                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2009

USA v. McCode
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4665




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 07-4665
                                     _____________

                            UNITED STATES OF AMERICA

                                              v.

                                    JAMES MCCODE,
                                        a/k/a J,

                                           Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (Criminal No. 06-cr-00543-4)
                       District Judge: Honorable J. Curtis Joyner
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    January 9, 2009
                                  ________________

 Before: CHAGARES, HARDIMAN Circuit Judges, and ELLIS, Senior District Judge.*

                             (Opinion Filed: March 20, 2009)
                                    ______________

                                        OPINION
                                     ______________




       *
         The Honorable T. S. Ellis III, Senior District Judge, United States District Court
for the Eastern District of Virginia, sitting by designation.
ELLIS, Senior District Judge.

         James McCode appeals from his judgment of conviction on Counts One, Two,

Three, Five and Six of a superseding indictment, arguing (i) that the enhanced sentences

imposed on Counts Five and Six pursuant to the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), are in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and (ii)

that the District Court abused its discretion in declining to sever Count Six from the

remaining counts for purposes of trial. For the reasons stated here, we will affirm the

District Court’s judgment in both respects.

                                              I.

         Because we write solely for the benefit of the parties, we only briefly summarize

the essential facts and procedural history.

         On October 19, 2006, McCode was charged in a superseding indictment with (i)

conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. §

1951(a) (Count One), (ii) interference with interstate commerce by robbery and aiding

and abetting, in violation of 18 U.S.C. § 1951(a) and 2 (Count Two), (iii) carrying and

using a firearm during and in relation to a crime of violence and aiding and abetting, in

violation of 18 U.S.C. § 924(c)(1) and 2 (Count Three), and (iv) two counts of possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts Five and

Six).1



         1
             Three co-defendants were charged together with McCode in Counts One, Two

                                              2
       Counts One, Two, Three and Five all arose out of an armed robbery of a

Philadelphia AutoZone store on July 18, 2006. Early that morning, McCode and a co-

conspirator entered the store wearing clothing designed to disguise their faces; each was

armed with a firearm. In the course of the robbery, the store manager was ordered to

remove money from the store safe, while another employee was forced to lie face down at

gunpoint. McCode and the co-conspirator then fled the store with $1,025 of stolen money

in their possession and met two other alleged co-conspirators who were waiting nearby at

a predetermined location. Among the weapons used by McCode and his co-conspirators

on this occasion was a loaded silver Taurus TT92 9MM handgun, which was recovered

on the day of the robbery from a co-conspirator’s vehicle.

       Several months after the robbery, on October 5, 2006, McCode was arrested when

he appeared for a meeting with his parole officer. Later that day, law enforcement agents

traveled to McCode’s residence, where they interviewed his live-in girlfriend. In the

course of that visit, agents seized two additional firearms from the residence, namely a Hi

Standard .22 caliber revolver and a Savage Industries Winchester 110E rifle. It is these

additional firearms that form the basis of Count Six. In this regard, while the superseding

indictment charged in Count Six that McCode possessed these firearms “[o]n or about

July 18, 2006 to October 5, 2006,” it did not charge, nor did the evidence reflect, that

either firearm seized from McCode’s residence on October 5, 2006, was used in the


and Three of the superseding indictment. Count Four, in turn, charged a co-defendant
with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

                                              3
course of the July 18, 2006 armed robbery of the Philadelphia AutoZone store. The

government nonetheless joined Count Six with the remaining counts of the superseding

indictment given that the offenses were “of the same or similar character,” as permitted

by Rule 8(a), Fed. R. Crim. P.2

       McCode filed a pre-trial motion requesting that Count Six be severed from the

remaining counts for purposes of trial, pursuant to Rule 14(a), Fed. R. Crim. P., arguing

specifically that prejudice would result from a joint trial of the charged offenses.3

Following argument, the District Court denied McCode’s motion to sever Count Six from

the remaining counts of the superseding indictment, but nonetheless agreed to bifurcate

the trial with respect to Counts Five and Six, indicating that the issue of McCode’s prior



       2
           Rule 8(a) provides that

                [t]he indictment or information may charge a defendant in
                separate counts with 2 or more offenses if the offenses
                charged...are of the same or similar character, or are based on
                the same act or transaction, or are connected with or
                constitute parts of a common scheme or plan.

