                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-1999

USA v. Sanders
Precedential or Non-Precedential:

Docket 98-7273




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Filed January 21, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7273

UNITED STATES OF AMERICA

v.

CYRUS R. SANDERS
       Appellant

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Cr. No. 4: CR-96-0023/01)
District Judge: Honorable James F. McClure, Jr.

Argued November 17, 1998

Before: BECKER, Chief Judge, GREENBERG,
Circuit Judge, and McLAUGHLIN, District Judge*

(Filed January 21, 1999)

       KYLE W. RUDE, ESQUIRE
        (ARGUED)
       330 Pine Street
       P.O. Box 3033
       Williamsport, PA 17701

Counsel for Appellant



_________________________________________________________________

* Honorable Sean J. McLaughlin, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
       DAVID M. BARASCH, ESQUIRE
       United States Attorney
       THEODORE B. SMITH, III, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       DENNIS C. PFANNENSCHMIDT,
        ESQUIRE
       Assistant United States Attorney
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108

       Counsel for Appellee

OPINION OF THE COURT

McLAUGHLIN, District Judge.

Prior to its amendment effective September 13, 1994, 18
U.S.C. S922(j) made it unlawful "for any person to ... sell[ ]
or dispose of any stolen firearm ... which has been shipped
or transported in [interstate commerce], knowing or having
reasonable cause to believe that the firearm ... was stolen."
18 U.S.C.A. S922(j) (West 1976) and Historical and
Statutory Notes to 1990 Amendment (West Supp. 1998).
Appellant Cyrus Sanders, Jr. was convicted in the United
States District Court for the Middle District of Pennsylvania
for violations of this provision upon entering a plea of guilty
to charges of trafficking and conspiring to traffic in stolen
firearms. It is undisputed that the transactions for which
Sanders was convicted involved the sale and disposal of
firearms that had entered the stream of interstate
commerce prior to their theft, but not thereafter.

Sanders now appeals the District Court's denial of his
motion to set aside, correct, or vacate his sentence under
28 U.S.C. S2255. Appellant claims that his counsel was
ineffective in advising him to plead guilty to the trafficking
charges inasmuch as the applicable version of S922(j) did
not prohibit his particular conduct. We are thus called
upon to determine whether S922(j), prior to its amendment
in 1994, was intended to apply to transactions in stolen

                               2
firearms where the weapons moved in interstate commerce
only prior to being stolen. We conclude that it was.
Accordingly, we affirm the District Court's order.

I. BACKGROUND

On January 24, 1996, a federal grand jury in
Pennsylvania returned a four-count indictment against
Sanders charging him with conspiracy to possess afirearm
as a convicted felon and to traffic in stolenfirearms [Count
I], possession of a firearm by a convicted felon [Count II],
trafficking in stolen firearms in violation of 18 U.S.C.
S922(j) [Count III], and retaliating against a witness [Count
IV]. The government alleged that, between September 1990
and April 1994, Sanders conspired with two other
individuals to burglarize several residences in remote
locations. Once inside the residences, Sanders and his
cohorts would steal items with potential resale value,
including firearms. Other firearms were obtained by
providing false information to legitimate gun dealers. In all,
a total of forty-four guns ultimately were attributed to
Sanders. These firearms were sold to private individuals
and legitimate dealers, often at gun shows. All of the
firearms at issue were disposed of in Pennsylvania and
never entered interstate commerce after Sanders came into
possession of them.

The scheme finally ended after one of Sanders's fellow
conspirators was arrested and began cooperating with law
enforcement officials. Following his own indictment,
Sanders agreed to plead guilty to the charges of trafficking
and conspiring to traffic in stolen firearms on the advice of
his attorney. In exchange for his plea, the remaining
charges against him were dismissed. The District Court
subsequently sentenced Sanders to a seventy-month term
of incarceration.

