TABLE OF CONTENTS





TABLE OF AUTHORITIES iii



JURISDICTION 1



ISSUES PRESENTED FOR REVIEW 1



STATUTES AND RULES 2



STATEMENT OF THE CASE 2



A. Nature of the Case, Course of Proceedings,

and Disposition in the Court Below 2



B. Statement of Facts 3



1. The Suppression Hearing 3



2. The Guilty Plea 10



3. The Sentencing 11



SUMMARY OF ARGUMENT 14



ARGUMENT 16



I. THE POLICE LACKED REASONABLE ARTICULABLE SUSPICION

TO BELIEVE THE CAR MR. xxxxx WAS DRIVING WAS STOLEN 16



A. Standard of Review 16



B. A Broken Vent Window Does Not Create Reasonable

Suspicion That A Car Is Stolen Where The Window

Has Been Temporarily Repaired. 17



II. MR. xxxxx DOES NOT QUALIFY AS AN ARMED CAREER

CRIMINAL UNDER 18 U.S.C. 924(e) 22



A. Standard of Review 22



B. Public Records Show That Mr. xxxxx Does Not Have

Even One, Let Alone Three, Previous Convictions

For a "Violent Felony" or "Serious Drug Offense" 23



1. The D.C. Code Attempted Robbery Convictions 24



2. The D.C. Code Drug Convictions 29





III. THE SENTENCING COURT PLAINLY ERRED IN SENTENCING

MR. xxxxx TO A MANDATORY MINIMUM TERM OF FIVE

YEARS OF SUPERVISED RELEASE 32



A. Standard of Review 32



B. The Offense to Which Mr. xxxxx Pleaded

Guilty Carries No Mandatory Minimum Supervised

Release Period 32



IV. MR. xxxxx'S COUNSEL WAS INEFFECTIVE IN FAILING TO

MAKE ANY CHALLENGE TO THE 15-YEAR ACCA ENHANCEMENT

AND THE 5-YEAR SUPERVISED RELEASE PERIOD 34



A. Standard of Review 34



B. Mr. xxxxx Was Prejudiced By His Lawyer's

Failure to Object to the PSR's Obviously

Questionable Sentencing Recommendations 34



CONCLUSION 36



CERTIFICATE OF LENGTH 37



CERTIFICATE OF SERVICE 37





TABLE OF AUTHORITIES



CASES





Colonial Penn Insurance Co. v. Coil,

887 F.2d 1236 (4th Cir. 1989) 27



Commonwealth v. Epps,

608 A.2d 1095 (Pa. Super. Ct. 1992) 21



*Commonwealth v. Kimball,

641 N.E.2d 1066 (Mass. App. Ct. 1994) 20, 22



Hawkins v. States,

436 A.2d 900 (Md. 1981) 31



In re C.A.P.,

633 A.2d 787 (D.C. App. 1993) 21, 22



*xxxxx v. State,

660 So.2d 312 (Fla. Dist. Ct. App. 1995) 20



Johnson v. State,

862 S.W.2d 290 (Ark. Ct. App. 1993) 21



Logan v. Commonwealth,

452 S.E.2d 364 (Va. Ct. App. 1994) 21



Ornelas v. United States,

116 S. Ct. 1657 (1996) 17



People v. Brown,

627 N.E.2d 340 (Ill. App. Ct. 1993) 21



*People v. Elam,

179 A.D.2d 229, 584 N.Y.S.2d 780

(N.Y. App. Div. 1992) 19, 22



People v. Griffith,

19 Cal.App.3d 948, 97 Cal. Rptr. 367

(Cal. Ct. App. 1971) 20



Reagan v. State,

244 A.2d 623 (Md. Ct. Spec. App. 1969) 31



*Reiner v. Washington Plate Glass Co.,

711 F.2d 414 (D.C. Cir. 1983) 27



State v. Butler,

650 A.2d 397 (N.J. Super. Ct. App. Div. 1994) 20



State v. Serrano,

544 P.2d 101 (Wash. Ct. App. 1975) 21



Strickland v. Washington,

466 U.S. 668 (1984) 34



Taylor v. State,

639 N.E.2d 1052 (Ind. Ct. App. 1994) 20



*Taylor v. United States,

495 U.S. 575 (1990) 24-25, 28, 31, 35



Terry v. Ohio,

392 U.S. 1 (1968) 17



United States v. Catlett,

97 F.3d 565 (D.C. Cir. 1996) 34, 36



United States v. Custis,

988 F.2d 1355 (4th Cir. 1993),

aff'd on other grounds, 511 U.S. 485 (1994) 31



United States v. Edelin,

996 F.2d 1238 (D.C. Cir. 1993) 33



United States v. Fennell,

53 F.3d 1296 (D.C. Cir. 1995) 35-36



United States v. Martinez,

954 F.2d 1050 (5th Cir. 1992) 31



*United States v. Mathis,

963 F.2d 399 (D.C. Cir. 1992) 15, 22, 25-29, 31, 35



*United States v. Saro,

24 F.3d 283 (D.C. Cir. 1994) 22-23



United States v. Stahl,

958 F.2d 980 (10th Cir. 1992) 29



Veg-Mix, Inc. v. Dept. of Agriculture,

832 F.2d 601 (D.C. Cir. 1987) 27





STATUTES AND RULES



18 U.S.C. 922(g) 2, 3, 33, 35



18 U.S.C. 924(a) 32



18 U.S.C. 924(e) passim



18 U.S.C. 3559 32



18 U.S.C. 3583 32



Fed. R. Evid. 201 27



U.S.S.G. 2K2.1 11



U.S.S.G. 4B1.4 11



U.S.S.G. 5D1.1 32, 33



U.S.S.G. 5D1.2 32, 33, 35



22 D.C. Code 2901 25, 26, 28



22 D.C. Code 3201 12



33 D.C. Code 522 30



33 D.C. Code 541 30



18 D.C.M.R. 2201 7



18 D.C.M.R. 2204 7

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________



No. 96-3074

_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



WENDELL T. xxxxx, Defendant-Appellant.



_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



____________________________________________





BRIEF FOR APPELLANT



____________________________________________



JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court (entered June 21, 1996) having been filed on June 7, 1996, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court erred in upholding the Terry stop of Mr. xxxxx on suspicion of driving a stolen vehicle when the only factor the officers relied on was the car's broken rear vent window and the court did not disbelieve Mr. xxxxx's testimony that that window had been temporarily repaired by affixing tape around the edges.

II. Whether Mr. xxxxx's mandatory minimum 15-year sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e), must be vacated where public records show conclusively that he does not have three previous convictions for a "violent felony" or "serious drug offense."

III. Whether the district court committed plain error in sentencing Mr. xxxxx to a mandatory minimum supervised release term of five years where there is no such statutory provision and the guidelines called for a supervised release term of between three and five years.

IV. Whether trial counsel was ineffective in failing to object to the use of Mr. xxxxx's prior convictions as enhancing ACCA predicates and in failing to object to the imposition of a mandatory five-year supervised release period.

