1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-21-1999

USA v. Sanders

Precedential or Non-Precedential:

Docket 98-7273

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"USA v. Sanders" (1999). 1999 Decisions. Paper 16.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/16
Filed January 21, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7273 

UNITED STATES OF AMERICA 

v. 

CYRUS R. SANDERS 

 Appellant 

Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Cr. No. 4: CR-96-0023/01) 

District Judge: Honorable James F. McClure, Jr. 

Argued November 17, 1998 

Before: BECKER, Chief Judge, GREENBERG, 

Circuit Judge, and McLAUGHLIN, District Judge* 

(Filed January 21, 1999) 

 KYLE W. RUDE, ESQUIRE 

 (ARGUED) 

 330 Pine Street 

 P.O. Box 3033 

 Williamsport, PA 17701 

Counsel for Appellant 

_________________________________________________________________ 

* Honorable Sean J. McLaughlin, United States District Judge for the 

Western District of Pennsylvania, sitting by designation. 
 DAVID M. BARASCH, ESQUIRE 

 United States Attorney 

 THEODORE B. SMITH, III, ESQUIRE 

 (ARGUED) 

 Assistant United States Attorney 

 DENNIS C. PFANNENSCHMIDT, 

 ESQUIRE 

 Assistant United States Attorney 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Counsel for Appellee 

OPINION OF THE COURT 

McLAUGHLIN, District Judge. 

Prior to its amendment effective September 13, 1994, 18 

U.S.C. S922(j) made it unlawful "for any person to ... sell[ ] 

or dispose of any stolen firearm ... which has been shipped 

or transported in [interstate commerce], knowing or having 

reasonable cause to believe that the firearm ... was stolen." 

18 U.S.C.A. S922(j) (West 1976) and Historical and 

Statutory Notes to 1990 Amendment (West Supp. 1998). 

Appellant Cyrus Sanders, Jr. was convicted in the United 

States District Court for the Middle District of Pennsylvania 

for violations of this provision upon entering a plea of guilty 

to charges of trafficking and conspiring to traffic in stolen 

firearms. It is undisputed that the transactions for which 

Sanders was convicted involved the sale and disposal of 

firearms that had entered the stream of interstate 

commerce prior to their theft, but not thereafter. 

Sanders now appeals the District Court's denial of his 

motion to set aside, correct, or vacate his sentence under 

28 U.S.C. S2255. Appellant claims that his counsel was 

ineffective in advising him to plead guilty to the trafficking 

charges inasmuch as the applicable version of S922(j) did 

not prohibit his particular conduct. We are thus called 

upon to determine whether S922(j), prior to its amendment 

in 1994, was intended to apply to transactions in stolen 

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firearms where the weapons moved in interstate commerce 

only prior to being stolen. We conclude that it was. 

Accordingly, we affirm the District Court's order. 

I. BACKGROUND 

On January 24, 1996, a federal grand jury in 

Pennsylvania returned a four-count indictment against 

Sanders charging him with conspiracy to possess afirearm 

as a convicted felon and to traffic in stolenfirearms [Count 

I], possession of a firearm by a convicted felon [Count II], 

trafficking in stolen firearms in violation of 18 U.S.C. 

S922(j) [Count III], and retaliating against a witness [Count 

IV]. The government alleged that, between September 1990 

and April 1994, Sanders conspired with two other 

individuals to burglarize several residences in remote 

locations. Once inside the residences, Sanders and his 

cohorts would steal items with potential resale value, 

including firearms. Other firearms were obtained by

providing false information to legitimate gun dealers. In all, 

a total of forty-four guns ultimately were attributed to 

Sanders. These firearms were sold to private individuals 

and legitimate dealers, often at gun shows. All of the 

firearms at issue were disposed of in Pennsylvania and 

never entered interstate commerce after Sanders came into 

possession of them. 

The scheme finally ended after one of Sanders's fellow 

conspirators was arrested and began cooperating with law 

enforcement officials. Following his own indictment, 

Sanders agreed to plead guilty to the charges of trafficking 

and conspiring to traffic in stolen firearms on the advice of 

his attorney. In exchange for his plea, the remaining 

charges against him were dismissed. The District Court 

subsequently sentenced Sanders to a seventy-month term 

of incarceration. 

