Appeal by the Government from an order of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge) granting a motion under 28 U.S.C. § 2255 (1982) to set aside a fifteen-year sentence imposed pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (Supp. IV 1986), and resentencing defendant to five years. Appeal dismissed as an unauthorized appeal of a sentence.
Kaufman, Oakes and Newman, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
The United States appeals from an order of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge) granting a motion by appellee Raphael Dwight Hundley under 28 U.S.C. § 2255 (1982) to set aside a fifteen-year sentence. The District Court had imposed the sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (Supp. IV 1986), which mandates a fifteen-year minimum sentence for those committing certain firearms offenses who have three prior predicate convictions. Subsequently, the Court invalidated the sentence upon a determination that one of the three predicate convictions relied on by the Government was constitutionally infirm. Hundley was resentenced to an aggregate sentence of five years. We dismiss the appeal because what in form is an appeal from the granting of a motion under section 2255 is in substance an unauthorized appeal by the Government from the five-year sentence. Though the procedure that purports to confer appellate jurisdiction on this Court was developed by the District Court, it cannot suffice to confer upon the Government appellate rights that Congress has not created.
Hundley was indicted in 1986 on two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Appx. § 1202(a)(1) (1982), repealed and reenacted by Firearms Owners' Protection Act, Pub. L. No. 99-308, §§ 102(6)(D), 104(b), 100 Stat. 452, 459 (1986) (codified at 18 U.S.C. § 922(g) (1982 & Supp. IV 1986)), and one count of possession of cocaine, in violation of 21 U.S.C. § 844 (1982 & Supp. IV 1986). The Government sought enhanced sentencing of Hundley under the Armed Career Criminal Act, 18 U.S.C. Appx. § 1202(a) (1982 & Supp. III 1985), repealed and reenacted by Firearms Owners' Protection Act, Pub. L. No. 99-308, §§ 104(a)(4), 104(b), 100 Stat. 458, 459 (1986) (codified at 18 U.S.C. § 924(e) (Supp. IV 1986)). Under that Act, possession of a firearm by a convicted felon is punishable by a mandatory minimum sentence of fifteen years if the defendant has three or more prior convictions for certain crimes, including robbery. The Government notified the District Court that Hundley had three prior robbery convictions and moved to have him sentenced under the enhancement provision, should he be convicted on the gun possession charges. Hundley opposed application of the Armed Career Criminal Act on the ground that one of the three predicate convictions proffered by the Government--Hundley's 1977 bank robbery conviction in the District Court for the Western District of Pennsylvania (the "1977 conviction")--was constitutionally defective. He argued that the 1977 conviction violated his Sixth Amendment right to self-representation because the trial court had improperly discouraged him from proceeding pro se. He sought to preclude the use of the 1977 conviction before he would plead guilty to the gun possession charges.
Following argument by the parties, the District Judge expressed his view that the 1977 conviction had been obtained in violation of Hundley's constitutional rights and "should be set aside for purposes of [the] enhancement statute." Defense counsel urged the Judge to make that ruling prior to entry of a plea, contending that Hundley was entitled to know before he pled whether or not he was subject to a mandatory minimum sentence. See Fed. R. Crim. P. 11(c)(1). However, the Judge declined to make the ruling at that point because he did not want to deny the Government "its right to appeal." From the colloquy with counsel, it is evident that the Judge believed that if he invalidated the 1977 conviction prior to the plea and then imposed sentence without enhancement, the Government could not appeal from the sentence and would have no opportunity to secure review of the ruling on the 1977 conviction. In order to provide the Government with "something to appeal," Judge Weinstein proposed the following unusual procedure: First, he would accept guilty pleas from Hundley to the three counts of the indictment, with the minimum sentence stated to be fifteen years pursuant to the enhancement statute; second, he would immediately entertain an oral motion to set aside the enhanced sentence under section 2255; third, he would immediately grant the motion on the ground that the 1977 predicate conviction was invalid; and finally, he would resentence Hundley without regard to the enhancement statute.
