United States v. Freddie Lee Thomas

20 F.3d 817, 1994 U.S. App. LEXIS 4236, 1994 WL 67986

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 8, 1994
• Docket: 92-2112
• Status: Published

Opinions

HANSEN, Circuit Judge.

In this case, we are asked to decide whether a district court may consider a constitutionally valid but uncounseled prior misdemeanor conviction when it determines a defendant’s sentence for a subsequent conviction under the United States Sentencing Guidelines. We hold that a district court may do so consistent with the Sixth Amendment right to counsel.

I.

Freddie Lee Thomas was convicted by a jury of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The one-count indictment charged that Thomas knowingly possessed a firearm which had been transported in interstate commerce and that Thomas had previously been convicted of burglary in the second degree and of robbery in the second degree.

After Thomas’s conviction, a probation officer prepared a Presentenee Report (PSR). In computing Thomas’s criminal history category, the probation officer scored several prior convictions he had acquired, including a misdemeanor charge for carrying a concealed weapon, a charge to which Thomas had pleaded guilty on August 7, 1985, and for which he had paid a $20 fine. See University City (Mo.) Ord. § 23-36. Thomas objected to that part of the PSR, stating that he was not represented by counsel in connection with that misdemeanor conviction. The misdemeanor conviction added one criminal history point to Thomas’s criminal history score. Based on the information in the PSR, the district court¹ determined that-Thomas’s offense level was 12 and that his criminal history score was 12, resulting in a criminal history category of V. Because criminal history category V is reserved for those defendants with a criminal history score of 10, 11, or 12 points, the inclusion of the one point for the misdemeanor conviction did not affect the determination of Thomas’s Guidelines range. He would have fallen in criminal history category V whether that conviction was scored or not. As a result, Thomas’s Sentencing Guidelines range was 27-33 months. See U.S.S.G. Ch. 5, Pt. A (sentencing table). The district court sentenced Thomas to a 33-month term of imprisonment, to be followed by a two-year term of supervised release, and ordered 'him to pay a special assessment in the amount of $50.00. On appeal, Thomas challenges only his sentence.

A three-judge panel of this court initially affirmed the district court’s sentence in a two-to-one decision. See United States v. Thomas, No. 92-2112, 1993 WL 105111 (8th Cir. Apr. 7, 1993) (unpublished), vacated, (8th Cir. May 20, 1993) (unpublished order). After Thomas sought rehearing en bane, the court granted rehearing en banc and vacated the panel’s opinion. Because the panel’s opinion has not been published in the Federal Reporter, we have appended a copy to this opinion.

Upon rehearing en banc by all active judges, we affirm the sentence imposed by the district court and hold that a district court may consider an otherwise constitutionally valid prior uncounseled misdemeanor conviction when determining a sentence for a defendant for a subsequent conviction under the Sentencing Guidelines.

II.

The government argues that Thomas’s sentence is not reviewable because the inclusion of the prior uneounseled misdemeanor conviction did not affect Thomas’s Guidelines range. Our jurisdiction over this appeal is defined by statute:

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range ...; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a). Subsections (a)(3) and (a)(4) plainly do not apply, and subsection (a)(2) does not apply because Thomas does not allege an incorrect application of the Guidelines.² Rather, Thomas alleges that he was sentenced in violation of the Constitution. Thus, we reinstate part II of the panel’s opinion, see infra at App. 827-28, and conclude that we have jurisdiction to review Thomas’s sentence.

III.

Although Thomas concedes that his prior uncounseled misdemeanor conviction is itself constitutionally valid and does not collaterally attack it, he argues that his present 33-month sentence is invalid because the sentencing court included the constitutionally valid but uncounseled misdemeanor conviction when calculating his criminal history category. Thomas also concedes that even if the sentencing court had not included the valid but uncounseled misdemeanor, his criminal history score would be an 11 and his criminal history category would have remained at V, resulting in the same 27- to 33-month range. The implication is, however, that if the sentencing court had not considered the uncounseled misdemeanor, Thomas may have received a sentence that was not at the top of the 27- to 33-month Guidelines range. The government urges us to affirm the district court.

A.

Before we address Thomas’s argument, we will pause to consider whether addressing it is necessary. “Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985); see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Cf. McCurry v. Tesch, 824 F.2d 638, 640 (8th Cir.1987) (“statutes and court orders [should be] interpreted, if possible, to avoid constitutional issues”). Thus, we will first ask whether the district court in fact sentenced Thomas in reliance on his uncounseled misdemeanor conviction. We will do so under the assumption that Thomas has a right to a sentence that is not based on that conviction. If the district court did not impose a sentence that violates the right we assume to exist, we need not decide whether the right actually exists.

Thomas argues that the district court violated his Sixth Amendment right to counsel because the district court considered his prior uncounseled misdemeanor conviction when it imposed sentence. See United States v. Norquay, 987 F.2d 475, 482 (8th Cir.1993).