On January 14, 1998 Sanders filed a motion to set aside, 

correct, or vacate his sentence pursuant to 28 U.S.C. 

S2255. Sanders claims that he committed no violation of 

the law with respect to the trafficking charges set forth in 

Counts I and III and, therefore, his attorney was ineffective 

in advising him to plead guilty to those charges. More 

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specifically, Sanders contends that the version of 18 U.S.C. 

S922(j) in effect at the time of his conduct required that the 

firearms which are the subject of the trafficking offense 

enter interstate commerce as stolen firearms, i.e., after 

being stolen. Sanders further claims that he was prejudiced 

by his counsel's ineffectiveness. He theorizes that, if he had 

been able to successfully challenge the trafficking charges 

under Counts I and III, he might have had an additional 

"bargaining chip" with which to negotiate a better plea offer. 

II. JURISDICTION AND STANDARD OF REVIEW 

We have jurisdiction over the instant appeal pursuant to 

28 U.S.C. S2255 and S1291. United States v. Cleary, 46 

F.3d 307, 309 (3d Cir. 1995). Because our disposition of 

this appeal ultimately turns on an interpretation of 

statutory law, we apply a plenary standard of review. See 

Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998) (legal 

component of an ineffective assistance of counsel claim in 

the habeas context is subject to plenary review) (addressing 

claim under 28 U.S.C. S2254). 

III. DISCUSSION 

A. 

Initially, we must address the government's argument 

that Sanders has procedurally defaulted his present claim 

by failing to raise it either in the District Court or on direct 

appeal. "Where a defendant has procedurally defaulted a 

claim by failing to raise it on direct review, the claim may 

be raised in habeas only if the defendant can first

demonstrate either `cause' and `actual prejudice,' ... or that 

he is `actually innocent.' " Bousely v. United States, ___ U.S. 

___, ___, 118 S. Ct. 1604, 1611 (1998) (internal citations 

omitted). We will limit our inquiry, as the parties have, to 

the issue of whether Sanders has shown "cause" and 

"actual prejudice" for his procedural default.1 

_________________________________________________________________ 

1. In light of our disposition of this appeal, Sanders would be unable in 

any event to establish his "actual innocence" with respect to the S922(j) 

charges. 

 4 
Sanders contends that he can establish "cause" by virtue 

of his counsel's ineffectiveness in advising him to plead 

guilty to the trafficking and conspiracy charges under 

Counts I and III of the indictment. A showing of 

ineffectiveness of counsel which rises to the level of a 

constitutional deprivation can indeed constitute the type of 

prejudice that will excuse procedural default. See Murray v. 

Carrier, 477 U.S. 478, 488 (1986); Sistrunk v. Vaughn, 96 

F.3d 666, 675 (3d Cir. 1996) (state prisoner habeas claim); 

United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993) 

(recognizing principle but declining to consider it on 

appeal). Accord United States v. Guerra, 94 F.3d 989, 993- 

94 (5th Cir. 1996); United States v. Cook, 45 F.3d 388, 392 

(10th Cir. 1995). To prevail on such a claim, however, a 

defendant must show both that counsel's performance fell 

below an objective standard of reasonableness under

prevailing professional norms and that counsel's 

deficiencies prejudiced him. See Strickland v. Washington, 

466 U.S. 668, 687 (1984); Sistrunk, 96 F.3d at 670.

The district judge rejected Sanders's ineffective assistance 

of counsel claim based on a two-part analysis. First, the 

judge observed that the government had acquired 

overwhelming evidence of Sanders's guilt. He therefore 

considered it reasonable for defense counsel to presume 

that Sanders would ultimately be convicted by a jury. The 

district judge then engaged in a lengthy and detailed 

analysis of the potential ramifications of Sanders's plea 

agreement for purposes of sentencing. He essentially 

predicted that Sanders benefitted from his plea agreement 

because he faced less potential jail time than he might 

otherwise have faced if convicted on the felon-in-possession 

charge under Count II of the Indictment. In light of these 

circumstances, the judge found that defense counsel acted 

reasonably in not moving to dismiss the trafficking charge 

and instead advising Sanders to plead guilty to that charge 

and the related conspiracy charge. 

