United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1300

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas

Jimmy Lee Stuckey, Jr., *

*

Appellant. *

___________

Submitted: May 9, 2000

Filed: August 9, 2000

___________

Before BOWMAN, LOKEN, and BYE, Circuit Judges.

___________

BYE, Circuit Judge.

Jimmy Lee Stuckey, Jr., appeals both his conviction for being a felon in

possession of a firearm, and the sentence he received. Stuckey challenges the

conviction by claiming the district court erred during jury deliberations when it gave

a supplemental instruction that stated a "person who has been convicted of a felony

may not knowingly possess a firearm at any time," even though the indictment had

charged possession "on or about" a date certain. Stuckey challenges the sentence by

claiming that four prior drug convictions stemming from a military court martial should
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not have been used to enhance his sentence as an armed career criminal. We affirm the

conviction, but reverse and remand for resentencing. 

BACKGROUND

Stuckey was charged in a two-count indictment, the first count of which charged

him with being a felon in possession of a firearm "on or about December 25, 1998."

The second count charged Stuckey with making a false statement to a gun dealer at the

time he purchased that firearm. He pleaded guilty to the false statement charge, but

went to trial on the possession charge. 

At trial, the jury learned that Stuckey, a resident of Memphis, Tennessee, was

delivering presents to his relatives in Arkansas on Christmas Day. He was driving over

ninety miles per hour down Interstate 40 when stopped by Arkansas state trooper Sam

Koons. Stuckey was driving a car owned by Sheila Gray, his girlfriend. 

Before Stuckey pulled over, Trooper Koons noticed him moving around in the

car, leaning over as if trying to hide something. When Koons approached the vehicle

to ask for license, registration, and proof of insurance, Stuckey reached into a duffle

bag on the passenger's seat to get his wallet. In the process, Trooper Koons observed

a gun clip in the duffle bag. Koons subsequently searched the vehicle and discovered

a handgun under the driver's seat. The gun clip from the duffle bag fit the handgun

found under the driver's seat. The other items in the duffle bag were men's clothes. 

Gray, the girlfriend, testified that the car, the gun, the duffle bag, and all the

contents of the duffle bag, belonged to her. Koons testified that, on the night of the

arrest, Gray came to the police station and was asked if she owned any guns. She told

Koons that she owned a long gun (gesturing to indicate the length of her gun), but that

she did not own a short gun. Gray denied this conversation at trial. 
1Stuckey was arrested December 25, 1998, the same date charged in the

indictment. 

-3-

Although Stuckey pleaded guilty to the false statement charge arising out of the

purchase of the firearm, the district court allowed evidence related to Stuckey's

purchase to prove his subsequent possession. Thus, the jury learned that the handgun

was traced to a sale made in February 1998 by Ray Abel, a federal firearms license

holder. Stuckey was the purchaser. 

During jury deliberations, the jury sent a note to the court asking: "On Element

Number 2, knowingly possessed a firearm, does this mean knowingly at any time or at

the time of his arrest?"1 The district court then gave the jury a supplemental instruction

indicating: "A person who has been convicted of a felony may not knowingly possess

a firearm at any time." Defense counsel objected to the instruction: "I would object to

the response that knowingly possessed a firearm pertained to any time because the

evidence as put on today, and in the indictment itself, it's on the date of arrest,

December 25, 1998 . . . [and] it should pertain to that date." The jury found Stuckey

guilty. 

At the time of sentencing, the court found that Stuckey was subject to an

enhanced sentence under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 as an armed career

criminal, based on four predicate "serious drug offenses." All four prior drug offenses

stemmed from the same general court martial in a military court on April 10, 1989,

under which Stuckey was found to have:

(a) distributed 4.52 grams of marijuana on August 26, 1988;

(b) distributed 66.24 grams of marijuana on September 16, 1988;

(c) possessed an additional 3.25 grams of marijuana with intent to distribute

on September 16, 1988; and

(d) distributed 2.086 grams of cocaine on September 14, 1988.

Each offense carried a maximum sentence of 15 years under military law.
2Absent the enhancement, the guideline range on the false statement charge

would also have been 51 to 63 months. 