On January 14, 1998 Sanders filed a motion to set aside,
correct, or vacate his sentence pursuant to 28 U.S.C.
S2255. Sanders claims that he committed no violation of
the law with respect to the trafficking charges set forth in
Counts I and III and, therefore, his attorney was ineffective
in advising him to plead guilty to those charges. More

                               3
specifically, Sanders contends that the version of 18 U.S.C.
S922(j) in effect at the time of his conduct required that the
firearms which are the subject of the trafficking offense
enter interstate commerce as stolen firearms, i.e., after
being stolen. Sanders further claims that he was prejudiced
by his counsel's ineffectiveness. He theorizes that, if he had
been able to successfully challenge the trafficking charges
under Counts I and III, he might have had an additional
"bargaining chip" with which to negotiate a better plea offer.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the instant appeal pursuant to
28 U.S.C. S2255 and S1291. United States v. Cleary, 46
F.3d 307, 309 (3d Cir. 1995). Because our disposition of
this appeal ultimately turns on an interpretation of
statutory law, we apply a plenary standard of review. See
Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998) (legal
component of an ineffective assistance of counsel claim in
the habeas context is subject to plenary review) (addressing
claim under 28 U.S.C. S2254).

III. DISCUSSION

A.

Initially, we must address the government's argument
that Sanders has procedurally defaulted his present claim
by failing to raise it either in the District Court or on direct
appeal. "Where a defendant has procedurally defaulted a
claim by failing to raise it on direct review, the claim may
be raised in habeas only if the defendant can first
demonstrate either `cause' and `actual prejudice,' ... or that
he is `actually innocent.' " Bousely v. United States, ___ U.S.
___, ___, 118 S. Ct. 1604, 1611 (1998) (internal citations
omitted). We will limit our inquiry, as the parties have, to
the issue of whether Sanders has shown "cause" and
"actual prejudice" for his procedural default.1
_________________________________________________________________

1. In light of our disposition of this appeal, Sanders would be unable in
any event to establish his "actual innocence" with respect to the S922(j)
charges.

                               4
Sanders contends that he can establish "cause" by virtue
of his counsel's ineffectiveness in advising him to plead
guilty to the trafficking and conspiracy charges under
Counts I and III of the indictment. A showing of
ineffectiveness of counsel which rises to the level of a
constitutional deprivation can indeed constitute the type of
prejudice that will excuse procedural default. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); Sistrunk v. Vaughn, 96
F.3d 666, 675 (3d Cir. 1996) (state prisoner habeas claim);
United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993)
(recognizing principle but declining to consider it on
appeal). Accord United States v. Guerra, 94 F.3d 989, 993-
94 (5th Cir. 1996); United States v. Cook, 45 F.3d 388, 392
(10th Cir. 1995). To prevail on such a claim, however, a
defendant must show both that counsel's performance fell
below an objective standard of reasonableness under
prevailing professional norms and that counsel's
deficiencies prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687 (1984); Sistrunk, 96 F.3d at 670.

The district judge rejected Sanders's ineffective assistance
of counsel claim based on a two-part analysis. First, the
judge observed that the government had acquired
overwhelming evidence of Sanders's guilt. He therefore
considered it reasonable for defense counsel to presume
that Sanders would ultimately be convicted by a jury. The
district judge then engaged in a lengthy and detailed
analysis of the potential ramifications of Sanders's plea
agreement for purposes of sentencing. He essentially
predicted that Sanders benefitted from his plea agreement
because he faced less potential jail time than he might
otherwise have faced if convicted on the felon-in-possession
charge under Count II of the Indictment. In light of these
circumstances, the judge found that defense counsel acted
reasonably in not moving to dismiss the trafficking charge
and instead advising Sanders to plead guilty to that charge
and the related conspiracy charge.

