Ball v. United States

RESPONDENT: United States
LOCATION: Massachusetts Department of Education Bureau of Special Education Appeals

DOCKET NO.: 84-5004
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 470 US 856 (1985)
ARGUED: Jan 09, 1985
DECIDED: Mar 26, 1985

Andrew J. Pincus - on behalf of the respondent
Jo S. Widener - on behalf of the petitioner

Facts of the case


Media for Ball v. United States

Audio Transcription for Oral Argument - January 09, 1985 in Ball v. United States

Warren E. Burger:

We will hear arguments next in Ball against United States.

Ms. Widener, I think you may proceed whenever you are ready.

Jo S. Widener:

May it please the Court, I am here this morning on behalf of Truman Lewis Ball to ask the Court to vacate one of his convictions and one of his sentences under the cases of United States against Batchelder and Blockburger against the United States.

This is a direct appeal from two convictions suffered by Mr. Ball, one for 922, receipt by a convicted felon of a firearm, and 1202, possession of a firearm by a convicted felon.

The government proved three incidences of possession in this case, all of which occurred at or about the same time.

The first was when Truman Ball reached into a bag of beer and came out with that gun.

The second was when he had the gun in Clarence Music's yard and waved it at him.

The third was when they arrested him, when the police officers arrested him at Gary Music's house and saw the gun in his back pocket.

There are a few other critical facts to this case as well.

Mr. Ball is now in prison, where he has been for the last 15 months.

He is serving a three-year sentence on the 922 receipt.

At the same time, he is on probation for the 1202 conviction.

He has two years' probation, and he is fully subject to the conditions of that probation at the time that he is in prison now serving those three years.

This is under the case of Burns against the United States, which is a case we have not cited in our brief.

The citation to it is 287 US 216.

Any time between now and the next nine months, if Mr. Ball should get into any sort of confrontation there in the prison or any trouble at all, if he should infringe upon any prison regulation at all, he is subject to having his probation revoked.

At whatever time he has that probation revoked, he is then subject to having an extra two years imposed upon him, two years that he will have to serve.

That, of course, will be concurrent with the sentence that he is now serving, but it will still mean to him that after he has served his three years on the 922 offense, he will yet have one more year or at least up to one more year, somewhere between three months and one year, of a sentence to serve because of the 1202 concurrent sentence that is now imposed upon him.

In other words, he is worse off today because he has a probation to serve than he would be if he simply had two years to serve on that sentence and it was running concurrently, because if he had two years to serve, it would be over in two years.

However, now we have no certainty that it will be over in two years, and we have no certainty for the next nine months.

We say that this is not an adverse collateral consequence of this concurrent sentence.

We say that this is a direct, immediate consequent to Mr. Ball that he is suffering under today, and therefore this case ought to be reviewed.

William H. Rehnquist:

Ms. Widener, the government says you didn't make these arguments in the Court of Appeals, and therefore we shouldn't consider them.

Jo S. Widener:

Your Honor, we would argue that we did make these arguments.

We asked for both the conviction and sentence to be vacated.

That was the opening sentence in our brief, and we also asked in our notice of appeal that... our notice of appeal was taken from the judgment of the District Court, including the finding of guilty and also the sentence that was imposed upon each of these... on each of these two convictions.

William H. Rehnquist:

I don't think anyone doubts you appealed to the Court of Appeals for the Fourth Circuit.

The question is, what arguments did you make to that court?

Were they the same as you are making to us?

Jo S. Widener:

Yes, Your Honor, they were exactly the same as we are making hare.