3We acknowledge some misgivings about limiting Stuckey's claim of error solely

to a variance issue. Yet we feel obligated to restrain from fully addressing all the

potential issues due to the manner in which Stuckey raised the supplemental jury

instruction issue before us and in the district court.

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Application of the armed career criminal provisions substantially increased

Stuckey's sentencing range under the guidelines. Without the enhancement, the

guideline range would have been 51 to 63 months. With the enhancement, the

guideline range became 188 to 235 months. Stuckey was sentenced to 188 months in

prison on the possession charge, to be served concurrently with a sentence of 120

months on the false statement charge.2

DISCUSSION

I. The Conviction

The first issue we must decide is whether the supplemental instruction given by

the district court requires us to reverse the conviction and remand for retrial. Normally,

we review instructions given to the jury under an abuse of discretion standard. See,

e.g., United States v. Smith, 104 F.3d 145, 148 (8th Cir. 1997). But where the issue is

whether an instruction amounts to a "variance," the issue we ultimately decide to

address,3 a different standard of review applies. Whether a variance exists, and, if so,

whether that variance prejudiced Stuckey, are questions of law that we review de novo.

See, e.g., United States v. Portela, 167 F.3d 687, 700 (1st Cir. 1999); United States v.

Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). A variance that does not result in

actual prejudice to the defendant is harmless error, and does not require reversal of the

conviction. See United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986). 
4

Inferences could also fairly be drawn that Stuckey had possession of the firearm

at times in between the date of purchase and the date of arrest. 

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The supplemental instruction given in this case was not ideal. Although the

instruction was an accurate statement of the law, its technical accuracy can not be

viewed in a vacuum. Instead, the propriety of giving the instruction must be viewed in

relation to the specific context in which the request for supplemental instruction arose,

and in relation to the charging language of the indictment. 

The jury's request for additional instruction was, presumably, triggered by the

fact that the government introduced evidence of possession relating to periods of time

other than the date of arrest alleged in the indictment. Most notably, there was

evidence that Stuckey also possessed the firearm at the time of its purchase.4

Under these circumstances, the district court should have used an instruction

similar to the one used in United States v. Brody, 486 F.2d 291 (8th Cir. 1973). Brody

also involved a firearm possession charge where, during deliberations, the jury asked

a question about the timing of the defendant's possession: "Does Count One of the

Indictment mean at the time of the arrest or possession of the gun at any previous time

covered by the evidence at trial?" Brody, 486 F.2d at 292. The court responded:

Count One of the indictment in this case charges that the offense charged

therein was committed "on or about the 7th day of July, 1972." The proof

need not establish with certainty the exact date of the alleged offense. It

is sufficient if the evidence in the case establishes beyond a reasonable

doubt that the offense was committed on a date reasonably near the date

alleged. 

Id. 
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We approved the instruction, holding that the "on or about" charge in the

indictment could encompass possession at times other than the day of actual arrest.

See id. In the instant case, the district court neglected to give a Brody instruction. If

the court had given an instruction like the one used in Brody, then the jury could have

determined whether the evidence in this trial was sufficient to show that possession

occurred at a time "reasonably near" the date alleged in the indictment. The jury should

have had an opportunity to so determine. 

Deciding that a different instruction should have been given does not conclude

our inquiry, however. We must determine whether the supplemental instruction that

was in fact given requires reversal. In United States v. Ford, 872 F.2d 1231 (6th Cir.

1989), the Sixth Circuit addressed that question as applied to a supplemental instruction

very similar to the one given here. Ford also involved a firearm possession charge

where the evidence demonstrated possession at times other than the date of arrest

alleged in the indictment. The first period of possession pertained to the purchase of

the gun on November 2, 1986. A second period of possession was on August 8, 1987,

when Ford was alleged to have shot himself in the hand with the firearm. A third

period of possession was at the time of Ford's arrest during a domestic altercation on

September 28, 1987. This third date was the "on or about" date charged in the

indictment. See Ford, 872 F.2d at 1232-34. 