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and

Disposition in the Court Below



On September 21, 1995, a federal grand jury returned a seven-count indictment against Mr. Wendell xxxxx and his co-defendant, Mr. Anthony Douglas. Mr. xxxxx was charged with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1) (Count Three), unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. 922(g)(1) (Count Four), and carrying a pistol without a license in violation of 22 D.C. Code 3204(a) (Count Six). App. 10-12. (1)

On January 11, 1996, Mr. xxxxx moved to suppress the gun at issue in the case on the ground that it had been the fruit of an unconstitutional seizure of his automobile in violation of the Fourth Amendment (App. 13-19). On January 25, 1996, the Honorable Thomas F. Hogan held a suppression hearing and denied the motion. On February 25, 1996, Mr. xxxxx entered a conditional plea of guilty to Count Three of the indictment, unlawful possession of a firearm by a convicted felon under 922(g), explicitly preserving the right to appeal the denial of his suppression motion. (Plea Tr. 4, 9, 20). On May 30, 1996, the court found Mr. xxxxx subject to the enhanced penalties provided in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e), and sentenced him to the ACCA mandatory minimum of 15 years in prison. The court also sentenced him to five years of supervised release and a $50 special assessment. (App. 38-41). Mr. xxxxx filed a timely notice of appeal (App. 42).

B. Statement of Facts

1. The Suppression Hearing

Sergeant Peter Newsham testified that he was on patrol with Sergeant Christopher Cummings in a marked cruiser on August 1, 1995, at approximately 8:20 p.m., when he noticed that the car Mr. xxxxx was driving, a late 80's Buick sedan, had a broken right rear vent window. (Supp. Tr. 9-12, 21). (2) According to Newsham, the window appeared to have been recently broken because it was uncovered and there was still glass left around the edges. (Supp. Tr. 10). Newsham explained that he deals with stolen vehicles on a daily basis, had been trained by veteran officers on how to recognize stolen vehicles, and that he suspected Mr. xxxxx's car was stolen because car thieves commonly gain access by breaking a car's vent window. (Supp. Tr. 8-9, 11).

The officers decided to stop the car to investigate whether it was stolen. (Supp. Tr. 12-14). As the car pulled over, the passenger appeared to reach down and put something under the seat. (Supp. Tr. 13-14). Newsham testified that Cummings, who was driving the police cruiser, stayed in the driver's seat, while Newsham approached the vehicle and asked Mr. xxxxx for his driver's license, which he produced. (Supp. Tr. 15, 30-31). (3) According to Newsham, he first checked the occupants' hands, which were visible, then checked the steering column, which was not broken, then noticed a bottle that he thought looked like a beer bottle (but turned out not to be) sitting between the occupants, and then asked Mr. xxxxx to exit the car. (Supp. Tr. 14-15, 34-35). Newsham claimed that as Mr. xxxxx stepped out, he turned his back to Newsham and appeared to reach into his waistband. (Supp. Tr. 16). Newsham heard a hard sound of something dropping into the car and saw a handgun resting between the sill of the door and the driver's seat. (Supp. Tr. 16-17, 22-23). Newsham then turned Mr. xxxxx over to Officer Cummings, who by now was standing at the rear of Mr. xxxxx's car, and whispered to Cummings that there was a weapon in the car. (Supp. Tr. 16-17). Newsham then returned to the driver's side and retrieved the handgun. (Supp. Tr. 17). (4) After assisting Cummings in handcuffing Mr. xxxxx, Newsham asked the passenger to step from the car. Newsham then searched the car and found another weapon under the passenger seat. (Supp. Tr. 19). According to Newsham, the block in which they stopped Mr. xxxxx, the 800 block of Chesapeake Street, S.E., is in a high crime area. (Supp. Tr. 10).

Mr. xxxxx testified that on August 1, 1995, he was living with his sister in Suitland, Maryland, and, with her permission, was driving her blue 1986 Buick Century. (Supp. Tr. 55-56). (5) Mr. xxxxx testified that the car's right vent window had been completely broken out three weeks earlier, but that his sister had not replaced the glass immediately because of the expense of replacement:

[W]e cleaned all the excess glass out, because we were going to try to get a replacement from the junkyard. We couldn't find one. They told us we had to go to the dealer. So we put the gray duct tape over it, and the gray duct tape on the back side of it was coming loose a little, but you could still see all the way around it with the adhesive, because it had been on for . . . going on a month.

(Supp. Tr. 56-57).

Mr. xxxxx explained that shortly before the stop, he made a U-turn on Atlantic Street (6) and noticed the police car behind him. The cruiser followed him as he turned right on Barnaby and then left on Chesapeake, where the police car signalled him to pull over, which he did. (Supp. Tr. 58-62). Newsham approached the driver's side at the same time Cummings approached the passenger side. (Supp. Tr. 63-64). Mr. xxxxx gave Newsham his license and the registration and Newsham slipped them into his shirt pocket. (Supp. Tr. 65). When Newsham stated that the car was being stopped on suspicion that it was stolen and ordered Mr. xxxxx out of the car, the passenger began to object that the officers should look at the license and registration and Cummings drew his weapon. (Supp. Tr. 65-66). xxxxx got out of the car and was searched by Newsham. (Supp. Tr. 66). Newsham then searched the driver's side of the car, first finding a several-day-old empty O'Doul's nonalcoholic beer bottle under the driver's seat, and then finding the handgun Mr. xxxxx had placed under the driver's seat earlier in the day. (Supp. Tr. 58, 67-70). Mr. xxxxx pointed out that, knowing he had prior felony convictions, and knowing the police were right behind him for three blocks before they pulled him over, he would never have kept a gun on his person until a police officer actually approached him as Newsham claimed. (Supp. Tr. 86).

After both sides rested, Judge Hogan determined that he was unable to resolve the conflicts in the testimony without hearing from the other officer. The government then, at the court's request, produced Officer Cummings, the driver of the cruiser, who confirmed that Mr. xxxxx had not committed any traffic violations prior to the stop. (Supp. Tr. 94). (7) He did not see the broken window when Mr. xxxxx initially turned and pulled in front of the cruiser, but did see it as Mr. xxxxx turned right from Atlantic to Barnaby. (Supp. Tr. 92, 93). According to Cummings there was nothing covering the window and there were "still glass fragments and particles within the frame of the vent." (Supp. Tr. 92-93). See also Supp. Tr. 99 (hole was surrounded by "jagged glass"). Cummings testified that he attempted to run a stolen car check on the tag before the stop but was unable to get through on the radio. (Supp. Tr. 93). With respect to the circumstances of the stop itself, to the extent he had been in a position to observe, Cummings's testimony was generally consistent with that of Newsham, except that he testified that Newsham reached "between the front seat and the dashboard," as opposed to between the seat and the door, to retrieve the gun. (Supp. Tr. 97). Cummings was impeached with his testimony to the grand jury that Newsham had recovered the gun from under the driver's seat. (Supp. Tr. 103-04).

The court denied the motion to suppress, noting that "there's a fairly close issue in some areas." (Supp. Tr. 119). With respect to the stop itself, the court did not resolve the factual dispute as to whether there had been duct tape or jagged glass around the window frame, apparently concluding that the broken window provided reasonable suspicion to stop the car even if it had been partially repaired with tape:

Here the facts obviously indicate where there is uncontested testimony from all sides at least the vent window on the right-hand side, the passenger's side of the '86 Buick was broken. The defendant testified there was some tape over parts of it that had partially come off, but he had cleaned out the broken glass.

Both officers testified, Officer Cummings just recently, testified that there was no tape, but that you could still see the broken glass, it looked like a rather recent break, which gave rise to their concerns based upon their experience that this was a stolen vehicle.