In light of the procedure outlined by Judge Weinstein, Hundley agreed to plead guilty to the gun possession and narcotics charges. In accordance with that procedure, Hundley was informed at the plea proceeding that the enhancement statute was applicable and that he was subject to a mandatory minimum term of fifteen years. Defense counsel unsuccessfully renewed his motion to have the District Court determine the validity of the 1977 conviction prior to the plea. Hundley then pled guilty. At the subsequent sentencing hearing, Judge Weinstein implemented the remaining steps of his procedure. After sentencing Hundley to the mandatory minimum fifteen-year prison term under the enhancement statute, he immediately granted a motion by the defendant under section 2255 to set aside the sentence on the ground that the 1977 conviction was invalid. The Court promptly resentenced Hundley without enhancement to two years on each of the two firearms counts and one year on the cocaine count, all sentences to run consecutively--an aggregate sentence of five years.
The Government appeals on the ground that the 1977 conviction was valid and the District Judge was therefore required to impose an enhanced sentence.
We raised on our own motion the issue of whether the Government is authorized to appeal the District Court's ruling under the circumstances of this case. We invited and have received the views of the parties on this issue.
Normally an appeal may be taken by the Government from a final ruling in proceedings under section 2255. See 28 U.S.C. § 2255 (incorporating appealability provisions of 28 U.S.C. § 2253). However, in assessing the Government's right to appeal, "'[w]e must be guided . . . not by the name the court gave [its decision] but by what in legal effect it actually was.'" United States v. Sisson, 399 U.S. 267, 279, 26 L. Ed. 2d 608, 90 S. Ct. 2117 n.7 (1970) (quoting United States v. Waters, 84 U.S. App. D.C. 127, 175 F.2d 340, 341 (D.C. Cir.), appeal dismissed, 335 U.S. 869, 93 L. Ed. 413, 69 S. Ct. 168 (1948)). The record of the proceedings before Judge Weinstein makes clear that at the time Hundley was initially sentenced to fifteen years, the Court believed that the Armed Career Criminal Act was inapplicable and the Court intended ultimately to give Hundley an unenhanced sentence. Our jurisdiction depends, therefore, on whether the Government could have appealed Hundley's unenhanced sentence if it had been imposed as an initial matter rather than after the defendant's successful section 2255 motion. For if the Government could not have appealed directly from a sentence originally imposed without enhancement, it cannot acquire such a right by the contrivance of a staged plea and sentence to the mandatory fifteen-year minimum followed by a predetermined collateral attack. Under such circumstances, the section 2255 motion would constitute a collusive suit, arranged between the sentencing judge and the Government over the defendant's objection,*fn1 to create a substitute for an appeal that the Government could not otherwise take. As will appear, we conclude, in agreement with what Judge Weinstein implicitly recognized, that the Government could not have appealed if Hundley had initially been given an unenhanced sentence. An appeal from a ruling in a contrived collateral attack as a means of creating an appeal from the sentence is therefore improper.
It is fundamental that "the United States has no right of appeal in a criminal case absent explicit statutory authority." United States v. Scott, 437 U.S. 82, 84-85, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978); see Arizona v. Manypenny, 451 U.S. 232, 245, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981); United States v. DiFrancesco, 449 U.S. 117, 131, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980); United States v. Wilson, 420 U.S. 332, 336, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975); United States v. Sanges, 144 U.S. 310, 36 L. Ed. 445, 12 S. Ct. 609 (1892). This rule is based on the well-settled principle in federal jurisprudence that appeals by the Government in criminal cases are something unusual, exceptional, not favored," Carroll v. United States, 354 U.S. 394, 400, 1 L. Ed. 2d 1442, 77 S. Ct. 1332 (1957). Additionally, the policy "has deep roots in the common law, for it was generally understood, at least in this country, that the sovereign had no right to appeal an adverse Criminal judgment unless expressly authorized by statute to do so." United States v. Manypenny, supra, 451 U.S. at 245 (footnote omitted).
We can find no explicit statutory authority for the Government to appeal an order imposing an unenhanced sentence on the ground that a predicate conviction was improperly excluded from consideration. The Armed Career Criminal Act does not authorize Government appeals from a district court's determination that the Act is inapplicable. The statute differs in this regard from several other sentence enhancement statutes in which Congress has explicitly permitted the Government to appeal adverse rulings. See 18 U.S.C. §§ 3575, 3576 (1982) (dangerous special offenders); 21 U.S.C. § 849(h) (1982) (dangerous special drug offenders).*fn2 The Government argues that its appeal should be permitted under the Armed Career Criminal Act as "analogous" to these other statutes. In our view, however, Congress' explicit authorization of sentence appeals under those statutes only underscores the significance of the absence of similar ...