In its initial instructions, the Ford trial court gave an instruction similar to that

used in Brody: proof of possession at a time "reasonably near" the date alleged in the

indictment was sufficed to convict. See id. at 1234. When the jury asked for further

instruction as to what constituted a date "reasonably near" the date charged in the

indictment, the court gave a supplemental instruction which indicated that a person may

not possess a firearm at any time after being convicted of a felony. The court further

instructed that proof of Ford's possession could encompass any time between the date

of purchase and the date of arrest. See id. 
-7-

The Sixth Circuit considered whether the supplemental instruction was (1) a

response to a variance in the evidence, not amounting to reversible error unless the

defendant showed prejudice; or (2) a constructive amendment of the indictment,

amounting to reversible error per se because it infringed upon the Fifth Amendment's

guarantee that no person shall be held to answer for a crime not presented to, and

indicted by, a grand jury. See id. at 1235. The court concluded that the instruction was

a constructive amendment, because it essentially altered the elements of the offense set

forth in the indictment, allowing the jury to convict Ford of a crime other than the one

charged in the indictment. See id. at 1236. 

We have frequently discussed the difference between a variance in the evidence

and a constructive amendment of the indictment, most recently in United States v.

Novak, ___F.3d ___, ___, 2000 WL 781077 at *5 (8th Cir. June 20, 2000), and United

States v. Emery, 186 F.3d 921, 927-28 (8th Cir. 1999). The basic difference between

a constructive amendment and a variance is this: a constructive amendment changes the

charge, while the evidence remains the same; a variance changes the evidence, while

the charge remains the same. See Novak, 2000 WL 781077 at *5; Emery, 186 F.3d at

927-28. 

The difference between the two concepts is significant. A constructive

amendment is reversible error per se, but a variance is subject to the harmless error

rule. That difference stems from the underlying constitutional rights affected. A

constructive amendment directly violates the Fifth Amendment right not to "be held to

answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury." U.S. Const. amend. V. The Supreme Court long ago

recognized the damaging effect of modifications to a grand jury charge: 

 If it lies within the province of a court to change the charging part of an

indictment to suit its own notions of what it ought to have been, or what

the grand jury would probably have made it if their attention had been
5A constructive amendment could also affect a person's Sixth Amendment notice

rights, but its direct violation of the Fifth Amendment grand jury right obviates the need

to perform a prejudice analysis. It bears mention that when the right to a grand jury is

not at issue (such as in the habeas context under 28 U.S.C. § 2254 where the Fifth

Amendment grand jury right does not apply to the states), a constructive amendment

would not always result in reversible error. A prejudice analysis would have to be

performed to determine whether a defendant's Fourteenth Amendment due process or

notice rights were materially affected. See, e.g., Lucas v. Odea, 179 F.3d 412, 417 (6th

Cir. 1999) (concluding that a constructive amendment prejudiced a defendant's

Fourteenth Amendment right to notice of the charges against him). 

-8-

called to suggested changes, the great importance which the common law

attaches to an indictment by a grand jury, as a prerequisite to a prisoner's

trial for a crime, and without which the Constitution says "no person shall

be held to answer," may be frittered away until its value it almost

destroyed. 

Ex Parte Bain, 121 U.S. 1, 10 (1887). 

Conversely, a variance in the evidence affects the defendant's right to adequate

notice, that is, the Sixth Amendment right "to be informed of the nature and cause of

the accusation." U.S. Const. amend. VI. The charging document does not change,

only the evidence against which the defendant expected to defend. As a result, a

variance does not require reversal per se, because a court must still examine whether

or not the variance prejudiced the defendant's right to notice. Absent prejudice, the

variance is harmless error.5 

The distinction between a constructive amendment and a variance is clear in

theory, but often blurred in application. This case presents a good example. The

district court's supplemental instruction could be viewed as a change in the charge

itself, thereby allowing the jury to convict Stuckey of an offense (possession of the

firearm at the time of purchase) other than that charged in the indictment (possession
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at the time of arrest). On the other hand, the supplemental instruction could be viewed

as merely a response to a change in the evidence, since the prosecution offered

evidence of possession on dates other than those charged in the indictment. 