Rule 8(a), Fed. R. Crim. P. (emphasis added).
       3
           Rule 14(a) provides as follows:

                If the joinder of offenses or defendants in an indictment, an
                information, or a consolidation for trial appears to prejudice a
                defendant or the government, the court may order separate
                trials of counts, sever the defendants’ trials, or provide any
                other relief that justice requires.

Rule 14(a), Fed. R. Crim. P.

                                               4
felony convictions would be excluded from the first phase of the trial on Counts One,

Two and Three.

       The jury trial commenced on June 25, 2007. Following presentation of the

government’s case in chief as to Counts One, Two and Three, McCode chose to testify in

his own defense, thereby disclosing his prior convictions to the jury and essentially

rendering moot the District Court’s decision to bifurcate the trial with respect to Counts

Five and Six. Indeed, McCode admitted in the course of direct examination that he was

previously convicted in 1996 of “a few” armed robberies for which he received sentences

of between eight and 20 years imprisonment. Significantly, McCode also admitted to

possessing the two firearms seized from his residence on October 5, 2006, testifying

specifically that he possessed these firearms for purposes of self-defense despite knowing

that he was precluded from doing so under the terms of his parole.

       On June 28, 2007, following a four-day trial, McCode was convicted by the jury

on Counts One, Two and Three of the superseding indictment. Immediately following the

verdict, McCode pled guilty to Count Six, and the second stage of the trial then proceeded

before the same jury as to Count Five.4 Following the presentation of additional evidence


       4
         In his brief, McCode appears to suggest error in the jury verdict slip, stating that
“[t]he verdict slip for the second stage of trial asked the jury to make a factual finding of
[McCode’s] guilt for Count Five only...[and that] [t]he jury never made a factual
determination on Count Six.” Appellant’s Br. 6. While inclusion of the entire trial
transcript would certainly have assisted us in resolving this argument, it is sufficient to
note that the district court docket entries, as well as the Judgment and Commitment
Order, accurately reflect that McCode pled guilty to Count Six following the jury’s
verdict on Counts One, Two and Three.

                                              5
— consisting solely of the parties’ stipulation that McCode had previously been convicted

of a felony — the jury convicted McCode on Count Five, as well.

       In the course of the sentencing proceedings, the District Court determined that

McCode qualified as an armed career criminal under ACCA as a result of his four prior

felony convictions for armed robbery. Given this, and in accordance with the armed

career criminal provisions set forth in 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4,

McCode’s advisory guidelines range of imprisonment was calculated at 188 to 235

months, based on a total offense level of 33 and a criminal history category of IV. On

December 5, 2007, the District Court imposed concurrent sentences of 195 months on

each of Counts One, Two, Five and Six, with a consecutive sentence of 84 months on

Count Three, for a total custody sentence of 279 months. McCode thereafter filed a

timely appeal raising two discrete issues, each of which is addressed here.

                                            II.

       McCode’s first argument on appeal is that the enhanced sentences imposed on

Counts Five and Six pursuant to ACCA, 18 U.S.C. § 924(e), are in violation of the

principles set forth in Apprendi, 530 U.S. 466 and is progeny.

       ACCA imposes enhanced penalties for certain firearm offenses where, as here, the

defendant “has three previous convictions...for a violent felony or a serious drug offense,

or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). As

applied here, ACCA increased the maximum term of imprisonment applicable to Counts



                                             6
Five and Six of the superseding indictment from 10 years to life; it also imposed a

mandatory minimum term of 15 years as to each of Counts Five and Six. See 18 U.S.C.

§§ 924(a)(2), 924(e).

       In the course of the sentencing proceedings, the District Court applied the

enhanced penalties set forth in ACCA in fashioning McCode’s sentence as to Counts Five

and Six based on his finding — rather than the jury’s finding — that McCode had at least

three prior violent felony convictions. Yet, McCode contends on appeal that the question

whether he had three qualifying prior convictions warranting application of ACCA’s

enhanced penalties was required to have been submitted to the jury and found beyond a

reasonable doubt. We reject that challenge as being contrary to well-established Supreme

Court and circuit precedent.