There are a substantial number of cases in state courts cited by the government to conclude that a broken rear vent window together with the officer's experience in other arrests is sufficient proof to support a reasonable suspicion that in the officer's mind the car was stolen. Here we have a high crime area in the evening hours to go with those other factors, and we have over 160 arrests or participation in arrests and recovery of stolen vehicles by these officers in their experience, and Officer Newsham almost on a daily basis is recovering stolen automobiles in that neighborhood.



In re CAP, . . . 633 A.2d 787, a District of Columbia Court of Appeals case, . . . indicates that such a broken vent window may provide a reasonable and articulable suspicion.



. . .



So there's no dispute, I think, according to the testimony of all the -- the officers and of Mr. xxxxx there was a broken vent window, that the officers could have seen it from the U-turn and from the right turn, and that Officer Newsham, when he went up to speak to Mr. xxxxx, told him he was talking to him because he was concerned this was a stolen car because of the vent window. Mr. xxxxx also indicated that. So that it seems to me there is a legitimate basis for a Terry stop of the automobile.

(Supp. Tr. 120-21). Stating that "I'll get to the credibility findings in a minute," (Supp. Tr. 122), the court then analyzed the officer's actions after the initial stop, resolving only those factual disputes that were necessary to its ruling, and ultimately deciding to credit Officer Newsham's claim that the defendant dropped the gun in plain view on the door sill over Mr. xxxxx's testimony that Newsham found the gun during a search under the seat. (Supp. Tr. 126).

2. The Guilty Plea

On February 21, 1996, Mr. xxxxx signed a letter confirming his plea agreement with the United States. (App. 33-37). That letter stated in part:

Your client understands that pursuant to Title 18, United States Code, Section 924(a)(2)[,] [the 922(g) charge to which he is agreeing to plead guilty] carries a period of incarceration of not more than ten (10) years or a fine of not more than $250,000, or both. Please note, however, since Mr. xxxxx has three prior felony convictions, he is subject to the penalties provided in Title 18, United States Code, Section 924(e)(1) which provides a mandatory period of incarceration of not less than fifteen (15) years and a fine of not more than $25,000.

App. 33 (emphasis added).

At the plea hearing, Mr. xxxxx again confirmed his understanding that he was subject to ACCA's 15-year mandatory minimum because he had "three prior felony convictions." See Plea Tr. 3 (court explaining that "because [Mr. xxxxx] has three prior felony convictions, he's subject to additional penalties which provides a mandatory period of incarceration up to a minimum of 15 years, and that that is his minimum sentence that can be imposed in this case") (emphasis added); Plea Tr. 12 (court reading from 924(e)(1): "924(e)(1), it just reads in the case -- if this applies to Mr. xxxxx -- of three previous convictions, shall be fined not more than $25,000 and imprisoned for not less than 15 years, notwithstanding any other provision of law") (emphasis added); Plea Tr. 12 (THE COURT: "Do you understand that in this matter, that . . . because of your three prior felonies, that you would have an exposure then, sir, to 15 years imprisonment? THE DEFENDANT: "Yes, sir.") (emphasis added); Plea Tr. 16 (THE COURT: "Now do you understand . . . that under this charge, because of your prior convictions, three prior felony convictions, you're subject to the mandatory period of incarceration of not less than 15 years and a fine of not more than $25,000?" THE DEFENDANT: "Yes, Your Honor.") (emphasis added); Plea Tr. 19 (court summarizing written plea agreement's discussion of enhanced exposure "because of your three prior felony convictions") (emphasis added).

3. The Sentencing

The presentence report calculated Mr. xxxxx's base offense level as 24 on the understanding that he had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." PSR 12 (citing U.S.S.G. 2K2.1(a)(2)). Under the ACCA enhancement of U.S.S.G. 4B1.4, however, the offense level was enhanced to 33. PSR 18. Giving Mr. xxxxx two points for acceptance of responsibility (PSR 19), the PSR concluded that his guideline range was 188-235 months (corresponding to an offense level of 31 and a criminal history category of VI) (PSR 56). While concluding that Mr. xxxxx was subject to a mandatory minimum term of imprisonment of 15 years under 924(e) (PSR 55), the PSR gave no indication of which three prior convictions were being counted as qualifying felonies under that statute, except to note as footnotes to both of Mr. xxxxx's D.C. Superior Court attempted robbery convictions that "[p]ursuant to 22 D.C.C. 3201, this offense is a crime of violence." PSR 23 n.2 & 26 n.3. (8)

At the sentencing hearing, defense counsel began by expressing regret that the sentencing provisions did not "leave us very much to talk about." (S. Tr. 2). The court agreed, noting that "unfortunately, for Mr. xxxxx . . . [t]he plea that he has taken leaves him exposed to a mandatory minimum sentence under the statute and the guidelines." (S. Tr. 2). The court did, however, decide sua sponte to give Mr. xxxxx three points for acceptance of responsibility, rather than the two points recommended in the PSR, thereby lowering the guideline range to 168-210 months and permitting a sentence to the mandatory minimum of 180 months. (S. Tr. 3-4, 9). Agreeing with defense counsel that there was no reason to exceed the statutory minimum, the court stated:

Well, it is unfortunate Mr. xxxxx had this situation because of his prior background with these multiple convictions, but it appears to me that they stem from a narcotic addiction situation here. . . . That his family tried to work with him, his mother has been supportive, and it hasn't worked out for him, unfortunately, in that he had these multiple convictions, including these prior felony convictions. And the law is set now where, if you are charged with another felony after three prior felonies, you are facing mandatory time.

And really the offenses all appear to me to be related to attempting to get money for drugs as opposed to someone who robs banks for a living, et cetera. It seems a somewhat different situation, (9) but under the law now, the only alternative I have, I believe, under the statute that he has pled to is to have the mandatory minimum assessed against him.

(S. Tr. 4-5). Defense counsel responded, "I don't see it any other way either, Your Honor." (S. Tr. 5). The court noted again in addressing Mr. xxxxx that "I am bound by your plea, where you pled to a penalty of not less than 15 years." (S. Tr. 7). The court imposed sentence as follows:

There has been no challenge to the presentence report or the determination of the criminal history or the prior crimes of violence under the D.C. Code that you have been convicted of, and that places you in this category. In any event, the plea is to a minimum of 15 years, so I am going to do as follows.

I am going to, in spite of the fact that I think you have had a very supportive family, and that unfortunately your addiction overcame all their support and love, I think you have tried recently to do better. It is a shame that you failed, but under the law and your plea, I am going to sentence you as follows: The sentencing format, as a result of the plea in this case, pursuant to the plea agreement that was entered into in February of this year, and because you have three prior felony convictions you are subject to penalties entitled 18 U.S. Code Section 924(e)(1).



S. Tr. 9-10 (emphasis added). The court then imposed sentence of 180 months in prison (S. Tr. 10).

The only indication anywhere in the record as to which three convictions the court was relying upon as qualifying predicate felonies is its reference to Mr. xxxxx's convictions "under the D.C. Code." (S. Tr. 9). Since the two D.C. Code shoplifting convictions were obviously misdemeanors, the court was presumably referencing the two D.C. Code attempted robberies and the D.C. Code drug convictions incurred under a felony case number.

The court also adopted the PSR's conclusion that the guidelines provided for "a term of supervised release of at least 5 years" (PSR 59) and sentenced Mr. xxxxx to that term. See App. 41 (Judgment's "Statement of Reasons" indicating that court "adopts the factual findings and guideline application in the presentence report except . . .: gave 3 points for acceptance of responsibility . . ." and showing "Supervised Release Range" as simply "5 years," with spaces for guideline range crossed out).