Normally, we would decide whether to examine this supplemental instruction as

a constructive amendment, or as a variance. In this case, however, we feel constrained

to limit our analysis to the extent that the issue was raised in the trial court and on

appeal, for "[i]t is not this court's job to research the law to support an appellant's

argument." Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 642 (8th Cir. 1993) (quoting

United States v. Papia, 910 F.2d 1357, 1363 (7th Cir. 1990)). 

At trial, defense counsel objected to the supplemental instruction by stating, "I

would object to the response that knowingly possessed a firearm pertained to any time

because the evidence as put on today, and in the indictment itself, it's on the date of

arrest, December 25, 1998 . . . [and] it should pertain to that date." That argument

perhaps sufficed to preserve the objection for review on appeal without subjecting it

to the plain error standard of review. See Fed. R. Crim. P. 30 (requiring party to state

"distinctly the matter to which that party objects and the grounds of the objection"); see

also Cross v. Cleaver, 142 F.3d 1059, 1068 (8th Cir. 1998) (holding that objection

must bring into focus the precise nature of the alleged error and state distinctly the

grounds for objection; if not, issue is reviewed on appeal for plain error only). But the

objection did not precisely identify the error as a violation of Stuckey's Fifth

Amendment rights.

Stuckey challenges the propriety of the supplemental instruction on appeal, but

only in the most perfunctory manner. Stuckey does not argue that the supplemental

instruction amounted to a constructive amendment of the indictment. Nor does he

identify the instruction as an infringement of his constitutional rights under the Fifth or

Sixth Amendments. Indeed, Stuckey neglected to develop any constitutional arguments

on appeal. Cf. Voss v. Shalala, 32 F.3d 1269, 1272 (8th Cir. 1994) (declining to
-10-

address a constitutional challenge to a statute where the constitutional argument was

undeveloped on appeal).

Stuckey's opening brief cites no legal authority in its discussion of the

supplemental instruction. Stuckey merely concludes that the instruction was "clearly

an error of law." The only legal authority referred to by Stuckey, in his reply brief,

cites the general principle that supplemental instructions must be "accurate, clear,

neutral, and non-prejudicial." United States v. Suppenbach, 1 F.3d 679, 683 (8th Cir.

1993). 

We have encountered some difficulty identifying the legal principle or doctrinal

framework upon which Stuckey relies. He has asked us simply to determine whether

the supplemental instruction was "non-prejudicial." 

We conclude that Stuckey's request cannot be interpreted as raising a

constructive amendment issue, because the resolution of that issue would not entail a

"prejudice" analysis. As explained above, a constructive amendment violates a

defendant's Fifth Amendment grand jury right per se, that is, irrespective of prejudice.

But a prejudice analysis is required under the variance doctrine. The presence or

absence of prejudice in an instruction implicates a Sixth Amendment concern —

whether the government properly informed a defendant of the "nature and cause of the

accusation." U.S. Const. amend. VI. We therefore conclude that Stuckey's challenge

rests solely upon the variance doctrine. 

Having reached this point in our analysis, we conclude that any variance in this

case did not result in material prejudice. Time is not a material element of a criminal

offense unless made so by the statute creating the offense. See Ledbetter v. United

States, 170 U.S. 606, 612 (1898). The date of the offense is not a material element of

a firearm possession charge under 18 U.S.C. § 922(g)(1). 
-11-

When the date of the offense is not an element of the charge, we have held on

many occasions that a variance between the indictment date and the proof at trial is not

fatal so long as the acts charged were committed within the statute of limitations period,

and prior to the return date of the indictment. See United States v. Summers, 137 F.3d

597, 601 (8th Cir. 1998); United States v. Prescott, 33 F.3d 922, 923-24 (8th Cir.

1994); United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991); United States

v. Collins, 690 F.2d 670, 673 (8th Cir. 1982); United States v. Joyner, 539 F.2d 1162,

1164-65 (8th Cir. 1976); Jacobs v. United States, 395 F.2d 469, 474 (8th Cir. 1968);

see also United States v. Reece, 547 F.2d 432, 435 (8th Cir. 1977) (holding that a oneyear variance between indictment and proof at trial was harmless and did not affect

defendant's substantial rights, where defendant did not argue that he was prevented

from presenting his defense properly, unfairly taken by surprise, or exposed to double

jeopardy). 

