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. e du/thir dc ir c uit_1999/16Filed 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 Distr ict Judge for the Western District of Pennsylvania, sitting by design ation.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 ... wa s 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 U nited
States District Court for the Middle District of Pe nnsylvania for violations of this provision upon entering a pl ea of guilty to charges of trafficking and conspiring to traffic in stolen firearms. It is undisputed that the transactions fo r which Sanders was convicted involved the sale and disposa l 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 sentenc e 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 ca lled upon to determine whether S922(j), prior to its ame ndment in 1994, was intended to apply to transactions in s tolen

2firearms where the weapons moved in interstate comm erce

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 again st Sanders charging him with conspiracy to possess afi rearm as a convicted felon and to traffic in stolenfirear ms [Count I], possession of a firearm by a convicted felon [C ount II], trafficking in stolen firearms in violation of 18 U .S.C. S922(j) [Count III], and retaliating against a witn ess [Count IV]. The government alleged that, between September 1990 and April 1994, Sanders conspired with two other individuals to burglarize several residences in rem ote locations. Once inside the residences, Sanders and his cohorts would steal items with potential resale val ue, including firearms. Other firearms were obtained by providing false information to legitimate gun deale rs. In all, a total of forty-four guns ultimately were attribut ed to Sanders. These firearms were sold to private indivi duals 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 cam e into possession of them.

The scheme finally ended after one of Sanders's fel low conspirators was arrested and began cooperating wit h law enforcement officials. Following his own indictment
, Sanders agreed to plead guilty to the charges of tr afficking and conspiring to traffic in stolen firearms on the advice of his attorney. In exchange for his plea, the remaini ng charges against him were dismissed. The District Co urt subsequently sentenced Sanders to a seventy-month t erm of incarceration.

On January 14, 1998 Sanders filed a motion to set a side, correct, or vacate his sentence pursuant to 28 U.S. C.
S2255. Sanders claims that he committed no violatio n of the law with respect to the trafficking charges set forth in Counts I and III and, therefore, his attorney was i neffective in advising him to plead guilty to those charges. M ore

3specifically, Sanders contends that the version of 18 U.S.C.

S922(j) in effect at the time of his conduct requir ed that the firearms which are the subject of the trafficking o ffense enter interstate commerce as stolen firearms, i.e., after being stolen. Sanders further claims that he was pr ejudiced 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 additi onal "bargaining chip" with which to negotiate a better plea offer.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the instant appeal pursua nt to 28 U.S.C. S2255 and S1291. United States v. Cleary, 46 F.3d 307, 309 (3d Cir. 1995). Because our dispositi on of this appeal ultimately turns on an interpretation o f statutory law, we apply a plenary standard of revie w. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 199 8) (legal component of an ineffective assistance of counsel c laim in the habeas context is subject to plenary review) (a ddressing claim under 28 U.S.C. S2254).

III. DISCUSSION

A.

Initially, we must address the government's argumen t 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 default ed 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 Stat es, ___ U.S. ___, ___, 118 S. Ct. 1604, 1611 (1998) (internal ci tations 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, Sand ers would be unable in any event to establish his "actual innocence" with respect to the S922(j) charges.

4Sanders contends that he can establish "cause" by v irtue

of his counsel's ineffectiveness in advising him to plead guilty to the trafficking and conspiracy charges un der 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 th e type of prejudice that will excuse procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Sistrunk v. Vaug hn, 96 F.3d 666, 675 (3d Cir. 1996) (state prisoner habeas claim); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1 993) (recognizing principle but declining to consider it on appeal). Accord United States v. Guerra, 94 F.3d 98 9, 993- 94 (5th Cir. 1996); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). To prevail on such a claim, howev er, 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. Wash ington, 466 U.S. 668, 687 (1984); Sistrunk, 96 F.3d at 670.