SUMMARY OF ARGUMENT

The district court erred as a matter of law in concluding that the police had reasonable suspicion that Mr. xxxxx's car was stolen. The court did not resolve the factual dispute as to whether the window frame was filled with jagged glass, as the police testified, or whether it had been secured with duct tape, as Mr. xxxxx testified. Instead, the court merely noted the undisputed testimony that "there was a broken vent window" and appeared to assume that, regardless of any temporary repairs, that circumstance provided reasonable suspicion that Mr. xxxxx had stolen the car. That conclusion is simply not reasonable because it is lawful car occupants like Mr. xxxxx, not car thieves, who drive with taped vent windows. The police in this case repeatedly emphasized their claim that the glass shards indicated that the breakage was recent and appellant is aware of no case in which a court has held that a broken window that has been subject to makeshift repair provided reasonable suspicion that the car was stolen. This Court should therefore remand for resolution of the factual dispute as to the window's state of repair.

With respect to sentencing, the district court plainly erred in sentencing Mr. xxxxx as an armed career criminal under 18 U.S.C. 924(e). None of the D.C. Code convictions relied upon by the district court qualify as ACCA predicates. Under this Court's decision in United States v. Mathis, 963 F.2d 399 (D.C. Cir. 1992), Mr. xxxxx's two D.C. Code attempted robbery convictions do not qualify as ACCA "violent felon[ies]" because the District of Columbia robbery statute permits conviction where there is only a de minimis use of physical force, such as by "sudden or stealthy seizure or snatching." Even assuming this Court were to consider the contents of the charging documents under which Mr. xxxxx entered his guilty pleas, these convictions would not qualify as ACCA "violent felonies" because, in both cases, he was indicted for robbery "by means of sudden and stealthy seizure and snatching."

It is likewise obvious that the two D.C. Code drug offenses do not qualify as ACCA predicates. The phencyclidine conviction was for mere possession and both the phencyclidine and the marijuana convictions were only misdemeanors, thus taking them outside the definition of a "serious drug offense" under ACCA.

Even aside from the improper ACCA enhancement, the district court plainly erred in adopting the PSR's conclusion that Mr. xxxxx was subject to a statutory minimum supervised release term of at least five years. Appellant is aware of no such statutory provision and the PSR cites none. Even assuming the PSR is correct in classifying Mr. xxxxx's offense as a Class A felony, he should have been eligible for a guidelines supervised release term of as little as three years.

Finally, even if the sentencing errors in this case were not so obvious as to qualify as "plain error," they were sufficiently questionable that counsel's failure to raise any objection to them deprived Mr. xxxxx of the effective assistance of counsel. This Court can find ineffective assistance on this record because counsel's failure to object to these serious sentencing errors could not possibly have been the result of any reasoned tactical choice.

ARGUMENT

I. THE POLICE LACKED REASONABLE ARTICULABLE SUSPICION TO BELIEVE THE CAR MR. xxxxx WAS DRIVING WAS STOLEN.

A. Standard of Review

The Supreme Court has recently confirmed that the ultimate Fourth Amendment question of reasonable suspicion to make a Terry stop should be reviewed de novo. Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996). The principle components of this inquiry are (1) a determination of the historical facts leading up to the stop, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion. Id. at 1661-62. Whereas the historical facts are reviewed for clear error, the ultimate reasonable suspicion inquiry must receive independent appellate review. Id. at 1663.

B. A Broken Vent Window Does Not Create Reasonable

Suspicion That A Car Is Stolen Where The Window

Has Been Temporarily Repaired.

The stop of Mr. xxxxx's vehicle was permissible under the Fourth Amendment only if Officers Newsham and Cummings had reasonable suspicion of unlawful conduct. Terry v. Ohio, 392 U.S. 1, 21 (1968). The trial court ruled that the stop was constitutionally justified because the broken vent window, when combined with the vehicle's presence in a "high crime area" during "the evening hours," was enough to create a reasonable suspicion in the minds of these trained police officers that the car was stolen. Tr. at 120-21. The district court did not make any factual finding as to whether the window frame was filled with jagged glass, as the officers testified, or was partially repaired with tape, as Mr. xxxxx testified, but simply recounted the conflicting testimony and noted that the parties agreed that "there was a broken vent window." (Supp. Tr. 121). The court's ruling therefore assumes that the broken window provided reasonable suspicion that the car was stolen even if the window frame had been taped. (10)

The court's ruling was wrong as a matter of law. A repaired broken vent window does not give rise to reasonable suspicion that a car has been stolen, at least not when, as here, the car at issue is ten years old and the observation occurs in daylight hours. Anyone who drives a car in this jurisdiction knows that it is car owners who must frequently drive around with temporarily repaired wing windows. Car thieves do not generally stop to repair the damage caused by their entry and -- even assuming they were brazen enough to break a window and steal a car in broad daylight -- they would be even less likely to stop for repairs when, as Newsham testified, it was still "light" outside. (Supp. Tr. 21). The officers themselves appeared to recognize this reality when they emphasized their claim that the breakage appeared to be very recent. See Supp. Tr. 10 ("the window was such that it looked like it had just recently been broken. . . . It looked like someone hadn't taken the time to clean the rest of the glass out of the window, so it looked like it may have just been broken"); Supp. Tr. 13 (because of apparent recency of breakage, stop would have been made even if officers had gotten through on radio and learned car had not yet been reported stolen); Supp. Tr. 93 (exposed glass fragments indicated "that the window had been broken very recently," which indicated high probability car was stolen).

This Court has never addressed the issue whether a broken vent window, repaired or unrepaired, is sufficient to raise a reasonable suspicion that the vehicle has been stolen. However, courts in several states have held that a broken vent window is not enough to justify an investigatory Terry stop. In People v. Elam, 179 A.D.2d 229, 584 N.Y.S.2d 780 (N.Y. App. Div. 1992), New York City police had stopped a car solely because of a broken vent window. The court held that this did not create a reasonable suspicion that the car was stolen, as "[a] broken car window is at least as easily suggestive of vandalism, or accident, or theft of a car's contents, as it is of theft of the car itself." Id. at 781. Noting that "[b]roken windows happen to be an unfortunately common incident of car ownership in this city," the court concluded that "there is a very substantial inferential gap between the sighting of a car with a broken window and the conclusion that criminal activity is at hand, and an even more substantial gap intervening before the more specific conclusion that the driver of such a vehicle is guilty of car theft." Id.

Similarly, the Appeals Court of Massachusetts has held that a side window, "smashed out and covered by cloth," even when combined with a missing trunk lock and an askew license plate attached by one screw, does not create a reasonable suspicion that an older car is stolen. Commonwealth v. Kimball, 641 N.E.2d 1066, 1067-68 (Mass. App. Ct. 1994). In xxxxx v. State, 660 So.2d 312, 313 (Fla. Dist. Ct. App. 1995), a Florida appellate court held that the combination of a completely broken out rear window and the car's daytime presence in a "high crime" neighborhood did not amount to a "founded suspicion" of car theft. In People v. Griffith, 19 Cal.App.3d 948, 97 Cal. Rptr. 367 (Cal. Ct. App. 1971), a police officer had stopped a twelve year-old Chevrolet because the lower two-thirds of its right windwing was broken. The court noted that "the Constitution does not permit an officer to stop a motorist in broad daylight merely because he observes some damage, of undetermined age and origin, which does not constitute a violation of the Vehicle Code," id. at 368-69, and reasoned:

It is just as reasonable to infer from the existence of a broken windwing that it was broken for the purpose of stealing some object from the vehicle as that it was broken for the purpose of stealing the vehicle itself.



