UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4497

RANDOLPH E. DAWSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-99-88)

Argued: April 4, 2000

Decided: May 19, 2000

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and Roger J. MINER, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant.
Andrew L. Snowdon, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Randolph Dawson appeals from a judgment of conviction entered
in the district court on one count of operating a motor vehicle after
having been declared an habitual offender in violation of 18 U.S.C.
§ 13, assimilating Va. Code § 46.2-357(B)(3). On the night of January
25, 1999, Dawson drove a vehicle onto the U.S. Marine Corps Base
in Quantico, Virginia and could not produce a driver's license when
asked to do so at the gate. He was arrested after the gatekeeper ran
a Virginia Criminal Information Network check that showed Daw-
son's license had been revoked and that he had two previous convic-
tions in Virginia for driving on a suspended license.

On May 5, 1999, a bench trial was held in the district court. The
evidence at trial showed that Dawson had been adjudicated an habit-
ual offender by order of the Circuit Court of Fairfax County, Virginia
dated May 21, 1992, and that his license to drive had been revoked
pursuant to § 46.2-355 of the Virginia Code. The revocation came
after several convictions for driving under the influence of alcohol,
the last one arising from a January 1992 incident that led to Dawson's
conviction for "Driving While Intoxicated, 3rd Offense within 5
years." The evidence also showed that since losing his license, Daw-
son had pled guilty on two occasions to driving on a suspended
license, once in the General District Court of Prince William County
on February 13, 1995 and again in the General District Court of Fair-
fax County on March 31, 1995. Based on these facts, the court found
Dawson guilty of one count of "Unlawful Operation of a Motor Vehi-
cle While a[n] Habitual Offender," in violation of 18 U.S.C. § 13,
assimilating Va. Code § 46.2-357(B)(3).

The district court continued the case for sentencing until July 2,
1999, pending completion of the presentencing investigation and
report. On that date, Dawson asserted that his conviction had been

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rendered a nullity by the July 1, 1999 legislative repeal of the adjudi-
cation provisions of the Virginia Habitual Offender Act, Va. Code
§§ 46.2-351 through 46.2-355. The government opposed the motion
to set aside the conviction on the ground that only the adjudication
provisions, but not the enforcement provision, of the habitual offender
statute had been done away with under the new law. The court found
that the legislature had made administrative and procedural changes
to the law governing serious traffic offenses, but that the "underlying
substantive offense" with which Dawson was charged "still [wa]s on
the books." The court therefore imposed a sentence of eighteen
months in prison, three years supervised release and a $100 special
assessment. This appeal followed.

We review questions of statutory construction de novo. See United
Mine Workers v. Martinka Coal Co., 202 F.3d 717, 720 (4th Cir.
2000). Dawson likens his case to that of the defendants in United
States v. Chambers, 291 U.S. 217 (1934). There, the indictments
under the National Prohibition Act were dismissed after passage of
the Twenty-First Amendment, on the basis of the rule that criminal
prosecutions must be halted when their underlying law has lost its
force. See id. at 222-23. We find that argument unpersuasive here. An
examination of Chapter 945 of the Virginia Acts of Assembly, 1999
-- entitled "An Act to amend and reenact [fourteen subsections] of
the Code of Virginia, to amend the Code of Virginia by adding a sec-
tion numbered 46.2-355.1, and to repeal §§ 46.2-351 through 46.2-
355 of the Code of Virginia, relating to habitual offenders; penalty"
(hereinafter, "the Act") -- shows that Chambers is inapposite. Even
though the Act puts an end to new convictions for the crime of being
an "habitual offender," the law evinces no intent to deprive the state
of its enforcement power to penalize those who had already been
adjudged habitual offenders prior to its enactment.

Section 46.2-357, the enforcement section of the old habitual
offender statute, is hardly changed, having acquired in its definitional
subsection only the following italicized text: "It shall be unlawful for
any person determined or adjudicated an habitual offender to drive
any motor vehicle . . . on the highways of the Commonwealth while
the revocation of the person's driving privilege remains in effect." Va.
Code § 46.2-357(A). This language shows that the legislature contem-
plated and provided for the continued regulation of individuals who

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had received habitual offender status before implementation of the
Act.

Perhaps most significant for purposes of this appeal is the fact that
the penalty provision for an adjudicated habitual offender's second
offense (driving on a suspended or revoked license, see Va. Code
§ 46.2-357(B)(2)) has not been altered in the least. It states that such
an offender shall be "guilty of a felony punishable by confinement in
a state correctional facility for not less than one year nor more than
five years." Va. Code § 46.2-357(B)(2)&(3). Dawson was sentenced
within those parameters; his presentencing report set the statutory
minimum and maximum sentences as one and five years respectively.

Based on the foregoing, we find that the Virginia General Assem-
bly evinced its intent to enact a new, stiffer law dealing with those
who commit serious traffic violations, and that it drafted the legisla-
tion in such a way as to provide saving provisions for the penalties
to be imposed on those it previously chose to designate habitual
offenders for having accumulated such violations. Because the legis-
lature continues to recognize a class of persons who have already
been designated habitual offenders, Dawson's contention that his con-
viction has been deprived of its "statutory underpinnings" is without
merit.

We likewise find Dawson's equal protection argument to be
unavailing. Dawson argues that the Act creates a class of habitual
offenders who are treated differently under the traffic laws than are
those who now commit the same types of infractions. While this is
undoubtedly correct, we find the Act's classification scheme to be
rationally related to a legislative goal. See FCC v. Beach Communica-
tions, Inc., 508 U.S. 307, 313-14 (1993) (stating that statutory classifi-
cations that neither affect members of a suspect class nor infringe
upon fundamental constitutional rights are subject to a rational basis
standard of review). There can be no doubt that retaining the classifi-
cation of habitual offender that existed prior to July 1, 1999 is ratio-
nally related to the Virginia General Assembly's goal of regulating
traffic safety. Furthermore, the legislature could hardly be expected
to reclassify past offenders under the new scheme, as ex post facto
problems would then arise.

AFFIRMED

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