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UNITED STATES v. GARRETT

April 12, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES GARRETT, Defendant


William T. Hart, United States District Judge.


The opinion of the court was delivered by: HART

WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 A jury convicted James Garrett of three offenses: possession of a firearm by a felon (18 U.S.C. § 922(g)); possession of a weapon to facilitate a narcotics trafficking offense (18 U.S.C. § 924(c)); and possession of a controlled substance with intent to distribute (21 U.S.C. § 841(a)). The ultimate question for this court is the proper sentence under the Federal Sentencing Guidelines.

 Mr. Garrett has moved to strike the Guidelines calculation. He raises three issues. First, he claims the government failed to prove that he meets the criteria for enhanced penalties under 18 U.S.C. § 924(e) and 21 U.S.C. § 841(b)(1)(C). Second, assuming that he is subject to statutory enhancement, he challenges his sentence under the Federal Guidelines. He claims the Guidelines double count his criminal history, in violation of his Fifth Amendment right to be free from double jeopardy. Finally, he challenges the Guidelines sentence as cruel and unusual punishment.

 The first two claims are rejected and, for the reasons indicated below, it is not necessary to reach the third.

 CONVICTIONS FOR STATUTORY ENHANCEMENT PURPOSES

 Mr. Garrett is no stranger to the criminal court. He has seventeen prior convictions and many more arrests. To enhance the punishment on the first and third counts, the government identified five of those convictions -- three for armed robbery, one for unlawful use of weapons, and one for possession of a controlled substance with intent to distribute. Whether the government successfully connected Mr. Garrett to these prior convictions is the subject of his first motion.

 The convictions identified by the government are the following:

 
(2) Armed robbery, October 30, 1973, Circuit Court of Cook County, Illinois, No. 73-119;
 
(3) Armed robbery, August 31, 1976, Circuit Court of Cook County, Illinois, No. 74-6387;
 
(4) Possession of a controlled substance with intent to distribute, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3410;
 
(5) Unlawful use of weapons, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3838.

 The government also notified defendant of a grand larceny conviction in Jackson, Mississippi on June 10, 1986, but at the hearing advised the court that it would not rely on this conviction.

 At the outset of the hearing, the defendant denied he was the person convicted of the 1968 and 1973 armed robbery convictions. He admitted he was the person charged in the 1976 armed robbery conviction, but contended that his attorney and the trial judge entered a plea of guilty for him in his absence. Defendant concedes that he was the person convicted and sentenced for the two offenses committed in 1984.

 As to the three armed robberies, the government called a treasury agent who testified that he obtained certified copies of the three conviction orders. He explained that he obtained the fingerprint records of the person confined as a result of these convictions and caused them to be compared with the known fingerprints of defendant Garrett. The government then introduced a fingerprint analysis which shows the fingerprints of the person confined as a result of the convictions to be the same as defendant's fingerprints taken from the defendant on April 9, 1988. It also appears from these records that defendant has from time to time used the names James E. Garrette and George Bey. This evidence was sufficient to show defendant to be the person convicted of the 1968, 1973, and 1976 offenses.

 Defendant testified on his own behalf that the plea of guilty shown on the record of the 1976 conviction was entered in his absence by his attorney and the trial judge. He further stated that he served a period of incarceration on this sentence and was paroled. Defendant, when he testified, did not contest that he was the person convicted of the 1968 and 1973 offenses.

 Defendant did not support his assertion that the 1976 conviction was obtained by the misconduct of his attorney and the trial judge. He did not introduce a transcript of the proceedings or call his attorney -- who is a well known practitioner in this court. Defendant's testimony is not credible and does not overcome the proof presented by the record of convictions received in evidence.

 Accordingly, the court finds that defendant is the person named in each of the convictions presented by the government and rejects the contention that the 1976 conviction was obtained in defendant's absence.

 A. 18 U.S.C. § 924(e)

 Section 924(e), Title 18, United States Code, allows the state to seek an enhanced penalty for violation of 18 U.S.C. § 922(g), felon in possession of a firearm, if the defendant has three prior convictions for either a violent felony or a serious drug offense. See generally United States v. Lowe, 860 F.2d 1370 (7th Cir. 1988), cert. denied, 490 U.S. 1005, 1989 U.S. LEXIS 1696, 104 L. Ed. 2d 155, 109 S. Ct. 1639 (1989). Armed robbery is a violent felony, within the meaning of 18 U.S.C. § 924(e)(2)(B)(i). United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987), cert. denied, 485 U.S. 969, 99 L. Ed. 2d 442, 108 S. Ct. 1244 (1988). The government seeks this enhancement. Since Mr. Garrett has three ...


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