Id. at 369.

In contrast, the cases which have sustained a stop of a vehicle with a broken window have generally done so where there were other suspicious factors. See, e.g., Taylor v. State, 639 N.E.2d 1052, 1053-54 (Ind. Ct. App. 1994) (stop upheld where vehicle with broken vent window was parked in an unusual location and drove away as officer approached); State v. Butler, 650 A.2d 397, 403 (N.J. Super. Ct. App. Div. 1994) (reasonable suspicion driver engaged in criminal activity where he was sitting alone in motel parking lot, with engine running, unusually far from the registration office, with a broken vent window, after midnight, in high crime neighborhood); Logan v. Commonwealth, 452 S.E.2d 364, 366-69, 370 (Va. Ct. App. 1994) (en banc) (Terry stop justified where officer knew Jeep Wagoneer model extremely popular among car thieves and several thefts of that model had been reported on police radio that same night; four dissenters thought suspicion was adequately articulated but not "reasonable"); In re C.A.P., 633 A.2d 787, 788-89 (D.C. App. 1993) (reasonable suspicion car was stolen where officer noticed broken vent window after driver attempted to make illegal turn and officer thought it strange that window was not covered in December cold); Johnson v. State, 862 S.W.2d 290, 291 (Ark. Ct. App. 1993) (reasonable suspicion to stop car with broken vent window where driver attempted to elude officer even before he had chance to radio in plates); People v. Brown, 627 N.E.2d 340, 345 (Ill. App. Ct. 1993) ("The circumstance of a broken window on a late-model car is so far removed from the ordinary that any competent police officer could be expected to stop the vehicle to investigate"); State v. Serrano, 544 P.2d 101, 103-104 (Wash. Ct. App. 1975) (Terry stop justified where juveniles observed at 1:00 a.m. pulling out of driveway of completely darkened house in a car with a broken wing window and officers had never seen car in neighborhood and thought it "didn't belong" there).

In fact, appellant is aware of only one case that has held that a broken vent window alone creates reasonable suspicion for a stop. See Commonwealth v. Epps, 608 A.2d 1095 (Pa. Super. Ct. 1992). Appellant is aware of no case that has suggested that a broken window that has been subject to partial repair provides reasonable suspicion to believe a car is stolen. Kimball held that a broken window covered with cloth did not justify a stop, even when the trunk lock was missing. 641 N.E.2d at 1067-68. The D.C. Court of Appeals upheld the stop in the C.A.P. case in part because it was suspicious for a driver to leave a broken window uncovered in December. 633 A.2d at 788-89. Likewise, the dissent in Elam emphasized "the absence of any temporary covering" as supporting its inference that the breakage was recent. 584 N.Y.S.2d at 786.

This case must therefore be remanded to the district court to make a finding as to whether or not the window frame was taped. If it was, the broken window did not provide reasonable suspicion to believe the car was stolen and the evidence must be suppressed.

II. MR. xxxxx DOES NOT QUALIFY AS AN ARMED CAREER CRIMINAL UNDER 18 U.S.C. 924(e).

A. Standard of Review

Whether a conviction qualifies as a "violent felony" or "serious drug offense" under 924(e) is a question of law reviewed de novo. United States v. Mathis, 963 F.2d 399, 404 (D.C. Cir. 1992). Because defense counsel did not object to the court's application of ACCA's enhanced penalties, the court's mistake in applying that statute is reviewed for plain error. However, this Court in United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994), explained that "[i]n the special context of sentencing errors," the plain error prejudice requirement is not as "exacting" as it is in the context of trial errors.

When an error in sentencing is at issue . . ., the problem of finality is lessened, for a resentencing is nowhere near as costly or as chancy an event as a trial. . . . [W]e think that for purposes of plain-error review, the burden of persuasion in showing "prejudice" should be somewhat lighter in the sentencing context. While it still seems accurate to say that the defendant must show a reasonable likelihood that the sentencing court's obvious errors affected his sentence . . ., we are somewhat more willing to find "prejudice."



Id. at 288.



B. Public Records Show That Mr. xxxxx Does Not Have

Even One, Let Alone Three, Previous Convictions

For a "Violent Felony" or "Serious Drug Offense."



Section 924(e) provides in pertinent part (emphasis added):

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years . . . .



(2) As used in this subsection--



(A) the term "serious drug offense" means--

. . .

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;



(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that--



(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or



(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Here, Mr. xxxxx's PSR indicated that he had a 1986 D.C. Code attempted robbery conviction, a 1992 D.C. Code attempted robbery conviction, two 1986 D.C. Code drug convictions incurred as part of one incident and under the same felony case number, two different 1992 D.C. Code shoplifting convictions, and four 1982 Maryland Code "breaking and entering" convictions prosecuted together under consecutive case numbers. The district court's statement that Mr. xxxxx qualified for ACCA's 15-year mandatory minimum because of his prior convictions "under the D.C. Code" (S. Tr. 9) suggests that it relied upon the first three convictions, since the shoplifting convictions were obviously misdemeanors and the old "breaking and entering" convictions were under the Maryland Code. It is plain upon the briefest of inspections, however, that none of these convictions in fact qualifies as a "violent felony" or "serious drug offense" under ACCA.

1. The D.C. Code Attempted Robbery Convictions

The PSR writer, the parties, and the district court, all appeared to assume that the two attempted robbery convictions qualified as "violent felon[ies]" under ACCA merely because attempted robbery is classified as a "crime of violence" under the D.C. Code. See PSR 23 n.2 & 26 n.3. See also S. Tr. 6 (prosecutor referencing "crime[s] of violence"); S. Tr. 9 (court referencing "crimes of violence"). That assumption was plainly erroneous.

Under Taylor v. United States, 495 U.S. 575 (1990), it is clear -- and was clear at the time of Mr. xxxxx's sentencing --that the classification of an offense as a "crime of violence" under state law is irrelevant for purposes of determining whether it qualifies as a "violent felony" under 924(e)(2)(B). In interpreting the meaning of "burglary" under that section, the Taylor Court followed the general rule that "federal laws are not to be construed so that their application is dependent on state law," id. at 591-92 (citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-20 (1983), and United States v. Turley, 352 U.S. 407, 411 (1957) ("[I]n the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of a federal statute should not be dependent on state law"). Taylor held that the term "burglary" in 924(e)(2)(B) means burglary in its modern generic sense, regardless of what that crime is labelled by state law. Id. at 598-99. The Court further held that in determining whether a defendant has been convicted of a qualifying felony under ACCA, a sentencing court must take a "categorical approach," looking only to the statutory definition of the prior offense rather than the actual offense conduct. Id. at 599-602. See also United States v. Mathis, 963 F.2d 399, 408 (D.C. Cir. 1992) (Taylor makes underlying facts and evidence irrelevant).

