The resolution of this question of statutory intent hinges on the intent of Congress. Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985) (Garrett ). In divining congressional intent, we first look to the language and structure of 18 U.S.C.App. Sec. 1202(a), as amended by the ACCA.6 See Garrett, 471 U.S. at 779-82, 105 S.Ct. at 2412-14. Unfortunately, the statute is not a model of clarity.

In some respects, the ACCA amendment resembles a sentence-enhancement provision. Beginning with the phrase "in the case of," the ACCA amendment appears to relate back to the preceding sentence of the statute. While the first sentence lists the classes of persons who are prohibited from receiving, transporting, or possessing firearms, the second sentence seems to do no more than single out a portion of one of these classes for more severe punishment. Additionally, as the Third Circuit noted, "the inclusion of the Armed Career Criminal Act into the same paragraph as the previously enacted section 1202(a)(1) with no division into separate numbers or letters, suggests treatment of the contents as a single offense." Hawkins, 811 F.2d at 218-19. See also West, 826 F.2d at 911; Jackson, 824 F.2d at 23.

On the other hand, the ACCA amendment repeats the possession and commerce elements of Sec. 1202(a)(1) and could stand on its own as an independent separate offense. As the Fifth Circuit pointed out, the ACCA amendment also "lacks other common indicia of sentence-enhancement provisions," such as an explicit reference to a conviction under Sec. 1202(a)(1), a penalty derived as a multiplier of Sec. 1202(a)(1), procedures for a sentencing hearing, or a title identifying the amendment as a sentence enhancement provision. Davis, 801 F.2d at 755-56. Cf. 18 U.S.C. Sec. 3575 (Supp. III 1985) ("Increased sentence for dangerous special offenders" provision with detailed procedures for sentencing hearing); 21 U.S.C. Sec. 849 (1982) ("Dangerous special drug offender sentencing" provision, also containing detailed sentencing procedures).

We find some merit in each of these competing interpretations of the language and structure of Sec. 1202(a). Finding the plain language and structure of the statute to be inconclusive, we turn for guidance to the legislative history of the ACCA amendment.

The earliest versions of the ACCA clearly proposed a new federal offense. See S. 52, 98th Cong., 1st Sess. Sec. 2 (1983) (federal offense of robbery or burglary if committed with a firearm by a defendant with two or more previous robbery or burglary convictions); H.R. 1627, 98th Cong., 1st Sess. Sec. 2 (1983) (federal offense for a defendant with two prior robbery or burglary convictions to commit any robbery or burglary with a firearm). This approach was ultimately rejected, however, due to "serious reservations as to the appropriateness of prosecutions of local burglaries or robberies under a federal statute." H.R.Rep. No. 1073, 98th Cong., 2d Sess. at 4 (1984), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3664 (House Report). Instead, H.R. 6248 was introduced as a means of accomplishing the same penal goals without expanding the federal criminal law into existing state criminal law. The House Report accompanying H.R. 6248, which ultimately formed the basis of the ACCA, explained the purpose of the bill:

In "enhancing" this offense, [Sec. 1202(a)(1),] with H.R. 1627-type sanctions, if the defendant has been convicted three times of robbery or burglary, we are enhancing an existing Federal crime, which would alleviate many of the problems associated with H.R. 1627 such as the issue of a local D.A. veto or the difficulties encountered by Federal Courts in applying state robbery and burglary laws in Federal prosecutions.

House Report at 5, U.S.Code Cong. & Admin.News p. 3665 (emphasis added). The House Report also explains that if "circumstances warrant prosecution under the enhanced penalty provisions of this bill, the mandatory fifteen-year penalty is available." Id. (emphasis added). While the House Report is not entirely free from ambiguity,7 we are nevertheless satisfied that the weight of the legislative history supports an interpretation of the ACCA amendment as a sentence enhancement provision.

We are buttressed in this conclusion by remarks made in floor debates by the principal sponsors of the ACCA in both the House and the Senate. Senator Specter, the principal sponsor of the ACCA in the Senate, stated:

This bill would create no new Federal crime. Under present section 1202(a), possession of a firearm by a convicted felon is already a federal crime, with a maximum prison sentence of 2 years. This title would simply provide for a stiffer sentence for career criminals. It would not permit the Federal prosecution of any individual who could not be prosecuted under current Federal law, and would not trespass upon any State prosecutions or require Federal courts to apply State law.