On appeal, Sanders argues that, regardless of the District
Court's ex post calculation of his supposed sentence on
Counts I, II, and IV, he would have been in a better plea
bargaining position to receive a shorter sentence if Count III
and part of Count I had been dismissed. However, we need

                               5
not reach this issue. Because we conclude that Sanders did
in fact engage in prohibited conduct under Counts I and III
of the indictment, it necessarily follows that Sanders's
counsel was not ineffective in advising him to plead guilty
to those charges rather than attempting to have them
dismissed. It further follows that Sanders's S2255 claim
would inevitably fail on the merits, as he can demonstrate
no legitimate basis for withdrawal of his guilty plea or for
vacating his sentence. We turn, then, to our examination of
the operative statutory provision.

B.

It is undisputed that the conduct for which Sanders was
charged occurred between September 1990 and April 1994.
The parties therefore agree that, for purposes of this case,
we must apply 18 U.S.C. S922(j) as it existed following its
amendment in 1990 and prior to its amendment effective
September 13, 1994. See 18 U.S.C.A. S922(j) (West 1976)
and Historical and Statutory Notes to S922, 1990
Amendment (West Supp. 1998). This version of S922(j)
reads as follows:

       It shall be unlawful for any person to receive, conceal,
       store, barter, sell, or dispose of any stolen firearm or
       stolen ammunition, or pledge or accept as security for
       a loan any stolen firearm or stolen ammunition, which
       is moving as, which is a part of, which constitutes, or
       which has been shipped or transported in, interstate or
       foreign commerce, knowing or having reasonable cause
       to believe that the firearm or ammunition was stolen.

Id.

Sanders interprets the foregoing language to mean that
the subject firearm must have traveled in interstate
commerce as a stolen firearm -- i.e., the theft must have
occurred prior to the stolen firearm's movement in
interstate commerce. The government interprets this same
language to mean only that the firearm which is the subject
of the trafficking offense must have passed in interstate
commerce at some time, whether before or after it was
stolen. The significance of these differing interpretations is
clear. Under the first interpretation, Sanders did not

                               6
commit a violation of S922(j) because the firearms of which
he disposed never passed through interstate commerce
after he stole them. Under the government's interpretation,
Sanders did in fact commit a violation of S922(j) and,
therefore, his counsel could not have been ineffective in
failing to have those charges dismissed.

In ascertaining the meaning of a statutory provision, we
are instructed to "look not only to the particular statutory
language, but to the design of the statute as a whole and
to its object and policy." Crandon v. United States, 494 U.S.
152, 158 (1990) (citations omitted). See also McElroy v.
United States, 455 U.S. 642, 658 (1982) (Court looks to
statutory language and legislative history in determining
Congress's intent). If a "reasonable doubt persists about a
statute's intended scope even after resort to `the language
and structure, legislative history, and motivating policies' of
the statute," Moskal v. United States, 498 U.S. 103, 108
(1990) (emphasis in original), then the rule of lenity applies
and the statute is to be narrowly construed. Id. (citations
omitted); Crandon, 494 U.S. at 158.

On its face, S922(j) appears to be susceptible to two
alternative interpretations. On the one hand, it can be
argued that the phrase "which has been shipped or
transported in [interstate commerce]" modifies only the
word "firearm" and that the term "stolen firearm" merely
indicates the status of the firearm at the time of the
proscribed transaction. This is the view adopted by the
government. The result of this interpretation is that an
offense is committed when a stolen firearm is sold, disposed
of, etc. by one having reason to know that it was stolen, as
long as the firearm passed through interstate commerce at
some time, whether before or after its theft. On the other
hand, Sanders urges that the phrase "which has been
shipped or transported in [interstate commerce]" modifies
the phrase "stolen firearm," such that thefirearm must
have moved through interstate commerce as a stolen
firearm. We view each of these proposed interpretations as
facially plausible.