Under Taylor and Mathis, Mr. xxxxx's two prior convictions for "attempted robbery" under the D.C. Code (see PSR 23, 26) do not qualify as "violent felon[ies]" under 924(e). In Mathis, this Court applied Taylor's categorical approach to hold that a "robbery" conviction under 22 D.C. Code 2901 is not a "violent felony" conviction under 924(e) unless the jury instructions on the robbery charge raised the government's burden and required a finding by the jury that the defendant used or threatened to use actual physical force in taking the property from the victim. Id. at 409. This Court reasoned that Congress intended the term "violent felony" under 924(e) to include only "generic" common law robbery and to exclude crimes that a particular jurisdiction may label as "robbery" but which are in fact defined so as to require only a de minimis use of physical force. Id. at 407. Because the D.C. Code crime of "robbery" varies from the common law meaning in that it includes as a taking "by force or violence" not only a taking "against resistance" but also a taking "by sudden or stealthy seizure or snatching," this Court concluded that it was broader than the federal meaning of "violent felony" under 924(e). The Court in Mathis therefore remanded for a determination whether the jury that convicted the defendant of "robbery" necessarily found the use or threatened use of physical force required to satisfy the uniform, federal definition of "violent felony." Id. at 409-410. If the record revealed that the jury instructions would have permitted the jury to have found the "force and violence" requirement satisfied on the basis of a "sudden or stealthy seizure or snatching," the conviction would not count as a 924(e) predicate. Id. at 410 & n.18.

Here, in both the 1986 case and the 1992 case, Mr. xxxxx was originally indicted for robbery under the statute interpreted in Mathis -- 22 D.C. Code 2901 -- but ultimately pleaded guilty to the lesser included offense of attempted robbery. Add. 82 (April 2, 1986 Indictment for robbery (designated Count B)); Add. 75 (Entry of May 8, 1986: "Deft. enters Plea of Guilty to Att. Robbery[,] the Lesser Included Offense of Count (B) Robbery[,] hereafter designated as Count (C) Att. Robbery."); Add. 80 (July 9, 1986 Judgment on "CT. 'C' ATTEMPTED ROBBERY"); Add. 157 (November 3, 1992 Indictment for robbery (designated Count B)); Add. 103 (Entry of July 13, 1993: "Deft. pled to count (C)[,] Att. Robb., LIO of Ct (B)"); Add. 135 (August 24, 1993 Judgment on "Count (C) -Attempted Robbery"). (11) These convictions do not qualify as 924(e) "violent felony" convictions because, as explained in Mathis, they did not necessarily involve more than de minimis use of physical force.

Indeed, because these convictions were the result of guilty pleas rather than jury trials, the issue of whether they qualify under 924(e) can be resolved by this Court without the remand that was necessary in Mathis. The Supreme Court held in Taylor that 924(e) "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." 495 U.S. at 602 (emphasis added). The only exception was set forth as follows:

This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the qualifying felony].

Id. (emphasis added). This was the inquiry for which this Court remanded in Mathis. Here, because Mr. xxxxx pleaded guilty, there were no jury findings made, and this Court should therefore look only to the fact of conviction and the statutory definition of the crime to which he entered the plea. Since this Court held in Mathis that robbery as defined in 22-2901 goes beyond the common law crime of robbery and criminalizes conduct that Congress did not intend to include in the term "violent felony," Mr. xxxxx's convictions for mere attempted robbery obviously cannot be used to enhance his sentence under 924(e).

Even if this Court were to determine that the minimum requirements of the charging documents are relevant, Mr. xxxxx's attempted robbery convictions would not count as enhancing predicates because the robbery indictment in each case alleged that Mr. xxxxx stole property "by force and violence, by means of sudden and stealthy seizure and snatching" -- the method that Mathis held did not involve sufficient use of force to qualify as a "violent felony" within the meaning of 924(e). Add. 82, 157. Cf. United States v. Stahl, 958 F.2d 980, 984 (10th Cir. 1992) (appellate court reviewing copy of California burglary information not considered in district court but submitted by government on appeal and determining that guilty plea to that information could not be used as 924(e) predicate where statute encompassed both lawful and unlawful entries and information did not specify that entry was unlawful).

Because Mathis had been on the books for four years at the time of Mr. xxxxx's sentencing, it was plain and obvious error to have counted the two pleas to D.C. Code attempted robbery as qualifying predicates under 924(e). Mr. xxxxx has shown more than a "reasonable likelihood" that this error affected his sentence -- the minimal prejudice requirement set forth in Saro. 24 F.3d at 287-88.

2. The D.C. Code Drug Convictions

It is clear from the face of the PSR that Mr. xxxxx's drug convictions are not qualifying felonies under 924(e). As described in the PSR, Mr. xxxxx pleaded guilty to "Distribution of Marijuana and Possession of Phencyclidine" in Case No. F-11269. (PSR 24). First, mere possession of phencyclidine does not "involv[e] manufacturing, distributing, or possessing with intent to distribute" a controlled substance as required for a "serious drug offense" under 924(e)(2)(A)(ii). (12) Second, neither the phencyclidine simple possession nor the marijuana offense is punishable by a "maximum term of imprisonment of ten years or more." Id. Both are misdemeanors under District of Columbia law. See 33 D.C. Code 541(d) (penalty for simple possession of any controlled substance); 33 D.C. Code 541(a)(2)(D) (penalty for distributing or possessing with intent to distribute Schedule V controlled substances (such as cannabis, see 33 D.C. Code 522(1)). (13)

Although the felony case number apparently caused the parties and court to assume that the drug convictions were felonies, given the PSR's description of the offenses, it was obvious that they were not in fact punishable by enough imprisonment time to qualify as "serious drug offenses" under 924(e). As with the attempted robbery convictions, Mr. xxxxx can show more than a "reasonable

probability" that he was prejudiced by having these convictions counted as qualifying priors under 924(e). (14)



III. THE SENTENCING COURT PLAINLY ERRED IN SENTENCING MR. xxxxx TO A MANDATORY MINIMUM TERM OF FIVE YEARS OF SUPERVISED RELEASE.

A. Standard of Review.

Because defense counsel did not object to the PSR's conclusion that, under the guidelines, "[t]he Court shall order a term of supervised release of at least 5 years" (PSR 59), the court's mistake in adopting that erroneous conclusion (App. 41) is reviewed for plain error in the less exacting form described in Saro, 24 F.3d at 287-88.

B. The Offense to Which Mr. xxxxx Pleaded Guilty Carries No Mandatory Minimum Supervised Release Period.

The PSR writer summarized the sentencing court's supervised release options as follows:

58. Statutory Provisions: A term of supervised release of not more than 5 years may be imposed. 18 U.S.C. 3583(a) and (b)(1).

59. Guidelines Provisions: The Court shall order a term of supervised release of at least 5 years. U.S.S.G. 5D1.1(a) and 5D1.2(b).

These conclusions were facially contradictory. The statutory recommendation ( 58) assumed that the maximum term of imprisonment under 924(e) is life imprisonment, (15) thus treating Mr. xxxxx's conviction as a "Class A felony" (see PSR 55; 18 U.S.C. 3559(a)(1)) subject to "not more than five years" of supervised release under 3583(b)(1). The guidelines recommendation ( 59), however, suggested that Mr. xxxxx was subject to a mandatory minimum supervised release term of "at least 5 years," citing only U.S.S.G. 5D1.1(a) ("The court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or when required by statute") and U.S.S.G. 5D1.2(b) (setting forth supervised release guideline ranges (i.e., 3 to 5 years for a Class A felony) but providing "that the term of supervised release imposed shall in no event be less than any statutorily required term of supervised release"). The PSR cited no "statutorily required term of supervised release" applicable to 922(g) or 924(e) and appellant is aware of none. The PSR's error in concluding that the court "shall order a term of supervised release of at least 5 years" (PSR 59; App. 41) was obvious on the face of the PSR and the relevant statutes. Cf. United States v. Edelin, 996 F.2d 1238, 1244-45 (D.C. Cir. 1993) (finding sentencing court's departure plain error where this Court could determine that the basis for the departure was obviously improper). The error was also prejudicial to Mr. xxxxx. Even assuming the PSR was correct to treat Mr. xxxxx's offense as a Class A felony, the correct guideline range would have permitted a supervised period of as little as three years (see 5D1.2(a)(1)). Given that the district court sentenced Mr. xxxxx at the bottom of the guideline imprisonment range, there is a reasonable likelihood that, absent this error, it would have done the same with respect to the supervised release range.



