CHARLES A. KARLIN, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-5858

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A13) is reported
at 852 F.2d 968.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 20, 1988.
A petition for rehearing was denied on September 14, 1988.  The
petition for a writ of certiorari was filed on November 11, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a search of the passenger compartment of petitioner's
van following his arrest for burglary violated the Fourth Amendment.

   2. Whether petitioner's sentence for possession of a firearm by a
previously convicted felon was improperly enhanced under the
now-repealed ARmed Career Criminal Act of 1984, because it was based
on an allegedly void state burglary conviction.

   3. Whether petitioner's second state burglary conviction was
adequately proved for purposes of enhancing his sentence under the
Armed Career Criminal Act of 1984.

   4. Whether petitioner's enhanced sentence violated the Ex Post
Facto Clause or was fundamentally unfair.

   5. Whether the Armed Career Criminal Act of 1984 constituted a
sentence enhancement provision rather than a separate offense.

   6. Whether separate sentences were properly imposed on petitioner
for engaging in the business of dealing in firearms without a license
and for possessing a firearm after having been convicted of a felony.

   7. Whether the evidence was sufficient to sustain petitioner's
conviction for engaging in the business of dealing in firearms without
a license.

                               STATEMENT

   On June 3, 1986, a grand jury sitting in the Eastern District of
Wisconsin returned an indictment charging petitioner with engaging in
the business of dealing in firearms without a license, in violation of
18 U.S.C. 922(a)(1) (Count 1), and six counts of possession of a
firearm by a previously convicted felon, in violation of 18 U.S.C.
App. (Supp. II) 1202(a) (Counts 2-7).  After a jury trial, petitioner
was convicted on Counts 1 and 7 and was acquitted on Counts 2 through
6.  He was sentenced to concurrent terms of five years' imprisonment
on Count 1 and 15 years' imprisonment on Count 7.

   1. The first six counts of the indictment were based on
petitioner's dealings with Donald Chaon, a Wisconsin gun collector.
The evidence at trial showed that petitioner sold about 15 firearms to
Chaon between November 8, 1984, and November 11, 1985.  Chaon paid
cash or traded other items, such as collectible coins, for the
firearms.  During that period, petitioner also attempted to sell other
firearms to Chaon, who declined to purchase them for various reasons,
including their high price.  Chaon collected various items and
considered petitioner his "picker" -- a person who scouts for
collectible items and sells them to a collector.  Chaon in turn
occasionally sold or traded firearms to other collectors.  The
firearms were all manufactured outside the State of Wisconsin.  Pet.
App. A3.

   Count 7 of the indictment was based on petitioner's possession of a
firearm on December 19, 1985, when he was arrested on suspicion of
burglary.  That day, a police officer received reports of a burglary
suspect being chased by citizens.  When the officer arrived at a
parking lot, he found two citizens standing over petitioner, who was
lying face down on the ground with his foot inside the open driver's
door of a van.  The citizens told the officer that petitioner was the
man they had chased and that one of them had removed petitioner from
the van.  The officer arrested petitioner, handcuffed him, brought him
to his feet, patted him down, and placed him in the rear seat of the
officer's patrol car.  The officer then searched the van and found a
.38 caliber revolver inside a stocking cap under the driver's seat.
Pet. App. A3-A4.

   2. With respect to the firearm offense set forth in Count 7, the
indictment charged that petitioner was subject to enhanced penalties
under the Armed Career Criminal Act, 18 U.S.C. App. (Supp. II)
1202(a), because he had previously been convicted of three burglaries.
 /1/ The indictment charged that petitioner had the following three
prior convictions for burglary:  (1) a conviction on April 4, 1966, in
the County Court of Manitowic County, Wisconsin;  (2) a conviction on
October 11, 1968, in the County Court of Manitowic County, Wisconsin;
and (3) a conviction on August 1, 1978, in the County Court of Dodge
County, Wisconsin.

