## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3819

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Gerald Lee Gammage, * * Appellant. *

___________ Submitted: June 9, 2009 Filed: August 13, 2009 (Revised August 28, 2009)

___________ Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.

___________ ARNOLD, Circuit Judge. Gerald Gammage appeals from the sent ence of 180 months' imprisonment that the district court imposed after a jury found him guilty of knowingly possessing a firearm after having been convicted of a misdemeanor crime of domestic violence, see 18 U.S.C. § 922(g)(9). We reve rse and remand for resentencing.
Mr. Gammage maintains that the district court erred in conc luding that he had been convicted of burglary three times befo re his instant conviction and was therefore an armed career criminal subject to an enhanced sentence. See 18 U.S.C. § 924(e). He points out that at his sentencing hearing the government introduced copies of commitment orders signed by the circuit clerk of Jones County, Mississippi, that, the-2- government asserted, indicated that he ha d twice been convicted of burglary of a dwelling, but that the only evidence of the third burglary conviction was an indictment for burglary of a pawn shop.
For its part, the government contends that while it did not introduce a commitment order for the third conviction into evidence at th e sentencing hearing, there was in fact such an order (which it has appended to its brief on appeal); and it maintains that the district court had the order before it at a conference in chambers before the sentencing hearing and was ther efore aware of it. The government thus requests permission to supplement the recordwith a copy of this commitment order. But pursuant to Fed. R. App. P. 10(e), we directed the district court to certify to us what occurred in the chambers conference before the sentencing hearing, and the district court has responded that it had no record or recollection of any such conference and no recollection of any co mmitment order for the alleged third conviction. The district court's response fu rther stated that while it routinely met with counsel before sentencing hearings to dete rmine what issues might arise during the hearing, "these meetings are not on the r ecord, no substantive discussion is involved, no argument is offered, and no substantive decisions made." ( See Appendix.) We therefore have no occasion to allow the record to be ame nded, as there is no reason to believe that the record on appeal does not adequately reflect wh at occurred in the district court.
The government also points out that Mr. Gammage did not object to the part of the presentence investigation report that de scribed the facts that underlay his alleged third conviction, and argues that those f acts describe conduct that qualifies as a generic burglary and thus for the enhancement. See United States v. Reliford , 471 F.3d 913, 916-17 (8th Cir. 2006), cert. denied , 550 U.S. 938 (2007). But the infirmity in this argument is that while Mr. Gammage did not object to the facts laid out in this portion of the presentence investigation report, he did object to the fact of conviction itself, thus putting the government to its proof that there indeed was one. And it is the-3- proof that Mr. Gammage was convicted of th is third burglary that is missing from the record. As we have said, the government introduced only an indictment to prove up this third offense and, as jurors are often to ld in the very first instruction in a criminal case, "an indictment is simply an accusation. It is not evidence of anything." Eighth Circuit Manual of Model Jury Instructions: Criminal § 1.01 (2009 ed.).

We therefore conclude that the district court erred in determining that Mr. Gammage was an armed career criminaland we remand the case for resentencing. Because the government was clearly on no tice that it was required to prove up Mr. Gammage's convictions befo re he would be subject to the enhancement at issue, we direct the district court on remand to resentence Mr. Gammage based on the record already before it. See United States v. Poor Bear , 359 F.3d 1038, 1043-44 (8th Cir. 2004); United States v. Houston , 338 F.3d 876, 882 (8th Cir. 2003); United States v. Hudson , 129 F.3d 994, 995 (8th Cir. 1997) (per cu riam). There were no arcane legal principles involved in this case, and the district court committed no legal error that misled the government or deflected it from introducing its evidence. Cf. United States v. Dunlap , 452 F.3d 747, 749-50 (8th Cir. 2006). Mr. Gammage's counsel, moreover, not only objected generally to the insufficien cy of the government's proof of the third conviction, he even pointed out specifically that an indictment was not evidence of a conviction. As the D.C. Circuit succinctly put it in a similar situation, we see "no reason why [the government] should ge t a second bite at the apple." United States v. Leonzo , 50 F.3d 1086, 1088 (D.C. Cir. 1995). We made exactly the same point this last year in United States v. Otey , 259 Fed. Appx. 901, 902 (Jan. 11, 2008), when we observed that because "the Government ha d sufficient notice of [the defendant's] factual objection ... it should not be affo rded a second opportunity to present additional evidence on this issue."
Rules can, and certainly do, provide fo r new trials on the basis of newlydiscovered evidence in some kinds of cases, but not for the government in criminal cases. And besides, there is no newly-di scovered evidence here: The government had-4- the evidence but simply did not introduce it. Relief can also be had for certain kinds of mistakes by defense counsel in criminal cases through post-conviction remedies, but of course there is no similar reme dy open to the government. The law, from considerations of efficiency and fairness, does not generally favor do-overs, as various estoppel doctrines like res judicata and double jeopardy attest . We see no apparent reason to stray from the traditional pathin the present circumstances. The government, moreover, does not invoke a ny general legal principle that would authorize us to afford it a second chance to make its case, and given the present record, and the current state of applicab le common-law and statutory arrangements, we cannot discern one.
The government's motion to supplement th e record and the defendant's motion to supplement the record are denied.

Reversed and remanded.

______________________________-5- APPENDIX

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 08-3819 United States of America, Appellee

v. Gerald Lee Gammage, Appellant

______________________________________________________________________________
Appeal from U.S. District Court for the Southern District of Iowa - Des Moines (4:07-cr-00093-JEG-1)

_______ _______________________________________________________________________

ORDER Pursuant to F.R.A.P. Rule 10(e)(1), the cour t requests a certification from the district court as to events occurring in chambers before the sentencing hearing was convened in the instant case. In particular, the court wishes to be informed whether the district court at any time had before it and considered a commitment order from the Circuit Court of Jones County, Mississippi, attesting to the defendant’s conviction of a burglary offense in the circuit court’s January term of 1984. The court also wishes to be informed whether the parties’ attorneys were present at any in camera proceeding that occurred before defendant’s sentencing hearing, whether the defendant was present, and what argument, if any, on sentencing matters was heard at that time. The court requests that the district court provide a response as expeditiously as possible and direct it to the court’s clerk, Michael Gans, Esq. July 07, 2009-6- Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________ /s/ Michael E. Gans A true copy.

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

______________________________ __________________ /s/ Michael E. Gans