                                 District of Columbia
                                  Court of Appeals

No. 15-CF-819
                                                                   FEB 16 2017
CHARLES BLAND,
                                        Appellant,

         v.                                                       CF2-8770-14


UNITED STATES,
                                        Appellee.


                 On Appeal from the Superior Court of the District of Columbia
                                      Criminal Division

         BEFORE: GLICKMAN and MCLEESE, Associate Judges; and STEADMAN, Senior
Judge.

                                      JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the Superior Court is
affirmed.

                                     For the Court:




Dated: February 16, 2017.

Opinion by Associate Judge Stephen H. Glickman.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CF-819

                          CHARLES BLAND, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF2-8770-14)

                       (Hon. Juliet McKenna, Trial Judge)

(Submitted November 18, 2016                         Decided December 5, 2016*)

      Marc L. Resnick was on the brief, for appellant.

       Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Sara
Vanore, and Danielle M. Kudla, Assistant United States Attorneys, were on the
brief for appellee.

      Before GLICKMAN and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.



      *
           The decision in this case originally was issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of appellee’s motion to publish. Footnote 8 has been revised to note the
court’s denial of appellant’s post-decision motion for leave to file a supplemental
brief raising a new claim.
                                          2



      GLICKMAN, Associate Judge: Charles Bland appeals the enhancement of his

sentence for unlawful possession of a firearm (UPF) under a statutory provision

requiring a mandatory minimum prison term of three years instead of one year if

the offender has a prior conviction for a “crime of violence other than

conspiracy.”1 Bland argues that his constitutional rights under the Fifth and Sixth

Amendments were violated because the finding that he had qualifying prior

convictions for armed robbery and assault with a dangerous weapon (ADW) was

made by the trial judge rather than by the jury that found him guilty of UPF. Bland

further argues that the government failed to present sufficient evidence to support

this predicate finding. For the following reasons, we reject these contentions and

affirm the judgment of the Superior Court.



      First, as the government argues and appellant does not dispute, he waived

his constitutional claim at trial in order to keep the jury from learning the nature of

his prior convictions to his potential prejudice. To that end, he entered into a

stipulation informing the jury only that he had a previous conviction for which the

penalty was greater than one year. Through counsel, he expressly agreed that (1)

      1
       See D.C. Code § 22-4503 (a)(1), (b)(1) (2012 Repl. & 2016 Cum. Supp.).
Mr. Bland also was convicted of possession of an unregistered firearm and
unlawful possession of ammunition, see D.C. Code §§ 7-2502.01 (a) and 7-
2506.01 (3) (2012 Repl.), but he raises no issue with respect to those convictions.
                                         3

whether his previous convictions were for a crime of violence was “not something

that the jury has to know about”; and (2) he would “not . . . take the position . . .

because the jury made no finding that the prior conviction was a crime of violence,

that the Government is in any way precluded from” seeking a sentencing

enhancement based on that fact. Appellant cannot take a contrary position in this

court.2



      Second, even if we were to disregard his waiver, appellant cannot prevail on

his constitutional claim. His premise, that the jury had to find his prior conviction

for a violent crime in order for his sentence to be enhanced on that basis, is

erroneous. “The Supreme Court established in Apprendi that the fact of a prior

conviction does not have to be submitted to the jury’s consideration before the

judge may enhance the sentence.”3 Moreover, under the UPF statute, whether a




      2
        See Preacher v. United States, 934 A.2d 363, 368 (D.C. 2007) (“Generally,
the invited error doctrine precludes a party from asserting as error on appeal a
course that he or she has induced the trial court to take.”); Brown v. United States,
627 A.2d 499, 508 (D.C. 1993) (“We have repeatedly held that a defendant may
not take one position at trial and a contradictory position on appeal.”).
      3
        Eady v. United States, 44 A.3d 257, 261 (D.C. 2012); see Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (“Other 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.”);
see also Alleyne v. United States, 133 S. Ct. 2151, 2160 & n.1 (2013) (holding that
“the principle applied in Apprendi applies with equal force to facts increasing the
                                                                      (continued…)
                                         4

prior conviction was for a “crime of violence other than conspiracy” for

enhancement purposes is a legal, not factual, question.4 Thus, the Constitution

permitted the trial judge to determine whether appellant had such a prior

conviction, just as it permitted the judge in Almendarez-Torres v. United States

(the case in which the Supreme Court recognized the exception for prior

convictions) to determine whether a prior conviction was for an “aggravated

felony.”5



      Third, we are satisfied the judge had sufficient grounds for finding that

appellant was previously convicted of crimes of violence.        It is true that the