   Before trial, the government and defense counsel stipulated that
petitioner had been convicted of the third burglary on August 1, 1978,
and that evidence of the two other convictions would not be presented
to the jury.  They further stipulated that the fact of petitioner's
three previous convictions was not an element of the offense to be
proved at trial, but rather was a requirement to be established at
sentencing in order to invoke the enhanced penalties of Section
1202(a).  At sentencing, the government established that petitioner
previously had been convicted of the three burglaries referred to the
indictment.  The district court accordingly found that petitioner was
subject to the enhanced sentencing provisions of Section 1202(a), and
it imposed sentence on Count 7 in accordance with the statute.  Pet.
App. A7-A8.

   3. The court of appeals affirmed (Pet. App. A1-A13).  The court
first rejected (id. at A4-A7) petitioner's claim that the Fourth
Amendment required the suppression of the .38 caliber revolver found
in his van that formed the basis for his conviction on Count 7.
Relying on the bright-line rule of New York v. Belton, 453 U.S. 454
(1981), the court held (id. at A4-A5) that the revolver had been
properly seized during a valid search of the van incident to
petitioner's arrest.  The court found (id. at A7) that "the arresting
officer followed reasonable procedure in securing custody of
(petitioner), and then proceeding with a search of the passenger
compartment of the van into which (petitioner) might have reached at
the time of the arrest." The court accordingly concluded (ibid.) that
"under Belton, such a search is deemed reasonable, without determining
whether the officer had rendered (petitioner) incapable of reaching
into the van." The court of appeals next rejected (Pet. App. A7-A8)
petitioner's argument that the Armed Career Criminal Act of 1984
created a new and separate firearm possession offense that requires
proof of three previous burglary convictions as an element of the
offense.  Following its decision in United States v. Pirovolos, 844
F.2d 415 (7th Cir. 1988), the court ruled (Pet. App. A8) that the
Armed Career Criminal Act merely established an enhanced penalty for
armed repeat offenders and did not create a separate offense.  The
court accordingly concluded (ibid.) that the prior convictions did not
have to be proved in evidence at trial, because the task of
determining whether the convictions satisfied the enhancement
provisions of the statute was for the district court as part of the
sentencing process.

   The court of appeals rejected (Pet. App. A9-A11) petitioner's
claims that his 1966 and 1968 burglary convictions could not serve as
predicate prior convictions for purposes of enhancing his sentence
under the Armed Career Criminal Act.  The court first ruled (Pet. App.
A9) that petitioner's 1966 conviction was not void and could properly
be used to enhance his sentence.  The court also found (id. at A10)
that the government had adequately established the fact of the 1968
conviction, even though the government was unable to produce a
certified copy of the judgment of conviction.  The court also
concluded (id. at A11) that the age of the two convictions did not
disqualify them from being used to enhance petitioner's sentence.

   The court of appeals also rejected (Pet. App. A11) petitioner's
claim that the enhanced penalties of the Armed Career Criminal Act
operated as an ex post facto law by adding new penal consequences to
his three previous burglary convictions.  Relying on Gryer v. Burke,
334 U.S. 728 (1948), the court concluded (Pet. App. A11) that "the
provision is not invalidly retroactive because it is not an additional
penalty for the offenses committed before its enactment, but rather an
increased penalty for the offense which occurred after enactment."

   Finally, the court of appeals rejected (pet. App. A13) petitioner's
claim that his separate sentences on Counts 1 and 7 constituted
multiple punishment in violation of the Double Jeopardy Clause.  The
court of appeals first observed (ibid.) that the convictions on Counts
1 and 7 were based on two different incidents because "the weapon
involved in Count 7 was not involved in Count 1, charging dealing."
Applying the test of Blockburger v. United States, 284 U.S. 299
(1932), the court also concluded (Pet. App. A13) that separate
sentences would be permissible on Counts 1 and 7 even if the charges
arose out of the same incident, because "Section 1202(a)(1) required
proof of a previous conviction of felony, which is not required under
Section 922(a)(1)" and "Section 922(a)(1) requires proof of engaging
in the business of dealing in firearms, which was not required under
Section 1202(a)(1)."

                               ARGUMENT

   In this Court, petitioner renews each of the challenges he raised
in the court of appeals to his conviction and sentence on Count 7.  He
also contends that the evidence was insufficient to sustain his
conviction on Count 1.