On appeal, Sanders argues that, regardless of the District 

Court's ex post calculation of his supposed sentence on 

Counts I, II, and IV, he would have been in a better plea 

bargaining position to receive a shorter sentence if Count III 

and part of Count I had been dismissed. However, we need 

 5 
not reach this issue. Because we conclude that Sanders did 

in fact engage in prohibited conduct under Counts I and III 

of the indictment, it necessarily follows that Sanders's 

counsel was not ineffective in advising him to plead guilty 

to those charges rather than attempting to have them 

dismissed. It further follows that Sanders's S2255 claim 

would inevitably fail on the merits, as he can demonstrate 

no legitimate basis for withdrawal of his guilty plea or for 

vacating his sentence. We turn, then, to our examination of 

the operative statutory provision. 

B. 

It is undisputed that the conduct for which Sanders was 

charged occurred between September 1990 and April 1994. 

The parties therefore agree that, for purposes of this case, 

we must apply 18 U.S.C. S922(j) as it existed following its 

amendment in 1990 and prior to its amendment effective 

September 13, 1994. See 18 U.S.C.A. S922(j) (West 1976) 

and Historical and Statutory Notes to S922, 1990 

Amendment (West Supp. 1998). This version of S922(j) 

reads as follows: 

 It shall be unlawful for any person to receive, conceal, 

 store, barter, sell, or dispose of any stolen firearm or 

 stolen ammunition, or pledge or accept as security for 

 a loan any stolen firearm or stolen ammunition, which 

 is moving as, which is a part of, which constitutes, or 

 which has been shipped or transported in, interstate or 

 foreign commerce, knowing or having reasonable cause 

 to believe that the firearm or ammunition was stolen. 

Id. 

Sanders interprets the foregoing language to mean that 

the subject firearm must have traveled in interstate 

commerce as a stolen firearm -- i.e., the theft must have 

occurred prior to the stolen firearm's movement in 

interstate commerce. The government interprets this same 

language to mean only that the firearm which is the subject 

of the trafficking offense must have passed in interstate 

commerce at some time, whether before or after it was 

stolen. The significance of these differing interpretations is 

clear. Under the first interpretation, Sanders did not 

 6 
commit a violation of S922(j) because the firearms of which 

he disposed never passed through interstate commerce 

after he stole them. Under the government's interpretation, 

Sanders did in fact commit a violation of S922(j) and, 

therefore, his counsel could not have been ineffective in 

failing to have those charges dismissed. 

In ascertaining the meaning of a statutory provision, we 

are instructed to "look not only to the particular statutory 

language, but to the design of the statute as a whole and 

to its object and policy." Crandon v. United States, 494 U.S. 

152, 158 (1990) (citations omitted). See also McElroy v. 

United States, 455 U.S. 642, 658 (1982) (Court looks to 

statutory language and legislative history in determining 

Congress's intent). If a "reasonable doubt persists about a 

statute's intended scope even after resort to `the language 

and structure, legislative history, and motivating policies' of 

the statute," Moskal v. United States, 498 U.S. 103, 108 

(1990) (emphasis in original), then the rule of lenity applies 

and the statute is to be narrowly construed. Id. (citations 

omitted); Crandon, 494 U.S. at 158. 

On its face, S922(j) appears to be susceptible to two 

alternative interpretations. On the one hand, it can be 

argued that the phrase "which has been shipped or 

transported in [interstate commerce]" modifies only the 

word "firearm" and that the term "stolen firearm" merely 

indicates the status of the firearm at the time of the 

proscribed transaction. This is the view adopted by the 

government. The result of this interpretation is that an 

offense is committed when a stolen firearm is sold, disposed 

of, etc. by one having reason to know that it was stolen, as 

long as the firearm passed through interstate commerce at 

some time, whether before or after its theft. On the other 

hand, Sanders urges that the phrase "which has been

shipped or transported in [interstate commerce]" modifies 

the phrase "stolen firearm," such that thefirearm must 

have moved through interstate commerce as a stolen 

firearm. We view each of these proposed interpretations as 

facially plausible. 