If there is any ambiguity in the language of S922(j),
however, we think it is resolved by reference to the

                               7
legislative history. It is instructive to note the prior version
of S922(j) which, until its amendment in 1990, stated:

       It shall be unlawful for any person to receive, conceal,
       store, barter, sell, or dispose of any stolen firearm or
       stolen ammunition, or pledge or accept as security for
       a loan any stolen firearm or stolen ammunition, which
       is moving as, which is a part of, or which constitutes,
       interstate or foreign commerce, knowing or having
       reasonable cause to believe that the firearm or
       ammunition was stolen.

Federal courts applying this provision had interpreted it as
requiring two elements: first, the firearm's movement
through interstate commerce had to be on-going at the time
of the underlying trafficking offense, see United States v.
Jones, 564 F.2d 1315, 1316 (9th Cir. 1977), United States
v. Ruffin, 490 F.2d 557, 560-61 (8th Cir. 1974); and
second, the firearm had to be stolen at the time of its
movement through interstate commerce. See United States
v. West, 562 F.2d 375, 377-78 (6th Cir. 1977), cert. denied,
435 U.S. 922 (1978).

In 1990 Congress amended S922(j) so as to include
within its scope firearms "which ha[ve] been shipped or
transported in [interstate commerce]." Pub.L. 101-647
S2202(a). It is clear from the legislative history that this
amendment was intended to expand the jurisdiction of
federal courts by broadening the scope of the interstate
commerce nexus. In addressing the amendment before the
House Judiciary Subcommittee on Crime, Assistant
Attorney General Edward S. G. Dennis observed that the
change in 922(j) "would expand federal jurisdiction to
permit federal prosecution for trafficking infirearms which
have been stolen or have had the serial number removed or
altered and which have moved in interstate commerce at
any time." Comprehensive Violent Crime Control Act of 1989:
Hearing on H.R. 2709 Before the Subcommittee on Crime of
the House Committee on the Judiciary, 101st Cong.2d Sess.
79-80 (1990) (emphasis added). The report of the House
Judiciary Committee similarly notes that the amendment to
S922(j) "expand[s] Federal jurisdiction to permit prosecution
for transactions involving stolen firearms ... where the
firearms have already moved in interstate or foreign

                               8
commerce." H.R. Rep. No. 681, 101st Cong., 2d Sess., pt. 1
at 106 (1990), reprinted in 1990 U.S. Code Cong. & Admin.
News 6472, 6510 (emphasis added).

Sanders opines that, in enacting the 1990 amendment so
as to expand federal jurisdiction under S922(j), Congress
intended to do no more than eliminate the former
requirement of contemporaneous interstate commerce
travel at the time of the proscribed firearm trafficking
offense. In other words, according to Sanders, the provision
covers firearms that have come to rest after completing
their interstate commerce journey, provided that the
firearms were stolen at the time they moved in interstate
commerce. As support for this position, Sanders refers us
to United States v. Cruz, 50 F.3d 714 (9th Cir. 1995), cert.
denied, ___ U.S. ___, 118 S. Ct. 611 (1997). In Cruz, the
Ninth Circuit Court of Appeals specifically considered
whether S922(j), as amended in 1990, applied to the receipt
of a stolen firearm which had not traveled in interstate
commerce after its theft. The court examined both the
language of S922(j) and its legislative history and concluded
that Congress's intent as to the specific scope of the statute
remained unclear. It noted, for example, that,

       [w]hile the text of [Assistant Attorney General] Dennis's
       statement tends to support an expansive
       interpretation, a footnote remarks that under S922(j)
       and (k) (prior to amendment), it was an offense to
       traffic in such firearms only `if they are actually moving
       in or a part of interstate commerce at the time of the
       offense,' id. at 80 n. 10, which tends to support the
       less expansive interpretation that the legislation was
       aimed at removing the contemporaneousness
       requirement rather than the requirement of travel in
       interstate commerce as a stolen weapon.