Thomas’s prior uncounseled misdemeanor conviction was described in paragraphs 12-14 of the PSR. The district court overruled Thomas’s objections to these paragraphs on the ground that U.S.S.G. § 4A1.2, comment, (backg’d.), expressly provides that uncoun-seled misdemeanor convictions for which no imprisonment was imposed should be included in the criminal history score. (Tr. at 133-34.) Furthermore, in an addendum to the PSR, the probation officer noted that a departure was warranted for the reason that Thomas was only one criminal history point away from the next highest criminal history category. The district judge sustained in part Thomas’s objections to the PSR’s addendum by stating that he would not depart. (Tr. at 139.)

Because Thomas’s prior uneounseled misdemeanor conviction was before the district court when it imposed sentence, and because we find no indication that the district court did not consider it, we must conclude that Thomas’s sentence is based in part on his prior uneounseled misdemeanor conviction. If Thomas has a right to a sentence that is not based on his prior uneounseled misdemeanor conviction, then he was sentenced in violation of law.

We will proceed to address Thomas’s argument that he has a right to a sentence that is not based on his valid but uneounseled prior misdemeanor conviction.

B.

Thomas’s argument is -based on the Sixth Amendment to the Constitution. “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” ,U.S. Const, amend. VI. Before 1972, the Supreme Court had enforced the right to counsel in eases where defendants were convicted of felonies. See, e.g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court applied the right to counsel to a misdemeanor case where the defendant was convicted of carrying a concealed weapon and was sentenced to 90 days in prison. The Court stated, “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Id. at 37, 92 S.Ct. at 2012. The Court further stated,

Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.

Id. at 40, 92 S.Ct. at 2014. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court made clear that a defendant is not entitled to counsel merely because the criminal charge he faces authorizes imprisonment. Rather, the right to counsel applies only when the defendant actually is sentenced to prison. Id. at 373-74, 99 S.Ct. at 1162 (stating that Argersinger “warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel”).

In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam), the Supreme Court reversed the conviction of a defendant who was convicted of felony theft and sentenced to a prison term of one to three years. Baldasar’s theft would have been a misdemeanor punishable by not more than one year of imprisonment had it not been his second theft offense. His prior theft conviction was a statutory element of the second offense itself, as opposed to being only a sentencing factor, and it was introduced in evidence for the jury’s determination as to whether he was guilty of second-offense theft. Baldasar’s first conviction was uneounseled but was constitutionally valid under Scott because he had not been sentenced to prison for it. The Baldasar Court framed the issue as whether a prior uncoun-seled misdemeanor conviction that is constitutionally valid “may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.” Id. at 222, 100 S.Ct. at 1585. The Court concluded that Baldasar’s uneounseled misdemeanor theft conviction could not be used to convert his subsequent theft (which would otherwise have been a misdemeanor) into a felony. Id. at 224, 100 S.Ct. at 1586.

Baldasar’s precise holding is elusive because the five-justice majority did not unite behind a common rationale. The relatively short per curiam opinion simply recites the factual- and procedural background of the case and then announces, “For the reasons stated in the concurring opinions, the judgment is reversed....” Id. at 224, 100 S.Ct. at 1586. The five justices who comprised the majority issued three concurring opinions. Justice Stewart, joined by Justices Brennan and Stevens, issued a three-sentence concurring opinion. Justice Stewart reasoned that Baldasar’s imprisonment was inconsistent with Scott because Baldasar was imprisoned only because he had been convicted in a prior proceeding in which he did not have the benefit of counsel. Id. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring). Justice Marshall, also joined by Justices Brennan and Stevens, issued the longest of the three concurring opinions. After stating that he believed Scott was wrongly decided, he reasoned that, assuming Scott to be governing law, Baldasar’s uncounseled prior misdemeanor conviction “could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.” Id. at 225-26, 100 S.Ct. at 1587 (Marshall, J., concurring). Finally, Justice Blackmun issued a concurring, opinion stating that Balda-sar’s prior misdemeanor conviction would be unconstitutional under the rule that he proposed in his dissenting opinion in Scott.- Justice Blackmun reasoned that Baldasar’s prior uncounseled misdemeanor could not be used for any purpose because he believed that it was itself unconstitutional. Id. at 229-30, 100 S.Ct. at 1589 (Blackmun, J., concurring). Thus, while five justices voted to reverse Baldasar’s conviction, they did so for different reasons.³

Because of these divergent views, the courts of appeals have struggled to decipher Baldosar’s rule. For example, the Seventh Circuit has stated that Baldasar “provides little guidance outside of the precise factual context in which it arose.” Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984). Likewise, the Eleventh Circuit has stated that “the Supreme Court divided its votes in such a way that no clear rule is apparent.” McCullough v. Singletary, 967 F.2d 530, 533 (11th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1423, 122 L.Ed.2d 792 (1993). In slight contrast, the Tenth Circuit has stated that “the holding in Baldasar is Justice Black-mun’s rationale that an mvalid uncounseled conviction cannot be used to enhance a subsequent conviction.” Santillanes v. United States Parole Comm’n, 754 F.2d 887, 889 (10th Cir.1985) (emphasis added).