If there is any ambiguity in the language of S922(j), 

however, we think it is resolved by reference to the 

 7 
legislative history. It is instructive to note the prior version 

of S922(j) which, until its amendment in 1990, stated: 

 It shall be unlawful for any person to receive, conceal, 

 store, barter, sell, or dispose of any stolen firearm or 

 stolen ammunition, or pledge or accept as security for 

 a loan any stolen firearm or stolen ammunition, which 

 is moving as, which is a part of, or which constitutes, 

 interstate or foreign commerce, knowing or having 

 reasonable cause to believe that the firearm or 

 ammunition was stolen. 

Federal courts applying this provision had interpreted it as 

requiring two elements: first, the firearm's movement 

through interstate commerce had to be on-going at the time 

of the underlying trafficking offense, see United States v. 

Jones, 564 F.2d 1315, 1316 (9th Cir. 1977), United States 

v. Ruffin, 490 F.2d 557, 560-61 (8th Cir. 1974); and 

second, the firearm had to be stolen at the time of its 

movement through interstate commerce. See United States 

v. West, 562 F.2d 375, 377-78 (6th Cir. 1977), cert. denied, 

435 U.S. 922 (1978). 

In 1990 Congress amended S922(j) so as to include 

within its scope firearms "which ha[ve] been shipped or 

transported in [interstate commerce]." Pub.L. 101-647 

S2202(a). It is clear from the legislative history that this 

amendment was intended to expand the jurisdiction of 

federal courts by broadening the scope of the interstate 

commerce nexus. In addressing the amendment before the 

House Judiciary Subcommittee on Crime, Assistant 

Attorney General Edward S. G. Dennis observed that the 

change in 922(j) "would expand federal jurisdiction to 

permit federal prosecution for trafficking infirearms which 

have been stolen or have had the serial number removed or 

altered and which have moved in interstate commerce at 

any time." Comprehensive Violent Crime Control Act of 1989: 

Hearing on H.R. 2709 Before the Subcommittee on Crime of 

the House Committee on the Judiciary, 101st Cong.2d Sess. 

79-80 (1990) (emphasis added). The report of the House 

Judiciary Committee similarly notes that the amendment to 

S922(j) "expand[s] Federal jurisdiction to permit prosecution 

for transactions involving stolen firearms ... where the 

firearms have already moved in interstate or foreign 

 8 
commerce." H.R. Rep. No. 681, 101st Cong., 2d Sess., pt. 1 

at 106 (1990), reprinted in 1990 U.S. Code Cong. & Admin. 

News 6472, 6510 (emphasis added). 

Sanders opines that, in enacting the 1990 amendment so 

as to expand federal jurisdiction under S922(j), Congress 

intended to do no more than eliminate the former 

requirement of contemporaneous interstate commerce 

travel at the time of the proscribed firearm trafficking 

offense. In other words, according to Sanders, the provision 

covers firearms that have come to rest after completing 

their interstate commerce journey, provided that the 

firearms were stolen at the time they moved in interstate 

commerce. As support for this position, Sanders refers us 

to United States v. Cruz, 50 F.3d 714 (9th Cir. 1995), cert. 

denied, ___ U.S. ___, 118 S. Ct. 611 (1997). In Cruz, the 

Ninth Circuit Court of Appeals specifically considered 

whether S922(j), as amended in 1990, applied to the receipt 

of a stolen firearm which had not traveled in interstate 

commerce after its theft. The court examined both the 

language of S922(j) and its legislative history and concluded 

that Congress's intent as to the specific scope of the statute 

remained unclear. It noted, for example, that, 

 [w]hile the text of [Assistant Attorney General] Dennis's 

 statement tends to support an expansive 

 interpretation, a footnote remarks that under S922(j) 

 and (k) (prior to amendment), it was an offense to 

 traffic in such firearms only `if they are actually moving 

 in or a part of interstate commerce at the time of the 

 offense,' id. at 80 n. 10, which tends to support the 

 less expansive interpretation that the legislation was 

 aimed at removing the contemporaneousness 

 requirement rather than the requirement of travel in 

 interstate commerce as a stolen weapon. 

