasonable doubt.”

21   United States v. Hardwick, 523 F.3d 94, 100 (2d Cir. 2008).

22   For the same reason, the district court did not abuse its



                                    8
1    discretion in failing to grant Bullock’s Rule 33 motion.

2

3                                   III

4           Bullock asserts that the jury venire in his case did

5    not represent a fair cross-section of the community, in

6    violation of the Sixth Amendment.     Bullock objected at trial

7    that none of the 100 jurors on the venire were African-

8    American or members of “any racial minority.”      On appeal,

9    Bullock reasserts this argument and presents demographic

10   data for two cities (Albany and Binghamton) and one county

11   (Broome County) in the Northern District of New York.

12          To prevail on his cross-section claim, Bullock must

13   show

14              (1) that the group alleged to be excluded
15              is a ‘distinctive’ group in the community;
16              (2) that the representation of this group
17              in venires from which juries are selected
18              is not fair and reasonable in relation to
19              the   number  of    such   persons   in  the
20              community;      and     (3)     that    this
21              underrepresentation is due to systematic
22              exclusion    of     the    group    in   the
23              jury-selection process.
24
25   Duren v. Missouri, 439 U.S. 357, 364 (1979).

26          Bullock loses because he has not established any

27   “systematic exclusion.”    Id.; accord United States v.

28   Joyner, 201 F.3d 61, 75 (2d Cir. 2000) (denying Sixth

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1    Amendment cross-section claim because defendant “made

2    absolutely no showing that African Americans were

3    systematically excluded”).   To the contrary, Judge McAvoy

4    explained at trial that in constructing the jury pool, the

5    court drew potential jurors from the rolls of voters and

6    drivers.   The motor vehicle roll was included specifically

7    “to make sure that [the] jury pool [wa]s balanced.”     That

8    the district court failed in its attempt to achieve such

9    balance does not detract from the court’s demonstrably race-

10   neutral approach to juror selection.

11

12                                 IV

13       Finally, we reject Bullock’s argument that a sentence

14   of fifteen years for possession of eight rounds of

15   ammunition is so disproportionate as to constitute cruel and

16   unusual punishment under the Eighth Amendment.   “[T]he

17   Eighth Amendment does not require strict proportionality

18   between crime and sentence, but rather forbids only extreme

19   sentences that are grossly disproportionate to the crime.”

20   Harmelin v. Michigan, 501 U.S. 957, 960 (Kennedy, J.,

21   plurality opinion); see also United States v. Yousef, 327

22   F.3d 56, 163 (2d Cir. 2003) (“The Eighth Amendment forbids



                                   10
1    only extreme sentences that are grossly disproportionate to

2    the crime, and, with the exception of capital punishment

3    cases, successful Eighth Amendment challenges to the

4    proportionality of a sentence have been exceedingly rare.”

5    (internal quotation marks and citations omitted)).

6        Bullock has one prior conviction for robbery in the

7    first degree with intent to cause serious injury and two

8    convictions for robbery in the first degree with the use of

9    a dangerous weapon.   In light of this criminal history, the

10   sentence for possession of ammunition cannot be construed as

11   “grossly disproportionate.”   This Court has approved

12   sentences under the ACCA for offenses similar to Bullock’s.

13   See, e.g., United States v. Gamble, 388 F.3d 74, 75-77 (2d

14   Cir. 2004) (per curiam) (affirming sentence of 261 months

15   for defendant arrested for possession of a small quantity of

16   crack cocaine and possession of ammunition clip containing

17   six rounds).

18                             CONCLUSION

19       For the foregoing reasons, the judgment of the district

20   court is affirmed.




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