In the same context as this case, the Fifth Circuit has stated that Baldasar should be “limited to its particular factual scenario: ‘a prior uncounseled misdemeanor conviction may not [be] used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.’ ” United States v. Eckford, 910 F.2d 216, 220 (5th Cir.1990) (quoting Wilson v. Estelle, 625 F.2d 1158 (5th Cir. Unit A 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981)). The Eckford court thus affirmed a sentence imposed after the district court assessed the defendant two criminal history points for two uneounseled misdemeanor convictions. Id. at 217-18, 220.

Most circuit courts that have addressed this issue have followed Eckford. See United States v. Falesbork, 5 F.3d 715, 717-19 (4th Cir.1993); United States v. Nichols, 979 F.2d 402, 415-18 (6th Cir.1992), cert. granted, — U.S. —, 114 S.Ct. 39, 125 L.Ed.2d 788 (1993); United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993); see also United States v. Burroughs, 5 F.3d 192, 194 (6th Cir.1993) (holding that valid prior misdemeanor conviction may be used, consistent with Baldasar, to enhance Guidelines-based sentence because it “does not change the nature of the charge from a misdemeanor to a felony”). The Ninth Circuit, however, has applied Bal-dasar to prohibit upward departures from a Guidelines range if the departure is based on a prior uncounseled misdemeanor conviction. That court held, “any term of imprisonment imposed on the basis of an uncounseled conviction where the defendant did not waive counsel violates the Sixth Amendment under Baldosar.” United States v. Brady, 928 F.2d 844, 854 (9th Cir.1991). Likewise, in Norquay, a panel of this court followed Brady and held that prior uncounseled misdemeanor convictions may not, consistent with Baldosar, be a basis for an upward departure from the Guidelines range. Norquay, 987 F.2d at 482.

While the case before us does not involve a departure from the Guidelines range that everyone concedes was correctly determined with or without consideration of Thomas’s prior conviction, we now believe that Nor-quay misconstrued Baldosar. Norquay unjustifiably extended Baldosar to guard against any incremental increase in a defendant’s sentence based on a prior uncounseled misdemeanor conviction. Although some support for such a rule might be found in Justice Stewart’s and Justice Marshall’s concurring opinions, which speak in terms of an “increased term of imprisonment,” see Baldosar, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring); id. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring), the five-justice majority agreed on much less than that. Justice Blackmun voted to reverse only because he believed that Balda-sar’s prior misdemeanor conviction was invalid and unconstitutional ab initio; he did not join either Justice Stewart’s or Justice Mar-shah’s concurring opinion. Thus, no more than four justices, if any, approved a rule that might be construed to prohibit any incremental increase in punishment on the basis of a prior uncounseled misdemeanor.⁴

We believe that Baldosar prevents a constitutionally valid but uncounseled prior misdemeanor conviction from being used in a subsequent sentencing proceeding to imprison a defendant when he would not otherwise be- confined. We further are of the view that Baldosar has no application in a case (as here) where the prior uncounseled conviction played no part in determining the defendant’s guilt of the subsequent offense, and where (as here) a sentence to imprisonment is already required to be imposed for the subsequent offense -without regard to the prior conviction, and where (as here) the court is faced only with determining the length of the imprisonment already authorized by the statute for the subsequent offense. Stated another way, under Baldosar, one cannot be sent to jail because of a prior uncounseled misdemeanor conviction, either upon the initial conviction or because of the conviction’s later use in a subsequent- sentencing, but if the subsequent sentence to imprisonment is already required as a consequence of the subsequent crime, the prior conviction may be used as a factor to determine its length. It must be remembered that the “increased term of imprisonment” that the justices were concerned about in Baldosar was the one that resulted from the statutory conversion of the second theft offense from a misdemeanor to a felony with a tripling of the imprisonment because of the very existence of the prior uneounseled misdemeanor. Such is not the case here. Thomas’s offense was a felony to begin with, and it remained a felony even when the prior conviction was scored for criminal history purposes.

Our present reading óf Baldosar is consistent with Baldosar’s lineage. The four opinions comprising the majority in Baldosar rely exclusively on Gideon v. Wainwright, Argersinger v. Hamlin, and Scott v. Illinois. This line of cases ensures that a defendant will not be convicted and imprisoned without the assistance of counsel. A defendant who faces the prospect of being put in prison because he has a prior misdemeanor conviction will be protected from imprisonment by Baldasar unless (1) he is represented by counsel in the present proceeding and (2) he was represented by counsel in the prior proceeding. Baldasar thus represents a modest and sensible extension of Scott.

