06-2079 - United States of America v. Wayne Jackson, Appellant
U.S. Tenth Circuit Court of Appeals
(March 9, 2007)

Briefs

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Case Summary (prepared at Washburn Law)

Procedure

Appellant plead guilty to an indictment charging one count of conspiracy and six counts of possession with intent to distribute cocaine and cocaine base. Appellant seeks to reverse the trial court's decision allowing a prior misdemeanor conviction to be included in his criminal history that led to an increased sentence under the Federal Sentencing Guidelines.

Facts

From January 24, 2005 through February 1, 2005, Appellant sold 7.39 grams of cocaine base and 2.63 grams of cocaine to undercover police officers from a residence in Roswell, New Mexico on six different occasions. Appellant then plead guilty to all counts of an indictment charging one count of conspiracy and six counts of possession with intent to distribute cocaine and cocaine base. In preparation for sentencing a pre-sentence report was prepared by the United States Probation Office (USPO). The USPO calculated Appellant's criminal history category as II based on two criminal history points. The criminal history points resulted from 2 prior convictions. First, Appellant was convicted in 1996 for aggravated driving while intoxicated. Second, in 1995 Appellant was convicted for battery, domestic violence, and negligent use of a firearm. For the 1995 conviction Appellant was sentenced to 90 days in custody, which was suspended on condition that Appellant pay a $528.00 fine and get counseling.

Based upon Appellant's criminal history category of II, he became ineligible for a "safety valve" reduction in his sentence. Therefore, Appellant's sentencing guideline range increased from 37-46 months to a minimum of 60 months. Appellant filed a written objection to the use of the 1995 conviction. Appellant stated he did not have an attorney at the 1995 proceedings nor did he ever waive his right to an attorney. Appellant argued that since he was not represented by counsel and received a suspended sentence of imprisonment no criminal history point could be assessed for the 1995 conviction. Without the inclusion of the 1995 conviction, Appellant's criminal history category would be I as he would only be assessed one criminal history point.

The United States conceded that Appellant was not represented by counsel, Appellant did not waive his right to counsel, and the suspended portion of the sentence in the 1995 proceeding was unconstitutional. However, the United States argued that once the suspended sentence was excised the underlying conviction would still lead to a criminal history point.

The trial court denied Appellant's objection. The trial court held that Appellant was properly assessed the criminal history point because the 1995 conviction would still lead to a criminal history point even after the unconstitutional portion of the sentence was excised.

Issue

Whether the district court erred in including Appellant's 1995 convictions in calculating his criminal history category after excising the unconstitutional portion of the sentence.

Appellant's Argument

Appellant's argument relies on a previous decision by the Tenth Circuit in United States v. Toalse-Cousins. The defendant in Toalse-Cousins challenged a state court conviction on Sixth Amendment grounds with the purpose to establish eligibility for "safety valve" consideration. In addition, he was convicted of a misdemeanor without the assistance of counsel. The conviction was unconstitutional because it resulted in a suspended sentence that could have resulted in an actual deprivation of his personal liberty. Therefore, Appellant argues his misdemeanor conviction was unconstitutional and it should not be used to deprive him of possible "safety valve" consideration.

Respondent's Argument

Respondent asserts that when a defendant is charged with a misdemeanor violation, appointment of counsel is not required when no term of imprisonment is imposed. The defendant, however, must be offered appointed counsel when a term of imprisonment is imposed, even if it is suspended. If the defendant receives a suspended sentence and no counsel is appointed, the rule is violated and the sentence is unconstitutional. Respondent argues that after the unconstitutional portion of the sentence is excised, the underlying conviction is still valid and qualifies for one criminal history point.