50 F.3d at 718. With respect to the report of the House 

Judiciary Committee, the Ninth Circuit found the 

committee's reference to firearms that "have already moved 

in interstate ... commerce" to be ambiguous since "it could 

refer either to movement before or after the theft, or only to 

movement after the theft but before receipt." Id. 

Consequently, the court applied the rule of lenity and held 

that the statute only applies to trafficking offenses where 

 9 
the subject firearm traveled in interstate commerce as a 

stolen firearm. 50 F.3d at 719. 

The government, by contrast, urges us to accept the view 

of the Sixth Circuit Court of Appeals as set forth in United 

States v. Honaker, 5 F.3d 160 (6th Cir. 1993), cert. denied, 

510 U.S. 1180 (1994). In that case, a majority of the circuit 

panel held that S922(j), as amended in 1990, encompasses 

cases where the stolen firearm moved in interstate 

commerce only prior to its theft. Id. at 162. The majority 

acknowledged that the language of the statute was 

somewhat ambiguous but determined that any ambiguity 

was clarified by resort to the comments of the House 

Judiciary Committee and the remarks of Assistant Attorney 

General Dennis. Id. The court found that "[t]hese two 

statements leave no doubt that Congress intended S922 (j) 

to apply to firearms that have traveled in interstate 

commerce, both prior to or after being stolen." Id. See also 

United States v. Staula, 80 F.3d 596, 605 (1st Cir. 1996) 

(holding that, under S922(j), it is sufficient if weapon floats 

in the stream of interstate commerce at some point prior to 

the commission of the offense of conviction), cert. denied, 

___ U.S. ___, 117 S. Ct. 156 (1996). 

We find this latter view to be more compelling than that 

taken by the Ninth Circuit in Cruz. As Judge Guy noted in 

his concurring opinion in Honaker, there is nothing in the 

legislative history of S922(j) to suggest that the sole purpose 

of the 1990 amendment was to end the statute's 

requirement of contemporaneous interstate movement. See 

5 F.3d at 164 (Guy, J., concurring). On the contrary, the 

comments of both the House Judiciary Committee and 

Assistant Attorney General Dennis regarding Congress's 

intent to expand federal jurisdiction suggest that"Congress 

sought to deploy the full extent of federal jurisdiction, as 

emanating from the Commerce Clause, to combat 

trafficking in stolen weapons." Id. Furthermore, we, like 

Judge Guy, presume that, if Congress had intended a more 

narrow purpose, it knew how to say so clearly. Cf. 18 

U.S.C.A. S2313(a) (West Supp. 1998) (proscribing 

transactions in "any motor vehicle or aircraft, which has 

crossed a State or United States boundary after being 

stolen, [by persons] knowing the same to have been stolen") 

 10 
(emphasis added); 18 U.S.C.A. S2315 (West Supp. 1998) 

(proscribing, inter alia, transactions in certain goods, 

moneys and securities "which have crossed a State or 

United States boundary after being stolen ... [by persons] 

knowing the same to have been stolen...") (emphasis

added). 

In sum, then, we conclude that S922(j), as amended in 

1990, was intended by Congress to apply to cases like this 

one where the stolen firearms traveled in interstate 

commerce only prior to their theft.2 In light of this 

conclusion, Appellant's claim of ineffective assistance of 

counsel fails. There can be no Sixth Amendment 

deprivation of effective counsel based on an attorney's 

failure to raise a meritless argument. See Newsted v. 

Gibson, 158 F.3d 1085, 1090 (10th Cir. 1998) (S2254

claim); Rodriguez v. United States, 17 F.3d 225, 226 (8th 

Cir. 1994); Shah v. United States, 878 F.2d 1156, 1162 (9th 

Cir. 1989) (citation omitted). Accordingly, the order of the 

District Court will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

2. Two other circuits have rendered unpublished decisions arriving at the 

same conclusion. See United States v. Alford, 60 F.3d 830 (Table 

Disposition No. 95-1627), 1995 WL 410983 (8th Cir. July 13, 1995); 

United States v. Andrews, 45 F.3d 428 (Table Disposition No. 94-5109), 

1994 WL 717589 (4th Cir. Dec. 29, 1994). 

 11