   1. Petitioner first claims (Pet. 3-9) that the .38 caliber revolver
that underlies his conviction on Count 7 for possession of a firearm
should have been suppressed because it was found during an illegal
search following his arrest.

   The court of appeals correctly concluded (Pet. App. A4-A7) that the
validity of the search of petitioner's van is controlled by this
Court's decision in New York v. Belton, 453 U.S. 454 (1980).  In
Belton, this Court adopted a bright-line rule "that when a policeman
has made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile * * * (and) may also examine
the contents of any containers found within the passenger compartment"
(id. at 460;  footnotes omitted).  Here, the police officer arrested
petitioner for burglary after petitioner had been removed from his van
by the citizens who had pursued him.  After petitioner was arrested,
the police officer searched the van and found the .38 caliber revolver
inside a stocking cap under the driver's seat.  And as petitioner
concedes (Pet. 4), the search took place no more than "several
minutes" after he was arrested.  Accordingly, the search of the
passenger compartment of petitioner's van following his arrest falls
squarely within the scope of the searches incident to arrest that are
allowed under Belton's bright-line rule.

   There is no merit to petitioner's claim that the Belton rule does
not apply here because petitioner was handcuffed and placed in the
squad car before the police officer searched his van, while the
occupants of the car in Belton were not similarly restricted.  As the
court of appeals correctly noted (Pet. App. A5), "(i)f those
differences in degree are to control, the Court's preference (in
Belton) for a straightforward rule for guidance of police officers and
avoidance of hindsight determinations in litigation would be
frustrated." Indeed, on the facts of Belton, it is clear that the
occupants had no real access to the car as it was being searched,
since they were outside the car, separated on the highway, and had
already been arrested.  The Court in Belton upheld the search not
because the occupants actually had access to the passenger compartment
of the car, but rather because "'(a) single familiar standard is
essential to guide police officers, who have only limited time and
expertise to reflect on and balance the social and individual
interests in the specific circumstances they confront'" (453 U.S. at
458 (quoting Dunaway v. New York, 442 U.S. 200, 213-214 (1979)).  The
Court therefore made clear that it was adopting a categorical rule
allowing a search of the passenger compartments of vehicles even when
there was no significant likelihood that the occupants would gain
access to weapons or evidence inside the vehicle.

   For that reason, there is no merit in petitioner's argument that
the search of his van was not a valid search incident to arrest under
the "immediate control" test of Chimel v. California, 395 U.S. 752
(1969), because he no longer had access to the passenger compartment
of the van after being handcuffed and placed in the police squad car.
The Court in Belton made plain that its bright-line rule authorizing
the search of a passenger compartment and any containers found in it
incident to the occupant's arrest "determine(s) the meaning of
Chimel's principles in this particular and problematic context" (453
U.S. at 460 n.3).  Indeed, the Court in Belton limited the scope of a
permissible search to the passenger compartment because "(o)ur reading
of the cases suggests the generalization that articles inside the
relatively narrow compass of the passenger compartment of an
automobile are in fact generally, even if not inevitably, within 'the
area into which an arrestee might reach in order to grab a weapon or
evidentiary ite(m)'" (id. at 460).

   Petitioner likewise errs in relying (Pet. 7) on Michigan v. Long,
463 U.S. 1032 (1983), in challenging the search incident to arrest
here.  In Long, this Court merely held that a protective search of the
passenger compartment of a car during a Terry stop is "limited to
those areas in which a weapon may be placed or hidden" and requires
that the police officer have a reasonable suspicion that "the suspect
is dangerous and * * * may gain immediate control of weapons" (463
U.S. at 1049).  Indeed, the Court in Long expressly noted that "the
'bright line' (rule of) Belton clearly authorizes * * * a search (of
the passenger compartment of an automobile) whenever officers effect a
custodial arrest." The Court distinguished the protective searches
permitted during a Terry stop from the searches incident to arrest
allowed by Belton because "(a)n additional interest exists in the
arrest context, i.e., preservation of evidence, and this justifies an
'automatic search'" (id. at 1049 n.14).

   2. Petitioner next renews his contention (Pet. 9-11) that his 1966
burglary conviction should not have been counted as a predicate
conviction for purposes of enhancing his sentence under the Armed
Career Criminal Act of 1984, because the conviction was void under
state law.