50 F.3d at 718. With respect to the report of the House
Judiciary Committee, the Ninth Circuit found the
committee's reference to firearms that "have already moved
in interstate ... commerce" to be ambiguous since "it could
refer either to movement before or after the theft, or only to
movement after the theft but before receipt." Id.
Consequently, the court applied the rule of lenity and held
that the statute only applies to trafficking offenses where

                                9
the subject firearm traveled in interstate commerce as a
stolen firearm. 50 F.3d at 719.

The government, by contrast, urges us to accept the view
of the Sixth Circuit Court of Appeals as set forth in United
States v. Honaker, 5 F.3d 160 (6th Cir. 1993), cert. denied,
510 U.S. 1180 (1994). In that case, a majority of the circuit
panel held that S922(j), as amended in 1990, encompasses
cases where the stolen firearm moved in interstate
commerce only prior to its theft. Id. at 162. The majority
acknowledged that the language of the statute was
somewhat ambiguous but determined that any ambiguity
was clarified by resort to the comments of the House
Judiciary Committee and the remarks of Assistant Attorney
General Dennis. Id. The court found that "[t]hese two
statements leave no doubt that Congress intended S922 (j)
to apply to firearms that have traveled in interstate
commerce, both prior to or after being stolen." Id. See also
United States v. Staula, 80 F.3d 596, 605 (1st Cir. 1996)
(holding that, under S922(j), it is sufficient if weapon floats
in the stream of interstate commerce at some point prior to
the commission of the offense of conviction), cert. denied,
___ U.S. ___, 117 S. Ct. 156 (1996).

We find this latter view to be more compelling than that
taken by the Ninth Circuit in Cruz. As Judge Guy noted in
his concurring opinion in Honaker, there is nothing in the
legislative history of S922(j) to suggest that the sole purpose
of the 1990 amendment was to end the statute's
requirement of contemporaneous interstate movement. See
5 F.3d at 164 (Guy, J., concurring). On the contrary, the
comments of both the House Judiciary Committee and
Assistant Attorney General Dennis regarding Congress's
intent to expand federal jurisdiction suggest that"Congress
sought to deploy the full extent of federal jurisdiction, as
emanating from the Commerce Clause, to combat
trafficking in stolen weapons." Id. Furthermore, we, like
Judge Guy, presume that, if Congress had intended a more
narrow purpose, it knew how to say so clearly. Cf. 18
U.S.C.A. S2313(a) (West Supp. 1998) (proscribing
transactions in "any motor vehicle or aircraft, which has
crossed a State or United States boundary after being
stolen, [by persons] knowing the same to have been stolen")

                               10
(emphasis added); 18 U.S.C.A. S2315 (West   Supp. 1998)
(proscribing, inter alia, transactions in   certain goods,
moneys and securities "which have crossed   a State or
United States boundary after being stolen   ... [by persons]
knowing the same to have been stolen...")   (emphasis
added).

In sum, then, we conclude that S922(j), as amended in
1990, was intended by Congress to apply to cases like this
one where the stolen firearms traveled in interstate
commerce only prior to their theft.2 In light of this
conclusion, Appellant's claim of ineffective assistance of
counsel fails. There can be no Sixth Amendment
deprivation of effective counsel based on an attorney's
failure to raise a meritless argument. See Newsted v.
Gibson, 158 F.3d 1085, 1090 (10th Cir. 1998) (S2254
claim); Rodriguez v. United States, 17 F.3d 225, 226 (8th
Cir. 1994); Shah v. United States, 878 F.2d 1156, 1162 (9th
Cir. 1989) (citation omitted). Accordingly, the order of the
District Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

2. Two other circuits have rendered unpublished decisions arriving at the
same conclusion. See United States v. Alford, 60 F.3d 830 (Table
Disposition No. 95-1627), 1995 WL 410983 (8th Cir. July 13, 1995);
United States v. Andrews, 45 F.3d 428 (Table Disposition No. 94-5109),
1994 WL 717589 (4th Cir. Dec. 29, 1994).

                               11
