863 F2d 31 United States v. Anna

863 F.2d 31

UNITED STATES of America, Appellee,
Walter William ANNA, Appellant.

No. 87-1107.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 7, 1988.
Decided Dec. 16, 1988.

James C. Delworth, St. Louis, Mo., for appellant.

Richard Poehling, St. Louis, Mo., for appellee.

Before FAGG, Circuit Judge, WRIGHT, Senior Circuit Judge,* and BOWMAN, Circuit Judge.



Defendant Walter William Anna entered a plea of guilty to possession of a firearm by a felon in violation of 18 U.S.C.App. Sec. 1202(a)(1) and received a 15-year sentence, the minimum enhanced sentence. He appeals the District Court's1 denial of his Fed.R.Crim.P. 35 motion for correction of sentence. We affirm.


When this appeal previously was before us, we remanded the case to the District Court for a determination of whether there was excusable neglect, within the meaning of Fed.R.App.P. 4(b), for the untimely filing of Anna's notice of appeal. See United States v. Anna, 843 F.2d 1146 (8th Cir.1988). On remand, the District Court has made an explicit finding of excusable neglect and has extended Anna's time for filing his appeal in accordance with Rule 4(b). In light of these rulings by the District Court, it is clear that we have jurisdiction to decide the merits of the appeal, and we now proceed to do so.2


Anna challenges his sentence on the ground that he was improperly sentenced under 18 U.S.C.App. Sec. 1202(a)(1). He contends that the 1984 amendments to Sec. 1202(a) created a new criminal offense and were not a sentence-enhancement provision. See Armed Career Criminal Act, ch. 18, Sec. 1802, 98 Stat. 2185 (1984) (codified at 18 U.S.C.App. Sec. 1202(a)). We considered and rejected that argument in United States v. Rush, 840 F.2d 574 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988). We held there that the intent of Congress was to enhance the punishment for career criminals and not to create a separate statutory offense. Id. at 578. We are bound by that holding here. Therefore, the imposition of an enhanced sentence in the present case was proper.


Accordingly, the judgment of the District Court is affirmed.


The HONORABLE EUGENE A. WRIGHT, Senior United States Circuit Judge for the United States Court of Appeals, Ninth Circuit, sitting by designation


The Honorable James H. Meredith, United States District Judge for the Eastern District of Missouri


"If the District Court finds excusable neglect and extends Anna's time for filing a notice of appeal to January 16, 1987, the District Court shall so advise this Court, and the appeal then may proceed without further notice or briefing." United States v. Anna, 843 F.2d 1146, 1148 (8th Cir.1988)