   Petitioner was 20 years old on April 4, 1966, when he was convicted
in the County Court of Manitowoc County, Wisconsin, of a burglary
committed while he was 19 years old.  Pet. App. A9.  He argues that
the county court lacked jurisdiction over him at that time because he
had previously been found delinquent and had been committed to the
State Department of Public Welfar in juvenile proceedings in 1961.
Petitioner asserts that the county court lacked jurisdiction to try
him even though he was over 18 years old, because the juvenile court
had exclusive jurisdiction over him until he reached 21 years of age
and did not cede its jurisdiction to the county court.  He therefore
contends that his 1966 conviction was void and cannot be used to
enhance his sentence.

   The court of appeals properly rejected petitioner's claim (Pet.
App. A9).  As the court of appeals pointed out (ibid.), the state
court had refused to set aside petitioner's 1966 conviction on the
very same grounds in 1980.  The state court had concluded that
although the state statutes permitted the Department of Public Welfare
to exercise custodial control over a child until the age of 21, the
statute also expressly provided that continuing jurisdiction for
custody purposes "shall not prevent * * * a criminal court from taking
jurisdiction of a person eighteen or over who is alleged to have
violated a state or federal law." Wis. Stat. Section 48.34(4) (1965).
Because petitioner was over 18 years old when he committed the
burglary, the court of appeals correctly concluded that petitioner's
1966 conviction was not void and could be used to enhance his sentence
under Section 1202(a)(1).

   3. Petitioner also renews his contention (Pet. 11-14) that his 1968
burglary conviction could not be counted as a predicate felony for
purposes of enhancing his sentence under section 1202(a)(1), because
the fact of the conviction was not established by a certified copy of
the judgment of conviction.  That contention is devoid of merit.

   The government was unable to produce a certified copy of
petitioner's 1968 judgment of conviction for burglary because the
state records had been misplaced.  As the court of appeals properly
observed, however, there is "no principle making the judgment of
conviction the exclusive means by which the fact of conviction may be
proved" (Pet. App. A10;  footnote omitted).  Here, the fact of
petitioner's 1968 conviction was established by the transcript of the
arraignment and sentencing proceedings dated October 11, 1968, at
which petitioner pleaded guilty to all four counts of an information;
a copy of the information;  and the authentication sheet signed by the
clerk of the court and the presiding state judge.  Indeed, the court
of appeals emphasized that "(t)he occurrence of the 1968 conviction of
burglary is very clear" (id. at A10 n.6).  The court therefore
correctly concluded that the 1968 conviction could properly be
considered for the limited purpose of enhancing petitioner's sentence
under Section 1202(a)(1).

   4. Petitioner next claims (Pet. 14-20) that the use of the three
prior felony convictions to enhance his sentence under Section
1202(a)(1) is fundamentally unfair and violate the Ex Post Facto
Clause.

   a. Petitioner first argues (Pet. 14-15) that the use of his 1966
and 1968 convictions to enhance his sentence under Section 1202(a)(1)
is unfair because the convictions are too old.  As the court of
appeals concluded (Pet. App. A11), however, those convictions may
properly be considered for purposes of enhancing petitioner's sentence
under Section 1202(a)(1), because the statute itself placed no time
limitation on the age of previous convictions that could be
considered.

   b. Petitioner also argues (Pet. 15) that application of the 15-year
minimum sentence of Section 1202(a)(1) violates the Ex Post Facto
Clause because the enhanced sentencing provision was added after
petitioner had committed the three burglaries on which his enhanced
sentence was based.  The court of appeals, however, properly relied on
Gryer v. Burke, 334 U.S. 728, 732 (1948), in concluding that "the
provision is not invalidly retroactive because it is not an additional
penalty for offenses committed before its enactment, but rather an
increased penalty for the offense which occurred after its enactment"
(Pet. App. A11).