IV. MR. xxxxx'S COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE ANY CHALLENGE TO THE 15-YEAR ACCA ENHANCEMENT AND THE 5-YEAR SUPERVISED RELEASE PERIOD.

A. Standard of Review.

To obtain relief for a violation of the Sixth Amendment right to effective assistance of counsel, appellant must show (1) that his attorneys' performance was, under all the circumstances, unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-694 (1984).

B. Mr. xxxxx Was Prejudiced By His Lawyer's Failure to Object to the PSR's Obviously Questionable Sentencing Recommendations.

Even if this Court were to conclude that the sentencing errors discussed in Parts II and III, supra, were not sufficiently "obvious" to qualify as "plain error," they were nevertheless obvious enough that defense counsel failed to meet the Strickland standard of competence in failing to object to them. See United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir. 1996) (Court assumes arguendo that counsel were deficient by failing to make so-called "Beach" objection to expert testimony, even though its admission could not have been "plain error" since this Court had never adopted "Beach rule"). (16)

Here, defense counsel's representation at sentencing was clearly deficient. Despite Taylor's clear holding that state code labels are irrelevant and Mathis's clear holding that robberies requiring only "sudden and stealthy seizure" are not "violent felonies," defense counsel failed to object to the PSR's reliance on the D.C. Code's classification of "attempted robbery" as a "crime of violence" or to object in any way to the qualification of Mr. xxxxx's attempted robbery convictions as ACCA predicates. Likewise, defense counsel failed to recognize that the drug convictions described in the PSR were non-qualifying misdemeanors under D.C. law. Finally, defense counsel failed to recognize the lack of any statutory authority for the mandatory supervised release term recommended in the PSR. Even assuming arguendo that the overlooked errors were not obvious enough to be "plain" error, they were surely sufficiently questionable that any competent defense lawyer would have raised them.

This Court's general practice when a defendant claims ineffective assistance of counsel for the first time on appeal is to remand for an evidentiary hearing. United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir. 1995). Fennell recognized, however, that the Court will make an exception to that practice when the trial record conclusively shows that the appellant is entitled to relief. Id. In Fennell, that exception did not apply because each of the claimed errors "could have involved a reasoned tactical choice, and so cannot be resolved without a hearing in district court." Id. at 1404. Here, unlike in Fennell, counsel's errors could not possibly have been the result of any "reasoned tactical choice." Unlike strategy decisions made at trial, which have costs and benefits that can be weighed differently by equally competent attorneys, there could be no conceivable benefit to Mr. xxxxx from the withholding of valid objections to major sentence enhancements. Compare, e.g., Catlett, 97 F.3d at 571 (explaining how trial counsel could have perceived benefit from attempting to block expert testimony by asking that officer be treated as expert and then challenging his qualifications instead of by raising "Beach" objection). Therefore, even aside from whether the errors in Mr. xxxxx's sentence qualify as "plain error," this Court should order a resentencing at which Mr. xxxxx has counsel meeting the minimum requirements of the Sixth Amendment.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxx must be vacated and the evidence seized in the stop ordered suppressed. In the alternative, the case should be remanded for a factual finding as to whether Mr. xxxxx's window frame had been partially repaired. With respect to Mr. xxxxx's sentence, this Court should find the district court's application of the ACCA enhancement and its imposition of a minimum 5-year supervised release term to be plain error and remand for resentencing. In the event the Court denies such relief, it should nevertheless remand for resentencing due to sentencing counsel's ineffective assistance.



Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Wendell T. xxxxx





CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Wendell xxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Wendell xxxxx, two copies of the related Addendum, and one copy of the Appendix have been served by mail on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 27th day of December, 1996.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







1. "App. __" refers to pages of the Appendix filed with this brief. "S.H. Tr. __" refers to pages of the January 25, 1996, suppression hearing transcript. "Plea Tr. __" refers to pages of the February 28, 1996, transcript of Mr. xxxxx's guilty plea. "S. Tr. __" refers to pages of the May 30, 1996, sentencing transcript.

2. Newsham testified that he first saw the Buick coming towards him in the opposite lane, and noticed the broken window as Mr. xxxxx completed a U-turn and pulled in front of the cruiser. (Supp. Tr. 10, 24-26).

3. Newsham could not recall whether Mr. xxxxx produced the registration at that time but did recall inspecting it at some point. (Supp. Tr. 21-22, 30-31, 32-33). When Cummings ran the tags through the dispatcher, there was no indication the car was stolen. (Supp. Tr. 21).

4. According to the PD-163 arrest report, the gun dropped to the floorboard, not the door sill, and did so before Mr. xxxxx was ordered from the car: "Upon approaching the vehicle on the driver's side, [Newsham] heard defendant xxxxx dropping an object to the floorboard. [Newsham] then removed defendant xxxxx from the vehicle, at which time [Newsham] recovered a fully loaded revolver." (Supp. Tr. 50). Newsham denied having told that version of events to the officer who prepared the arrest report. (Supp. Tr. 51-52).

5. At the time of the stop, the car was actually titled to Mr. xxxxx's sister's husband, an Army sergeant stationed in Virginia Beach. (Supp. Tr. 55, 85).

6. Officer Newsham had testified that Mr. xxxxx made the U-turn on Barnaby Street (Supp. Tr. 24), but Officer Cummings confirmed that Mr. xxxxx's account was correct. (Supp. Tr. 92, 99-100).

7. Newsham testified that "I believe" the U-turn he observed was a traffic violation but, when asked if it was "irregular," responded simply that "[y]ou're not supposed to cross a double solid line" and acknowledged that the turn was made mid-block (Supp. Tr. 11, 24). This testimony did not establish a violation under the District of Columbia traffic code. See 18 D.C.M.R. 2204.6 (1995) (prohibiting disobedience of "NO U-TURN" sign); 2204.7 (prohibiting U-turns at intersections and nearby crosswalks); 2204.8 (prohibiting U-turns that interfere with other traffic). Compare 2201.9 (prohibiting "driv[ing]" on left side of 4-inch double solid lines) with 2201.10 (prohibiting driving on left side of median spaces or physical barriers and driving "over, across, or within" any such divider except at designated crossovers). In any event, the government, like Newsham himself, never sought to justify the stop on the basis of any traffic violation. The court ultimately noted in its factual findings that there were no traffic violations, but rejected the government's argument that it was for this reason that Mr. xxxxx felt confident in keeping the gun on his person even though the police were right behind him. (Supp. Tr. 86, 126).

8. The PSR listed the following prior convictions:



22 -- Guilty plea in Prince George's County Circuit Court to four counts of "House Breaking and Entering" committed September 30, 1982.