Circuit court opinions that have construed Baldasar to prohibit any incremental increases in imprisonment rely on United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d 592 (1972) (holding that sentence based in part on mval-id uncounseled misdemeanor convictions violates Sixth Amendment). See Norquay, 987 F.2d at 482; Brady, 928 F.2d at 854. Although Tucker was decided prior to Baldasar, the various opinions of the Baldasar majority did not cite Tucker at all. This omission is natural when one considers that Baldasar and Tucker addressed different concerns that arose at different phases of those criminal trials and when one considers that Tucker involved a constitutionally mval-id prior conviction. The Baldasar Court fo-cussed on the guilt phase to ensure that the defendant was not convicted of an offense that required imprisonment because of his prior uncounseled (but valid) misdemeanor conviction. In contrast, the Tucker Court focussed on the sentencing phase to ensure that the defendant, who already was subject to some imprisonment, was not imprisoned longer because of his mvalid prior misdemeanor conviction.⁵ To link Baldasar and Tucker, as the Ninth Circuit did in Brady and our panel did in Norquay, is to create a new doctrine that contradicts Baldasar’s per curiam opinion.

We thus join the Fifth, Second, Sixth, and Fourth Circuits, which have construed Bal-dasar narrowly. We therefore conclude that Thomas’s constitutionally valid but uncoun-seled prior misdemeanor conviction was correctly used to determine his sentence in this case. Accordingly, we affirm the judgment of the district court.

1 . The Honorable Edward L. Filippine, Chief Judge, United States District Court for the Eastern District of Missouri.

2 . Under the Guidelines, a district court may consider "uncounseled misdemeanor sentences where imprisonment was not imposed." See U.S.S.G. § 4A1.2, comment, (backg’d.). The district court properly applied this section of the Guidelines. Furthermore, a district court imposing a sentence within the Guidelines range need not state reasons for a particular sentence so long as the width of the guideline range (i.e., the difference between the high and low ends of the range) is not greater than 24 months. See 18 U.S.C. § 3553(c)(1). Because the sentencing range in this case was only six months wide, Thomas cannot allege that the district court erred simply by failing to state reasons for its sentence.

3 . The Supreme Court has not yet revisited Balda-sar in any meaningful way since it was decided. The most revealing restatement of Baldasar's rule is enclosed within parentheses within a citation within a footnote; it says that a "court may not constitutionally use prior uncounseled misdemeanor conviction collaterally to enhance a subsequent misdemeanor to a felony with an enhanced term of imprisonment." United States v. Mendoza-Lopez, 481 U.S. 828, 841 n. 18, 107 S.Ct. 2148, 2156 n. 18, 95 L.Ed.2d 772 (1987). We note, however, that Baldasar and the issue before us are the subject of a case presently pending before the Supreme Court. See Nichols v. United States, - U.S. -, 114 S.Ct. 39, 125 L.Ed.2d 788 (1993) (granting petition for writ of certiorari). We file this opinion today so that Thomas's appeal can be decided before it becomes moot.

4 . Although Baldosar's per curiam opinion has full force, it expressly refers to the reasoning of the concurring opinions. Interpretive rales that apply to cases decided by plurality opinions help us in this situation. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....' " Marks v. United States, 430 U.S. 188, 193, 97 S.Ct 990, 993, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976) (plurality opinion)). The narrowest grounds on which a majority of Baldosar's concurring justices agree cannot be found in the concurring opinions of Justice Stewart and Justice Marshall. See Eckford, 910 F.2d at 219 n. 8 (using Marks to interpret Baldosar); Santillanes, 754 F.2d at 889 (same); Schindler, 715 F.2d at 344 n. 5 (same).

5 . Defendants also may receive some protection at the guilt phase of a criminal proceeding from mvalid prior convictions. Compare Lewis v. United States, 445 U.S. 55, 65-68, 100 S.Ct. 915, 920-22, 63 L.Ed.2d 198 (1980) (holding that invalid prior felony conviction may be used, consistent with Due Process Clause, to support conviction in subsequent proceeding), with Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 261-62, 19 L.Ed.2d 319 (1967) (holding that invalid prior conviction may not be used, consistent with Sixth Amendment, to support either conviction or sentence in subsequent proceeding). Again, Baldasar cited neither of these cases. However, Burgett has been used in an attempt to extend Baldasar to the sentencing phase of a criminal proceeding. See Nichols, 979 F.2d at 406-07 (Jones, J., dissenting in part). We reject the reasoning of the Nichols dissent on the ground that Burgett also seeks to prevent the collateral use of invalid prior convictions.