       As an initial matter, McCode’s argument that the fact of a prior conviction must be

found by a jury beyond a reasonable doubt was expressly rejected by the Supreme Court

in Almendarez-Torres v. United States, 523 U.S. 224 (1998). There, the Supreme Court

held that the existence of a prior conviction, which conviction increases a defendant’s

statutory maximum sentence, may be determined by the district judge at sentencing and

need not be alleged in the indictment or established as an element of the offense beyond a

reasonable doubt. See id. at 244 (recognizing that “to hold that the Constitution requires

that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt

departure from a longstanding tradition of treating recidivism as ‘go[ing] to the



                                             7
punishment only’”) (quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)). And

significantly, the Supreme Court specifically exempted prior convictions from its holding

in Apprendi — the case on which McCode relies — stating that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490 (emphasis added). Indeed, we have repeatedly confirmed the

continuing authority of Almendarez-Torres long after Apprendi was decided. See, e.g.,

United States v. Vargas, 477 F.3d 94, 104-05 (3d Cir. 2007); United States v. Coleman,

451 F.3d 154, 159-60 (3d Cir. 2006); United States v. Ordaz, 398 F.3d 236, 240-41 (3d

Cir. 2005).

       Given this well established Supreme Court and circuit precedent, we find that the

District Court’s application of the enhanced ACCA penalties was proper and McCode’s

first argument on appeal must be rejected.

                                             III.

       McCode’s second argument on appeal is that the District Court abused its

discretion when it declined to sever Count Six from the remaining counts of the

superseding indictment for purposes of trial. In this regard, McCode essentially concedes

that the initial joinder of Count Six in the superseding indictment was proper under Rule

8(a), Fed. R. Crim. P., as the offense charged in Count Six involved “the same or similar

character” as the offense charged in Count Five; he merely contends that Count Six



                                              8
should have been severed from the remaining counts at trial in accordance with Rule

14(a), Fed. R. Crim. P., to avoid unwarranted prejudice. Specifically, McCode contends

that the introduction of evidence of additional firearms found in his residence in October

2006 that were not used in the course of the July 2006 robbery was highly prejudicial with

respect to the jury’s deliberation on the robbery-related counts, as it “created an

impression for the jury that [he] was ‘a bad person.’” Appellant’s Br. 16.

       The question whether to sever offenses or defendants charged in an indictment

pursuant to Rule 14, Fed. R. Crim. P. rests in the sound discretion of the district court.

See United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). We therefore review a

district court’s denial of a motion to sever for abuse of discretion. Id. Moreover, even if

an abuse of discretion is established, “reversal is not required absent ‘clear and substantial

prejudice’ resulting in a manifestly unfair trial.” United States v. Hart, 273 F.3d 363, 370

(3d Cir. 2001) (citation omitted).

       Here, McCode has failed to establish either an abuse of discretion or clear and

substantial prejudice resulting from the District Court’s failure to sever Count Six from

the remaining counts against him. This is particularly so given that the District Court

agreed to conduct the jury trial in two stages, thereby bifurcating the felon-in-possession

counts charged in Counts Five and Six from the robbery-related counts charged in Counts

One, Two and Three. Moreover, McCode opted to plead guilty to Count Six immediately

following the jury’s verdict on Counts One, Two and Three and thus, the jury was never



                                              9
presented with the specific allegations of that particular charge. Finally, given the fact

that Counts One, Two and Three involved both an armed robbery and use of a firearm in

connection with a violent felony, combined with McCode’s admission in the course of his

direct examination that he had several prior convictions for armed robbery, it cannot fairly

be argued that he suffered “clear and substantial prejudice” sufficient to result in a

“manifestly unfair trial” as a result of the introduction of evidence pertaining to two

additional firearms found in his residence on October 5, 2006 — firearms that he

willingly admitted to possessing in the course of his direct examination. Hart, 273 F.3d at

370. McCode’s second argument on appeal is therefore without merit.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                           10