   c. Petitioner next contends (Pet. 15-16, 19-20) that his conviction
under Section 1202(a)(1) violates the Ex Post Facto Clause because the
firearm he possessed had traveled in interstate commerce before the
date that Section 1202(a)(1) was enacted.  That contention is
frivolous.  Petitioner's possession of the firearm, the actus reus of
the offense, occurred after Section 1202(a)(1) was enacted;  the
statute merely requires that the firearm traveled in interstate
commerce at some time in the past, not that the interstate travel
occurred after the effective date of the statute.  See United States
v. D'Angelo, 819 F.2d 1062, 1065-1066 (11th Cir. 1987);  United States
v. Woods, 696 F.2d 566, 571-572 (8th Cir. 1982);  United States v.
Hopkins, 529 F.2d 775, 777 (8th Cir. 1976), cert. denied, 431 U.S. 965
(1977).  Cf. Scarborough v. United States, 431 U.S. 563 (1977).

   d. Petitioner also contends (Pet. 16-19), for the first time in
this Court, that his 1966 burglary conviction could not be used as a
predicate conviction to enhance his sentence under Section 1202(a)(1),
because his 1966 conviction was not for "burglary" within the meaning
of Section 1202(a).  That contention, however, is based on
petitioner's mistaken assertion (Pet. 19) that the version of Section
1202(a) applicable to this crime failed to define the term "burglary."
To the contrary, Section 1202(c)(9) of the 1984 Act expressly provided
that "'burglary' means any felony consisting of entering or remaining
surreptitiously within a building that is property of another with
intent to engage in conduct consituting a Federal or State offense."
Since petitioner concedes (Pet. 17) that his 1966 conviction was based
on conduct that constituted an offense under the Wisconsin burglary
statute, that conviction was plainly a predicate previous conviction
for burglary within the meaning of Section 1202(a)(1).  /2/

   5. Petitioner next renews his contention (Pet. 20-27) that his
sentence on Count 7 is unlawful because the Armed Career Criminal Act
created a separate offense, rather than simply enhancing the penalty
for an existing crime.  In rejecting that contention, the court of
appeals adopted the view of all but one of the circuits that have
addressed the issue and concluded that "'the additional (robbery or
burglary) convictions were relevant only for sentencing;  admission at
trial of evidence of multiple convictions not only would be
unnecessary but also would be prejudicial'" (Pet. App. A8 (quoting
United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir. 1988)).

   Although petitioner is correct that there is a conflict among the
courts of appeals on this question, that conflict is of only
historical interest and does not warrant review by this Court.  /3/
The question is of no continuing importance, because the Armed Career
Criminal Act of 1984 was repealed and replaced as of November 15,
1986, by the Career Criminal Amendments Act of 1986 (see note 2,
supra).  The new statute, 18 U.S.C. 924(e)(1), clearly constitutes an
enhancement provision, and does not even arguably create a new
offense.  /4/ The question presented in the petition therefore will
not arise in the case of any offenses committed after November 15,
1986.  This Court has recently denied certiorari in a number of other
cases raising the same issue.  See Rush v. United States, No. 87-6861
(June 30, 1988);  Felton v. United States, No. 87-6884 (June 30,
1988);  Cloyd v. United States, No. 87-6988 (June 30, 1988);  Finch v.
United States, No. 87-6991 (June 30, 1988);  Davis v. United States,
No. 87-7064 (June 30, 1988);  Blannon v. United States, No. 87-6549
(May 16, 1988);  Strickler v. United States, No. 87-6265 (Mar. 21,
1988);  Jackson v. United States, No. 87-5667 (Jan. 11, 1988);
Hawkins v. United States, No. 86-6847 (Oct. 5, 1987);  Gregg v. United
States, No. 86-6009 (Mar. 9, 1987).  /5/ It should do the same here.

   6. Petitioner also renews his contention (Pet. 27-28) that he
improperly received separate sentences on Count 7 for illegal
possession of a firearm under Section 1202(a) and on Count 1 for
engaging in the business of dealing in firearms without a license
under 18 U.S.C. 922(a)(1).  The court of appeals correctly rejected
that contention.

   In the first place, the Double Jeopardy Clause's prohibition on
multiple punishment is not implicated here because, as the court of
appeals pointed out (Pet. App. A13), petitioner's convictions on
Counts 1 and 7 arose out of two wholly separate and distinct
incidents.  Petitioner therefore did not receive multiple punishment
for the same conduct.