The district judge rejected Sanders's ineffective a ssistance of counsel claim based on a two-part analysis. Firs t, the judge observed that the government had acquired overwhelming evidence of Sanders's guilt. He theref ore considered it reasonable for defense counsel to pre sume that Sanders would ultimately be convicted by a jur y. The district judge then engaged in a lengthy and detail ed analysis of the potential ramifications of Sanders' s plea agreement for purposes of sentencing. He essentiall y predicted that Sanders benefitted from his plea agr eement because he faced less potential jail time than he m ight otherwise have faced if convicted on the felon-in-p ossession charge under Count II of the Indictment. In light o f 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 tha t charge and the related conspiracy charge.

On appeal, Sanders argues that, regardless of the D istrict Court's ex post calculation of his supposed sentenc e on Counts I, II, and IV, he would have been in a bette r plea bargaining position to receive a shorter sentence i f Count III and part of Count I had been dismissed. However, we need

5not reach this issue. Because we conclude that Sand ers did

in fact engage in prohibited conduct under Counts I and III of the indictment, it necessarily follows that Sand ers's counsel was not ineffective in advising him to plea d guilty to those charges rather than attempting to have the m dismissed. It further follows that Sanders's S2255 claim would inevitably fail on the merits, as he can demo nstrate no legitimate basis for withdrawal of his guilty pl ea or for vacating his sentence. We turn, then, to our examin ation of the operative statutory provision.

B.

It is undisputed that the conduct for which Sanders was charged occurred between September 1990 and April 1 994. The parties therefore agree that, for purposes of t his case, we must apply 18 U.S.C. S922(j) as it existed follo wing its amendment in 1990 and prior to its amendment effect ive September 13, 1994. See 18 U.S.C.A. S922(j) (West 1 976) 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 recei ve, conceal, store, barter, sell, or dispose of any stole n firearm or stolen ammunition, or pledge or accept as se curity for a loan any stolen firearm or stolen ammuniti on, which is moving as, which is a part of, which cons titutes, or which has been shipped or transported in, in terstate or foreign commerce, knowing or having reasonab le cause
to believe that the firearm or ammunition wa s stolen.

Id.

Sanders interprets the foregoing language to mean t hat the subject firearm must have traveled in interstat e commerce as a stolen firearm -- i.e., the theft mus t 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 inte rstate commerce at some time, whether before or after it w as stolen. The significance of these differing interpr etations is clear. Under the first interpretation, Sanders did not

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

he disposed never passed through interstate commerc e after he stole them. Under the government's interpr etation, Sanders did in fact commit a violation of S922(j) a nd, therefore, his counsel could not have been ineffect ive in failing to have those charges dismissed.

In ascertaining the meaning of a statutory provisio n, we are instructed to "look not only to the particular statutory language, but to the design of the statute as a who le and to its object and policy." Crandon v. United States , 494 U.S. 152, 158 (1990) (citations omitted). See also McElr oy v. United States, 455 U.S. 642, 658 (1982) (Court look s to statutory language and legislative history in deter mining 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 len ity applies and the statute is to be narrowly construed. Id. (c itations omitted); Crandon, 494 U.S. at 158.

On its face, S922(j) appears to be susceptible to t wo alternative interpretations. On the one hand, it ca n 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" m erely
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 th at an offense is committed when a stolen firearm is sold, disposed of, etc. by one having reason to know that it was s tolen, as long as the firearm passed through interstate comme rce at some time, whether before or after its theft. On th e other hand, Sanders urges that the phrase "which has been shipped or transported in [interstate commerce]" mo difies the phrase "stolen firearm," such that thefirearm m ust have moved through interstate commerce as a stolen firearm. We view each of these proposed interpretat ions as facially plausible.

If there is any ambiguity in the language of S922(j ), however, we think it is resolved by reference to th e

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

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

It shall be unlawful for any person to recei ve, conceal, store, barter, sell, or dispose of any stole n firearm or stolen ammunition, or pledge or accept as se curity for a loan any stolen firearm or stolen ammuniti on, which is moving as, which is a part of, or which c onstitutes, interstate or foreign commerce, knowing or h aving
reasonable cause to believe that the firearm or ammunition was stolen.