23 -- Guilty plea in D.C. Superior Court to "Attempted Robbery" committed March 13, 1986.



24 -- Guilty plea in D.C. Superior Court to "Distribution of Marijuana and Possession of Phencyclidine" committed November 16, 1986.



25 -- Guilty after D.C. Superior Court bench trial of "Shoplifting" committed June 1, 1992.



26 -- Guilty plea in D.C. Superior Court to "Attempted Robbery" committed June 19, 1992.



27 -- Guilty plea in D.C. Superior Court to "Shoplifting" committed July 2, 1992.

9. The court explained again later that it considered Mr. xxxxx's prior crimes to be different than, for example, bank robberies committed by "someone who is not addicted to drugs and only robs banks just to make money the easy way and harms people." S. Tr. 8.

10. Given that the car turned out not to have been stolen, Mr. xxxxx's testimony was clearly the more credible on this point since it would be highly unusual for a car's lawful occupant to leave jagged glass jutting out of a broken window frame. Such a person would presumably remove such a hazard immediately, not only for the obvious safety reasons, but to avoid the very circumstance that occurred here -- being mistaken by police for a car thief. The government admitted as much in its opposition to Mr. xxxxx's suppression motion. See App. 28 ("Any lawful occupant of a vehicle with a broken vent window would cover the hole for temperature control, to discourage additional thefts or vandals, and prevent possible injury on any remaining jagged edges of glass.").

11. The contents of the public record court files from Mr. xxxxx's prior convictions, copies of which have been included in appellant's Addendum, are proper subjects for judicial notice even though they were not brought to the attention of the sentencing court below. See Fed. R. Evid. 201(b)(2) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); Fed. R. Evid. 201(d) ("A court shall take judicial notice if requested by a party and supplied with the necessary information"); Fed. R. Evid. 201(f) ("Judicial notice may be taken at any stage of the proceeding") (emphasis added); 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence 5106 at 505 (1977) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records"); 1 J. Weinstein & M. Berger, Weinstein's Evidence 201[06] at 201-60 (1990) ("Although subdivision (f) does not specifically so state, judicial notice is permissible on appeal even if it had not been urged below, despite the usual rule limiting appeals to points raised at trial") (emphasis added); Colonial Penn Insurance Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989) (federal appellate court taking judicial notice of state court guilty pleas to arson of property at issue in civil appeal even though pleas were entered after judgment in district court); Veg-Mix, Inc. v. Dept. of Agriculture, 832 F.2d 601, 607 (D.C. Cir. 1987) ("[c]ourts may take judicial notice of official court records"); Reiner v. Washington Plate Glass Co., 711 F.2d 414, 416 & nn.3-5 (D.C. Cir. 1983) (this Court undertaking on its own to research records of D.C. Recorder of Deeds Office to resolve dispute as to date company was incorporated and taking judicial notice under Fed. R. Evid. 201(b)(2) of the incorporation and reincorporation certificates it uncovered).

12. Mr. xxxxx's trial attorney was under the mistaken impression at the suppression hearing that Mr. xxxxx had been convicted of possession with intent to distribute PCP. (Supp. Tr. 71).

13. Although it makes no difference for purposes of 924(e), the PSR is factually incorrect when it says that Mr. xxxxx was convicted of "distribution" of marijuana. The court jacket shows that the marijuana count Mr. xxxxx pleaded guilty to was not Count F (distribution of marijuana), but rather Count H (possession with intent to distribute marijuana). The phencyclidine plea was to Count I (simple possession of phencyclidine), the lesser included offense of Count G (possession with intent to distribute phencyclidine). Add. 84-89 (indictment, judgment and docket entries showing plea to Counts H and I).

14. The 1982 Maryland "breaking and entering" convictions were not, and could not have been, the basis for the district court's application of ACCA. First, the court mentioned only Mr. xxxxx's D.C. Code offenses, not his Maryland Code offenses. (S. Tr. 9). Second, to qualify as a "violent felony," a property crime must be one that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury." 924(e)(2)(B)(ii) (emphasis added). Given Taylor's "categorical" approach, a sentencing court could not qualify a conviction under this provision without determining the elements of the particular statute at issue, an inquiry that was not undertaken here.

Third, the relevant court records show that Mr. xxxxx was in fact convicted of one count of "attempted housebreaking" and three counts of "housebreaking" pursuant to the Maryland's old "daytime housebreaking" statute, former Md. Ann. Code art. 27, 30(b). See Add. 14, 15, 25; Add. 31, 32, 39; Add. 44, 45, 52; Add. 57, 58, 66. The crime set forth in 30(b) was not considered "burglary" even under Maryland law, see, e.g., Reagan v. State, 244 A.2d 623, 625-26 (Md. Ct. Spec. App. 1969), let alone under 924(e). Under Taylor, ACCA "burglary" requires "an unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." 495 U.S. at 599 (emphasis added). Maryland "daytime housebreaking" does not contain any element of "entry," but merely requires the "breaking" of a dwelling house with the intent to steal. See Hawkins v. State, 436 A.2d 900, 902 (Md. 1981) ("Under 30(b) . . . merely a breaking is required rather than a breaking and an entering"); Reagan, 244 A.2d at 626 (same). "Congress singled out burglary" as an ACCA predicate, "as opposed to other frequently committed property crimes," because "[t]he fact that an offender enters a building to commit a crime often creates the possibility of violent confrontation." Taylor, 495 U.S. at 588 (emphasis added). Crimes that do not present a comparable risk were not intended to qualify as ACCA predicates. See United States v. Martinez, 954 F.2d 1050, 1053-54 (5th Cir. 1992) ("because attempted burglary does not require entry into a building or habitation, it simply does not present the same degree of danger that is presented by burglary"). Cf. United States v. Custis, 988 F.2d 1355, 1363-64 (4th Cir. 1993), aff'd on other grounds, 511 U.S. 485 (1994) (attempted "breaking and entering" of a dwelling house under former Md. Ann. Code art. 27, 31A, does qualify as ACCA predicate). The risk of physical injury when there is no requirement of attempted entry is simply not great enough to qualify as a "violent felony" under 924(e). See Mathis, 963 F.2d at 407 (when expanding ACCA predicates in 1986, "Congress was primarily concerned with broadening the scope of the provision to encompass truly serious crimes") (emphasis added).

15. In fact, the penalty enhancement provision of 924(e) states no maximum term of imprisonment, but merely states that an ACCA offender will be imprisoned for "not less than fifteen years." The maximum term under the substantive offense of conviction, 922(g), is "10 years." 18 U.S.C. 924(a)(2).

16. The Catlett court ruled that the defendants had failed to show that such deficiency prejudiced them because they had not shown a reasonable probability that a Beach objection would have been successful or changed the outcome of the trial. Id. at 571-72. Here, by contrast, the objections Mr. xxxxx's counsel failed to raise have clear merit and, if made, would have resulted in a significantly lower sentence. Specifically, even assuming the PSR's unenhanced offense level calculation of 24 was correct (PSR 12), absent the ACCA enhancement and with three points for acceptance of responsibility, Mr. xxxxx should have qualified for a guideline imprisonment range of no more than 77-96 months (Offense Level 21 and Criminal History Category VI) and a guideline supervised release range of 2-3 years. See U.S.S.G. 5D1.2(a)(2) (supervised release range for Class C felonies such as 922(g)). Instead, because of counsel's failure to object, Mr. xxxxx was sentenced to 180 months in prison and 5 years of supervised release.