   In any event, the permissibility under the Double Jeopardy Clause
of cumulative punishment for particular conduct is a matter of
legislative intent.  See Ohio v. Johnson, 467 U.S. 493, 499 & n.8
(1984);  Missouri v. Hunter, 459 U.S. 359, 366, 368 (1983);  Whalen v.
United States, 445 U.S. 684, 691-693 (1980).  This Court "has
consistently relied on the test of statutory construction stated in
Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine
whether Congress intended the same conduct to be punishable under two
criminal provisions." Ball v. United States, 470 U.S. 856, 861 (1985).
 In the absence of a clear expression of legislative intent to the
contrary, consecutive sentences are appropriate under Blockburger if
each statutory provision requires proof of at least one fact not
required by the other.  Albernaz v. United States, 450 U.S. 333, 340
(1981).  In this case, the court of appeals correctly applied the
Blockburger test and concluded (Pet. App. A13) that separate sentences
are authorized for violations of Sections 1202(a) and 922(a)(1)
because each section requires proof of at least one fact not required
by the other.  Accordingly, petitioner would have properly received
separate sentences on Counts 1 and 7 even if both offenses had arisen
out of the same conduct.  /6/

   7. Finally, petitioner contends (Pet. 28-29) that the evidence was
insufficient to sustain his conviction on Count 1 because it failed to
show that he engaged in the business of dealing in firearms for
profit.  That contention is meritless.  The evidence showed that
petitioner sold at least 15 firearms to Chaon in exchange for cash or
other items, such as collectible coins.  The evidence also showed that
petitioner attempted to sell additional firearms to Chaon on other
occasions, but Chaon declined to make the purchases because the price
was too high.  Pet. App. A3.  Based on that evidence, the jury could
certainly conclude that petitioner was in the business of selling
firearms for a profit.  /7/

                              CONCLUSION

   The petition for a writ of certiorari should be denied

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   JANUARY 1989

   /1/ At the time the offense in Count 7 was committed, 18 U.S.C.
App. (Supp. II) 1202(a), as amended by the Armed Career Criminal Act
of 1984, Pub. L. 98-473, Section 1802, 98 Stat. 2185 (1984), read in
pertinent part as follows:

   (a) Any person who --

         (1) has been convicted by a court of the United States or of
      a State or any political subdivision thereof of a felony * * *

                      * * * * *

      and who receives, possesses, or transports in commerce or
      affecting commerce, after the date of enactment of this Act, any
      firearms shall be fined not more than $10,000 or imprisoned for
      not more than two years, or both.  In the case of a person who
      receives, possesses, or transports in commerce or affecting
      commerce any firearm and who has three previous convictions by
      any court referred to in paragraph (1) of this subsection for
      robbery or burglary, or both, such person shall be fined not
      more than $25,000 and imprisoned not less than fifteen years,
      and notwithstanding any other provision of law, the court shall
      not suspend the sentence of, or grant a probationary sentence
      to, such person with respect to the conviction under this
      subsection, and such person shall not be eligible for parole
      with respect to the sentence imposed under this subsection.

   /2/ Petitioner's reliance on United States v. Headspeth, 852 F.2d
753 (4th Cir. 1988), is misplaced.  That case concerned the meaning of
the term "burglary" in 18 U.S.C. 924(e), which is the successor
provision to Section 1202(a)(1).  As part of a general consolidation
of the federal firearms laws in the Firearms Owners Protection Act of
1986, Pub. L. No. 99-308, Section 104(a)(4), 100 Stat. 456 (1986),
Congress repealed Section 1202 and recodified it, without change, as
Section 924(e).  Shortly thereafter, however, Congress enacted the
Career Criminal Amendments Act of 1986, Pub. L. No. 99-507, Title I,
Section 1402(a), 100 Stat. 3207-39 (1986), which substantially changed
Section 924(e) by authorizing an enhanced sentence whenever a
defendant has three previous convictions "for a violent felony or a
serious drug offense." That statute went on to define "violent felony"
to include "burglary" in Section 924(e)(2)(B)(i), but it did not carry
forward the definition of burglary from the repealed Section that the
common law definition of burglary should control under Section 924(e)
in the absence of a statutory definition.  Since petitioner was
convicted under the different provisions of the 1984 Act, which
included a specific definition of burglary, the ruling in Headspeth is
plainly inapposite here.