Federal courts applying this provision had interpre ted it as requiring two elements: first, the firearm's moveme nt through interstate commerce had to be on-going at t he time of the underlying trafficking offense, see United S tates v. Jones, 564 F.2d 1315, 1316 (9th Cir. 1977), United States v. Ruffin, 490 F.2d 557, 560-61 (8th Cir. 1974); an d second, the firearm had to be stolen at the time of its movement through interstate commerce. See United St ates 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 shippe d or transported in [interstate commerce]." Pub.L. 101-6 47 S2202(a). It is clear from the legislative history that this amendment was intended to expand the jurisdiction o f federal courts by broadening the scope of the inter state 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 infirear ms which
have been stolen or have had the serial number remo ved 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 Cri me of the House Committee on the Judiciary, 101st Cong.2d Sess. 79-80 (1990) (emphasis added). The report of the Ho use Judiciary Committee similarly notes that the amendm ent to S922(j) "expand[s] Federal jurisdiction to permit p rosecution for transactions involving stolen firearms ... wher e the firearms have already moved in interstate or foreig n

8commerce." 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), Co ngress intended to do no more than eliminate the former requirement of contemporaneous interstate commerce travel at the time of the proscribed firearm traffi cking offense. In other words, according to Sanders, the provision covers firearms that have come to rest after comple ting their interstate commerce journey, provided that th e firearms were stolen at the time they moved in inte rstate commerce. As support for this position, Sanders ref ers us to United States v. Cruz, 50 F.3d 714 (9th Cir. 199 5), cert. denied, ___ U.S. ___, 118 S. Ct. 611 (1997). In Cru z, the Ninth Circuit Court of Appeals specifically conside red whether S922(j), as amended in 1990, applied to the receipt
of a stolen firearm which had not traveled in inter state
commerce after its theft. The court examined both t he 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 Gene ral] Dennis's statement tends to support an expansive interpretation, a footnote remarks that unde r S922(j) and (k) (prior to amendment), it was an offe nse to traffic in such firearms only `if they are a ctually moving in or a part of interstate commerce at the t ime of the offense,' id. at 80 n. 10, which tends to su pport the less expansive interpretation that the legis lation was aimed at removing the contemporaneousness requirement rather than the requirement of t ravel in interstate commerce as a stolen weapon.

50 F.3d at 718. With respect to the report of the H ouse Judiciary Committee, the Ninth Circuit found the
committee's reference to firearms that "have alread y 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 offens es where

9the 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 t he circuit panel held that S922(j), as amended in 1990, encomp asses cases where the stolen firearm moved in interstate commerce only prior to its theft. Id. at 162. The m ajority acknowledged that the language of the statute was somewhat ambiguous but determined that any ambiguit y was clarified by resort to the comments of the Hous e Judiciary Committee and the remarks of Assistant At torney General Dennis. Id. The court found that "[t]hese t wo statements leave no doubt that Congress intended S9 22 (j) to apply to firearms that have traveled in intersta te 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 w eapon 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 no ted 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 contrar y, the comments of both the House Judiciary Committee and Assistant Attorney General Dennis regarding Congres s's intent to expand federal jurisdiction suggest that" Congress sought to deploy the full extent of federal jurisdi ction, 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, whi ch has crossed a State or United States boundary after bei ng stolen, [by persons] knowing the same to have been stolen")

10(emphasis added); 18 U.S.C.A. S2315 (West Supp. 199 8)

(proscribing, inter alia, transactions in certain g oods, moneys and securities "which have crossed a State o r United States boundary after being stolen ... [by p ersons] 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 li ke this
one where the stolen firearms traveled in interstat e commerce only prior to their theft.2 In light of th is conclusion, Appellant's claim of ineffective assist ance of
counsel fails. There can be no Sixth Amendment deprivation of effective counsel based on an attorn ey'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, 22 6 (8th Cir. 1994); Shah v. United States, 878 F.2d 1156, 1 162 (9th Cir. 1989) (citation omitted). Accordingly, the ord er 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 dec isions 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 Dispos ition No. 94-5109), 1994 WL 717589 (4th Cir. Dec. 29, 1994).

11