Similarly, in United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981), the Tenth

Circuit addressed a possession charge under 18 U.S.C. § 472 (possession of counterfeit

obligations). The court held that as long as the proof relating to the time of possession

fell within the statute of limitations periods, any variance between the date alleged in

the indictment and the proof at trial could be disregarded. See Nunez, 668 F.2d at

1127. 

Variances between the date alleged in the indictment and the proof at trial have

been identified as material only when alibi is a defense. See, e.g., United States v.

Goodrich, 493 F.2d 390, 393-94 (9th Cir. 1974) (discussing cases that found reversible

error where a trial court instructed the jury that the offense could occur on dates other

than those charged in the indictment even though alibi was raised as a defense); see

also Nelson v. Solem, 795 F.2d 636, 637 (8th Cir. 1986) (discussing the propriety of

giving an "on or about" instruction when alibi is a defense). 
6Section 924(e) provides, in pertinent part, as follows:

(e)(1) In the case of a person who violates section 922(g) . . . and has

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Finally, the evidence that Stuckey possessed the firearm on December 25, 1998,

the date alleged in the indictment, was very strong. Cf. United States v. Snider, 720

F.2d 985, 990 (8th Cir. 1983) (holding that in some cases evidence of a defendant's

guilt on a possession charge is so strong that conviction should be affirmed despite a

prejudicial variance). Prior to being stopped, Stuckey was observed leaning over as if

trying to hide something in the car. After being stopped, Stuckey reached into a duffle

bag on the seat next to him to retrieve his own wallet, strongly suggesting that the

duffle bag was his. The duffle bag also contained men's, not women's, clothing. The

gun clip, also in the duffle bag, fit the handgun found underneath the driver's seat, the

same handgun Stuckey himself had purchased just a few months earlier. Although

Stuckey's girlfriend, Gray, claimed at trial that the handgun, the duffle bag, and all the

contents of the duffle bag belonged to her, Trooper Koons also testified that on the

night of the arrest Gray denied owning any "short" guns. 

Time was not a material element of this crime, the evidence of possession was

within the statute of limitations period, alibi was not an issue, and the evidence in

support of the conviction was strong. We therefore conclude that any variance that

existed as a result of the evidence proffered at trial, or that was created by the district

court's supplemental instruction, did not materially prejudice the appellant. We affirm

the conviction. 

II. The Sentence

The next issue is whether Stuckey's four prior drug convictions for violating

Article 112a of the Uniform Code of Military Justice, 10 U.S.C. § 912a, constitute

"serious drug offenses" under 18 U.S.C. § 924(e).6 We review this matter of statutory
three previous convictions by any court referred to in section 922(g)(1) .

. . for a violent felony or a serious drug offense, or both, committed on

occasions different from one another, such person shall be . . . imprisoned

not less than fifteen years . . . .

(2) As used in this subsection - 

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

(i) an offense under the Controlled Substances Act (21

U.S.C. 801 et seq.), the Controlled Substances Import and

Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug

Law Enforcement Act (46 U.S.C. App. 1901 et seq.), for

which a maximum term of imprisonment of ten years or

more is prescribed by law; or

(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.

18 U.S.C. § 924 (e).

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interpretation de novo. See United States v. Williams, 136 F.3d 547, 550 (8th Cir.

1998).

The district court enhanced Stuckey's sentence under the armed career criminal

provisions after concluding that his four prior military drug conviction were "serious

drug offenses." However, Congress did not include a reference to military law within

§ 924(e)(2)(A)'s definition of "serious drug offense." Subparagraph (e)(2)(A)(i) refers

to three specific federal acts — the Controlled Substance Act, the Controlled

Substances Import and Export Act, and the Maritime Drug Law Enforcement Act —
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but not the Uniform Code of Military Justice. Under the plain and unambiguous

language of the statute, the district court erred in considering Stuckey's military drug

convictions for enhancement purposes. 