130 Cong.Rec. S13,030 (daily ed. Oct. 4, 1984) (emphasis added). Representative Hughes, the principal sponsor of the ACCA in the House, stated:

This bill would enhance the sanctions of 18 U.S.C. app. section 1202(a) with a 15 year minimum sentence if the defendant has been convicted three times of felonies for robbery or burglary.

130 Cong.Rec. H10,550 (daily ed. Oct. 1, 1984) (emphasis added). Several other statements were made to the same effect. See, e.g., 130 Cong.Rec. H10, 550 (daily ed. Oct. 2, 1984) (statement of Rep. Sawyer) ("H.R. 6248 takes an existing gun possession statute and enhances the penalty for any violation by a person having been previously convicted three times for armed burglary and robbery") (emphasis added); 130 Cong.Rec. H11,982 (daily ed. Oct. 10, 1984) (statement of Rep. Smith) (bill "provides enhanced penalties for career criminals possessing a firearm") (emphasis added).

We therefore conclude that Congress intended the ACCA to provide enhanced penalties for those who violate Sec. 1202(a) after being convicted three times of burglary or robbery. The judgment of the district court, sentencing Cloyd and Rush under the provisions of the ACCA, is therefore affirmed.

JOHN R. GIBSON, Circuit Judge, dissenting, joined by LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

I respectfully dissent.

The court today makes clear that it views the language and structure of the ACCA, 18 U.S.C.App. Sec. 1202(a), as inconclusive as to whether the Act is a sentencing enhancement or a new offense. While the court states that the weight of legislative history supports the sentencing enhancement interpretation, it concludes that the House report is not entirely free from ambiguity. The court essentially resolves the issue only by looking to the statements of Senator Specter and Representative Hughes.

I believe that the language and structure of the Act demonstrate creation of a separate offense, and that this conclusion is borne out by the legislative report when it is carefully studied. While, taken literally, the statements of Senator Specter and Representative Hughes are at variance with both the language and structure of the Act and the report, I do not believe they were meant to address the question before the court, or if they were, that they could override the language of the ACCA as enacted.

As the court today recognizes, the issue in this case has been considered by a number of the circuits. I find most persuasive the views of Judge Rubin of the Fifth Circuit in United States v. Davis, 801 F.2d 754 (5th Cir.1986), and Judge Rosenn of the Third Circuit in his dissent in United States v. Hawkins, 811 F.2d 210, 223-25 (3d Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987). We need not repeat in detail the strong and convincing reasoning articulated by those judges.

The language and structure of the ACCA itself indicates that the ACCA is an independent criminal offense, rather than simply a sentence enhancer engrafted onto section 1202(a)(1). The ACCA describes the acts it proscribes without any reference to section 1202(a)(1), except to specify which courts' convictions are relevant. Moreover, as in Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 2413, 85 L. Ed. 2d 764 (1985), the existence of a discrete offense is indicated by the fact that the provision carries its own penalty, "rather than a multiplier of the penalty established for some other offense." As noted by Judge Rubin in United States v. Davis, 801 F.2d at 756, the ACCA also lacks the typical indicia of sentence-enhancing statutes, which usually provide sentencing procedures and are titled as sentencing provisions. See, e.g., 18 U.S.C. Sec. 3575 (1982) (repealed effective 1986) and 21 U.S.C. Sec. 849 (1982) (repealed effective 1987). Nothing in the statutory language suggests that the ACCA is anything other than an independent provision for a new criminal offense. See also Davis, 801 F.2d at 755-56; United States v. Hawkins, 811 F.2d at 223-25 (Rosenn, J., dissenting).