government did not provide the court with a certified copy of the judgment of

(continued…)
mandatory minimum,” subject to the same “exception . . . for the fact of a prior
conviction”).
      4
           See D.C. Code § 22-4503 (d)(1) (providing, in pertinent part, that “‘Crime
of violence’ shall have the same meaning as provided in [D.C. Code] § 23-1331 (4)
. . . .”); see, e.g., Towles v. United States, 115 A.3d 1222, 1232-34 (D.C. 2015)
(determining as a matter of law that a prior conviction for involuntary
manslaughter supports the sentencing enhancement in § 22-4503 (b)(1) because it
is a “crime of violence” within the meaning of § 23-1331 (4)).
      5
        523 U.S. 224, 235 (1998). Appellant argues that later decisions of the
Court have raised doubts about the continuing viability of Almendarez-Torres to
the point that it should no longer be considered good law. This court is not in a
position to reach such a conclusion. See, e.g., Agostini v. Felton, 521 U.S. 203,
237 (1997) (rejecting proposition “that other courts should ever conclude that [the
Supreme Court’s] more recent cases have, by implication, overruled an earlier
precedent”).
                                         5

conviction or equivalent documentation. However, before trial, pursuant to D.C.

Code § 23-111 (a)(1) (2012 Repl.), the government filed with the court and served

on appellant’s counsel in open court an information stating that appellant would be

subject to the enhanced penalties for UPF based on his convictions for armed

robbery and assault with a dangerous weapon in Superior Court case number 77-

FEL-6483. In addition, the government filed with the court a copy of its letter

furnishing appellant with a certified copy of the judgment of conviction in that

case. Armed robbery and ADW are both crimes of violence.6 Thereafter, when

appellant was preparing to stipulate that he had a prior felony conviction, the

prosecutor informed the judge that “the defense does not dispute that it was a

robbery conviction.”      Appellant did not contest that representation.     When

appellant appeared for sentencing, his counsel affirmatively acknowledged that the

presentence report was “substantially accurate” and did not demur when the judge

then stated that the report writer concluded that appellant had “a prior conviction

for a crime of violence.”7 Further, appellant implicitly confirmed that his prior

convictions were for substantive crimes of violence when he argued in the trial


      6
          See D.C. Code § 23-1331 (4) (2012 Repl.).
      7
       That the statements were not made by appellant personally does not mean
they cannot be treated as his admissions. “A party may make an admission by
adopting or acquiescing in the statement of another.” Tann v. United States, 127
A.3d 400, 466 (D.C. 2015).
                                         6

court that they could not be found to qualify for purposes of the sentencing

enhancement only because they might have been based on a theory of conspiracy

liability (a separate argument we shall discuss below). In all the discussions with

the judge regarding his stipulation to a prior felony and, at sentencing, over the

Apprendi issue, appellant never denied that he had been convicted of, specifically,

armed robbery and ADW. Nor has appellant denied it on appeal. There really

appears to be absolutely no genuine dispute about it, and that is what we perceive

the trial judge was given to understand.        Considering the totality of these

circumstances, we are satisfied that the judge had enough before her to find that

appellant’s prior convictions were for armed robbery and ADW.8


      8
          The judge neglected to address appellant in accordance with the
requirements of D.C. Code § 23-111 (b) to ask him whether he affirmed or denied
the convictions and advise him that any challenge to those convictions not made
before the imposition of sentence could not be raised to attack the sentence. See,
e.g., Brocksmith v. United States, 99 A.3d 690, 702-03 (D.C. 2014); Sanders v.
United States, 809 A.2d 584, 600-602 (D.C. 2002); Smith v. United States, 356
A.2d 650, 652 (D.C. 1976). Our unpublished Memorandum Opinion and
Judgment in this case noted that appellant did not identify this omission as a
ground for relief. After the issuance of that opinion, appellant moved for leave to
file a supplemental brief presenting a claim that the trial judge’s failure to comply
with D.C. Code § 23-111 (b) was plain error. We denied that motion because even
if its untimeliness were to be excused, appellant could not satisfy the stringent
requirements of plain error review. As our Order denying leave to file explained,

             [Appellant] makes no claim that he has any basis on
             which to dispute or challenge his prior convictions for
             crimes of violence. We therefore conclude that the trial
             court’s “error was essentially harmless because appellant
             has not attempted to show any harm, nor do we
                                                                     (continued…)
                                         7

      Finally, we reject appellant’s argument that his enhanced sentence was

improper because the record does not rule out the possibility that he was convicted

of armed robbery and ADW on a conspiracy theory of liability. The enhancement

provision of the UPF statute applies whenever a defendant has “a prior conviction

for a crime of violence other than conspiracy” regardless of the particular theory of

liability on which the conviction was based.9



      The judgment of the Superior Court is hereby affirmed.



                                                    So ordered.




(continued…)
           independently glean from the record any injury, caused
           by the trial court’s omission. In such an instance, we will
           not waste scarce judicial resources and remand this case
           for resentencing.” Brocksmith v. United States, 99 A.3d
           690, 703 (D.C. 2014) (internal quotation marks omitted).
      9
         D.C. Code § 22-4503 (b)(1). In excepting conspiracy convictions from the
class of violent crime convictions triggering a sentence enhancement, subsection
(b)(1) reflects the fact that D.C. Code § 23-1331 (4) lists conspiracy to commit one
of the enumerated (substantive) crimes of violence as being another such crime.