The government cites United States v. Martinez, 122 F.3d 421 (7th Cir. 1997),

for the proposition that a military drug conviction should constitute a "serious drug

offense" for enhancement purposes. The issues addressed in Martinez were (1)

whether the reference to convictions in "any court" at paragraph (e)(1) of the statute

included convictions in military court, and (2) whether a military conviction for

housebreaking constituted a "violent felony" under subparagraph (e)(2)(B) of the

statute. See Martinez, 122 F.3d at 423-24. The Seventh Circuit held that military court

convictions could be used as predicate offenses for enhancement purposes, because the

statute's broad reference to "any court" included military courts. The Seventh Circuit

also held that a "housebreaking" offense under military law fit the generic definition for

burglary, and thus constituted a "violent felony" under subparagraph (e)(2)(B) of the

statute. See id. 

Relying on Martinez, the government argues it is absurd that military convictions

count as predicate offenses under paragraph (e)(1), but that a military drug offense can

never constitute a "serious drug offense" under subparagraph (e)(2)(A). The

government also suggests it is absurd that certain military convictions count as "violent

felonies" under subparagraph (e)(2)(B), but that a military drug offense can never

constitute a "serious drug offense" under subparagraph (e)(2)(A). The government

urges us not to give the statute a "literal" interpretation, and to ignore the fact that the

statute's definition of "serious drug offense" does not refer to the Uniform Code of

Military Justice. 

We are unpersuaded by that argument, and cannot ignore our obligation to read

the statute literally. Martinez did not address what offenses may constitute "serious

drug offenses" under subparagraph (e)(2)(A). Furthermore, for a conviction to count
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as a predicate offense under paragraph (e)(1), it must be both a conviction by "any

court" referred to therein and either a "serious drug offense" under (e)(2)(A) or a

"violent felony" under (e)(2)(B). Thus, the mere fact that we are dealing with military

drug convictions in this case only gets the government half-way home; we must still

determine whether or not the convictions are "serious drug offenses" under (e)(2)(A).

Finally, we find no absurdity in the fact that Congress defined "violent felony" in a

manner that allowed the inclusion of military convictions, while defining "serious drug

offense" in a manner that did not. Any claimed inconsistencies in the statute should be

the subject of legislative, not judicial, action. 

Congress defined two general types of predicate offenses that would trigger the

enhancement provisions of § 924(e): serious drug offenses and violent felonies. But

Congress adopted different structural frameworks for defining those predicate offenses.

The term "violent felony" is initially defined as "any crime punishable by

imprisonment for a term exceeding one year." 18 U.S.C. § 924(e)(2)(B). The statute

then limits that broad definition to two categories: (1) those crimes that have "as an

element the use, attempted use, or threatened use of physical force against the person

of another"; and (2) those crimes that are "burglary, arson, or extortion, involve[] use

of explosives, or otherwise involve[] conduct that presents a serious potential risk of

physical injury to another." Id. at (e)(2)(B)(i) & (ii). This has been referred to as a

"categorical approach" to the definition of "violent felony." See United States v.

Taylor, 495 U.S. 575, 588 (1990).

Instead of using a "categorical approach" to define "serious drug offense,"

Congress used what we will refer to as a "listing approach." Congress did not initially

define "serious drug offense" in a broad manner, as it did with "violent felony."

Instead, from the outset, Congress defined the term more precisely by specifically

listing the federal provisions under which a serious drug offense might fall, see 18
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U.S.C. § 924(e)(2)(A)(i), and then added to the list certain offenses under State law.

See id. at § 924(e)(2)(A)(ii). The Uniform Code of Military Justice, 10 U.S.C. §§ 801-

946, is conspicuously absent from the specifically enumerated statutes. 

Under these circumstances, Congressional intent to exclude from the

enhancement provisions any drug offenses under the Uniform Code of Military Justice

is inferred. Under the principle of inclusio unius est exclusio alterius, the fact that

Congress listed certain statutes is an indication that it intended to exclude unlisted

statutes. See United States v. Darden, 70 F.3d 1507, 1524-25 (8th Cir. 1995) (holding

that where Congress specifically listed a number of drug-related offenses that constitute

predicate acts for purpose of the RICO statute, Congress meant that offenses not

specifically listed would not constitute predicate acts). 

Congress knows how to use more inclusive language for sentence enhancement

purposes when it so chooses. For example, prior to amendment in 1994, two sentence

enhancement provisions for repeat drug offenders, 21 U.S.C. §§ 960(b)(2) and 962(b),

broadly included all drug-related felony under any federal, state, or foreign law as a

prior offense for enhancement purposes. 