The legislative history also supports the conclusion that the ACCA creates a new offense. The House report on the final version of the ACCA discussed " 'enhancing' this offense," " 'enhancing' an existing Federal crime", and "adding a new offense." H.R.Rep. No. 1073, 98th Cong., 2d Sess. 5-6 (1984), U.S.Code Cong. & Admin.News 1984, pp. 3664-3666. It is true that the report, as the court's opinion points out, also refers to "enhanced penalty provisions." H.R.Rep. No. 1073 at 5. See also id. at 1 ("enhanced penalties"). However, the language of the report, while seemingly containing this ambiguity, when taken in context demonstrates that Congress intended to enhance the offense or crime, rather than the penalty.

The evolution of the Act in Congress, as described in the House report, was from a wide-ranging provision with no interstate commerce moorings to a traditional, federal interstate-commerce related crime; nothing in this evolution addressed the question of changing the bill from its original status as a new crime to that of a penalty enhancement. The report first outlines the history of the earlier bills, S. 52, 98th Cong., 1st Sess. (1983), and H.R. 1627, 98th Cong., 1st Sess. (1983), which were patently designed to create a new crime, but which drew widespread objection because they created a federal offense for any robbery or burglary committed with a firearm if the defendant had two or more previous robbery or burglary convictions, without any reference to the weapon being possessed, received, or transported in interstate commerce. In response to federalism objections that the bills would make federal crimes of purely local robberies and burglaries, Chairman Hughes suggested enacting the basic ACCA provisions as a markup to existing 18 U.S.C.App. Sec. 1202(a), which had an interstate commerce limitation. H.R.Rep. No. 1073 at 4.

Nothing in the legislative process as described in the report indicates an intent to change the ACCA from its original status as a new offense to a penalty-enhancer; the lack of an interstate commerce limitation was a different problem, and there is no reason to believe Congress' resolution of that problem has any bearing on the question before us. Moreover, study of the report shows that the drafters used the "enhanced offense" and "enhanced crime" language where they were engaged in careful legal analysis of the effect of the bill. Under the heading "Sectional Analysis," the report makes clear that "section 2 amends 18 U.S.C.App. Sec. 1202(a) by adding a new offense * * *." H.R.Rep. No. 1073 at 6, U.S.Code Cong. & Admin.News 1984, p. 3666. The references to "enhanced penalty" are more casual, occurring in more general discussions in the report. I read the House report as clearly evidencing Congress' realization that it was the crime or offense that was being enhanced by creating a higher grade of the crime, rather than merely adding to the sentencing provisions. See Davis, 801 F.2d at 756.

Similarly, the statements of Senator Specter and Representative Hughes should be seen as limited to discussion of the federalism concerns that plagued the earlier bills. I believe that the language, structure, and legislative history of the statute is clear. The comments of Chief Justice Rehnquist in Regan v. Wald, 468 U.S. 222, 104 S. Ct. 3026, 3035, 82 L. Ed. 2d 171 (1984), aptly fit this case:Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies, which often take place before the bill has achieved its final form, would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President.

Congress, by its use of language and structure, showed it intended to enact exactly what the House Committee Report describes--a separate offense. This articulated intent makes rational the fifteen-year sentence without probation or parole, as opposed to the maximum two-year sentence for a first time offender. Judge Rosenn forcefully argued in his Hawkins dissent that to apply this statute as a sentencing enhancement violates the due process clause. 811 F.2d at 223-24. We should avoid interpreting the statute to require this result.

In United States v. Jackson, 824 F.2d 21, 25 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S. Ct. 715, 98 L. Ed. 2d 665 (1988), the court reasoned that the ACCA did not create a separate offense because, if it did, the government would have to prove the three prior felony convictions before the jury, and this would violate the congressional policy against putting a defendant's previous convictions before the jury. 824 F.2d at 25. However, section 1202(a)(1) itself calls for proof of a prior conviction as an element of the crime, United States v. Blade, 811 F.2d 461, 466 (8th Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 124, 98 L. Ed. 2d 82 (1987), and it is not erroneous to allow proof of more than one previous felony in a section 1202(a)(1) case. Id. Obviously, Congress does not invariably choose against allowing introduction of past felony convictions, and that "policy" should not weigh on either side in this argument.

Since the language and the structure of the ACCA and its history indicate that it creates a separate offense on which neither Cloyd nor Rush's jury was instructed, I would reverse.