   /3/ The Fifth Circuit in United States v. Davis, 801 F.2d 754
(1986), is the only court of appeals to have ruled that Section
1202(a)(1) created a new offense that must be charged in the
indictment and proved at trial.  In contrast, the Third, Fourth,
Sixth, Eighth, Ninth, Tenth, and District of Columbia Circuits have
all concluded that Section 1202(a)(1) merely constituted a sentence
enhancement provision.  See United States v. Hawkins, 811 F.2d 210 (3d
Cir. 1987), cert. denied, No. 86-6847 (Oct. 5, 1987);  United States
v. Blannon, 836 F.2d 843 (4th Cir. 1988), cert. denied, No. 87-6549
(May 16, 1988);  United States v. Brewer, 853 F.2d 1319 (6th Cir.
1988);  United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir. 1988);
 United States v. Rush, 840 F.2d 574 (8th Cir. 1988) (en banc), cert.
denied, Nos. 87-6861 and 87-6988 (June 30, 1988);  United States v.
West, 826 F.2d 909 (9th Cir. 1987);  United States v. Gregg, 803 F.2d
568 (10th Cir. 1987), cert. denied, No. 86-6009 (Mar. 9, 1987);
United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987), cert. denied,
No. 87-5667 (Jan. 11, 1988).

   We note in any event that petitioner has failed to preserve this
claim for further review, since he stipulated before the district
court that the fact of the three convictions was not an element of the
offense but was rather a basis for enhancing his sentence if he were
convicted.  Pet. App. A8.

   /4/ The Fifth Circuit, which was the only court to hold that the
former Section 1202(a)(1) created a separate offense, has recognized
that the new statute is clearly an enhancement provision.  United
States v. Vidaure, No. 88-5515 (5th Cir. Dec. 6, 1988).

   /5/ Petitioner also contends in passing (Pet. 25-26) that the
evidence was insufficient to show that he possessed the .38 caliber
revolver and that the revolver had traveled in interstate commerce.
The court of appeals properly rejected (Pet. App. A12-A13) those
contentions and pointed out that the case upon which petitioner
relies, United States v. Ruffin, 490 F.2d 557 (8th Cir. 1974),
involved a different section of the Armed Career Criminal Act.

   In addition, petitioner contends (Pet. 26-27) that he was entitled
to a new trial because the district court improperly answered a
question from the jury during its deliberations.  The jury asked
whether it could convict based on circumstantial evidence alone.  The
district court then re-read its instruction on circumstantial
evidence.  The jury asked whether that charge meant that the court
answered the question in the affirmative, to which the court replied
that it did.  Pet. App. A12.  Petitioner argues that the court's
answer amounted to a suggestion that the judge believed the
circumstantial evidence in this case was enough to convict.  As the
court of appeals ruled (ibid.), that is not the natural reading of the
district court's answer.  Rather, the court was simply advising the
jury of the correct legal proposition that circumstantial evidence,
standing by itself, may be sufficient to support a conviction.

   /6/ Petitioner mistakenly relies on Ball v. United States, 470 U.S.
856 (1985) to support his argument.  In Ball, this Court merely
concluded that a defendant could not receive cumulative sentences for
possessing a firearm, in violation of Section 1202(a), and receiving a
firearm, in violation of Section 922.  Petitioner, however, was
convicted of violating Section 922 by engaging in the business of
dealing in firearms without a license;  he was not convicted simply of
receiving a firearm.

   /7/ Petitioner also appears to suggest that his conviction on Count
1 for engaging in the business of dealing in firearms cannot stand
because it is inconsistent with the jury's acquittal on Counts 2-6,
which charged him with unlawfully possessing five of the firearms that
he sold to Chaon.  The mere fact that the jury's verdict was arguably
inconsistent, however, provides no basis for overturning the jury's
finding of guilty on Count 1, as long as the evidence was sufficient
to sustain the conviction on that count.  See United States v. Powell,
469 U.S. 57 (1984).