Section 960(b)(2), as then written, provided: 

If any person commits such a violation after one or more prior convictions

for an offense punishable under this paragraph, or for a felony under any

other provision of this subchapter or subchapter II of this chapter or other

law of a State, the United States, or a foreign country relating to narcotic

drugs . . . such person shall be sentenced to a term of imprisonment of not

less than 10 years and not more than life imprisonment. 

21 U.S.C. §§ 960(b)(2) (1988), amended by Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, §§ 90105(b), 108 Stat. 1796, 1987-88

(1994) (recodified at 21 U.S.C. §§ 960(b)(2) (1994)) (emphasis added).
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Likewise, section 962, as then written, provided:

(a) Any persons convicted of any offense under this subchapter is, if the

offense is a second or subsequent offense, punishable by a term of

imprisonment twice that other authorized . . .

(b) For purposes of this section, a person shall be considered convicted

of a second or subsequent offense if, prior to commission of such offense,

one or more prior convictions of him for a felony under any provision of

this subchapter or subchapter I of this chapter or other law of a State, the

United States, or a foreign country relating to narcotic drugs.

21 U.S.C. §§ 962(b) (1988), amended by Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, §§ 90105(b), 108 Stat. 1796, 1988 (1994)

(recodified at 21 U.S.C. §§ 962(b) (1994)) (emphasis added). 

A military drug conviction would fall under that broader definition, because the

Uniform Code of Military Justice is an "other law of . . . the United States." However,

military drug convictions are not included within the more precise definition used by

Congress at § 924(e)(2)(A)(i) & (ii). 

 

In United States v. Tremble, 933 F.2d 925 (11th Cir. 1991), the Eleventh Circuit

addressed the fact that the prior versions of 21 U.S.C. §§ 960 and 962 used moreencompassing language than the statute at issue here, specifically referring to §

924(e)(2)(A)(ii) to illustrate that Congress knew how to use more precise, limiting

language when it wanted:

[T]he existence of these other sentence-enhancement provisions [18

U.S.C. § 924(e)(2)(A)(i) & (ii) and U.S.S.G. § 4B1.2] requiring more

than simple possession suggests that at the time Congress enacted

sections 960(b)(2) and 962(b), that legislative body knew how to limit the
7For example, Stuckey's court martial involved relatively small amounts of

marijuana (4.52 grams, 66.24 grams, and 3.25 grams). Even if a charge under the

Controlled Substances Act involved that total amount (74.01grams), it would not

trigger § 924(e)'s enhancement provisions; indeed, it would take in excess of 675 times

as much marijuana to subject someone to a sentence greater than ten years. 

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types of prior convictions available as predicates for sentence

enhancement by using more precise definitions.

Tremble, 933 F.2d at 929-30 (emphasis added). 

Congress may have had good reason for not including military drug convictions

on § 924(e)'s "serious drug offense" list. The maximum penalty a soldier might receive

for a drug offense in a general court martial is disproportionate to the maximum penalty

a civilian might receive for the same conduct. For example, possession of marijuana

with intent to distribute, in any amount (no matter how small) is subject to fifteen years

confinement in a general court martial. See Punitive Articles ¶ 37(e)(2)(A), Manual

for Courts-Martial United States 1984 (1994 ed.). In federal civilian cases, however,

possession of marijuana with intent to distribute, in an amount up to 50 kilograms, is

only subject to a maximum term of five years imprisonment. See 21 U.S.C. §

841(b)(1)(D). 

Congress intended that only "serious drug offenses" (those involving drug

quantities large enough to trigger a maximum sentence of ten years or more) would be

used for enhancement purposes under § 924(e). Military law is inconsistent with that

intent, since military charges involving small amounts of drugs can still be treated very

seriously.7
8Having concluded that the language of the statute is plain and unambiguous, we

need not consider whether the rule of lenity would also require the sentence to be

reversed. 

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The district court erred by using Stuckey's military drug convictions for

enhancement purposes.8 Therefore, we affirm the conviction, but remand for

resentencing consistent with this opinion. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.