United States v. Gray

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2029



                          UNITED STATES,



                            Appellee,



                                v.



                         RICHARD A. GRAY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. D. Brock Hornby, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lynch, Circuit Judge.


James S. Hewes for appellant.



     Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief for

appellee.


May 27, 1999


BOWNES, Senior Circuit Judge.  In the morning hours of

April 22, 1998, Richard A. Gray and his compatriot Robert L. Echols

entered the Key Bank in Portland, Maine, to perpetrate a robbery. 

They did so to obtain money for more drugs, after staying up all

night drinking and taking drugs.  With Echols serving as lookout,

Gray delivered a note to the bank teller that read:  "I got a gun. 

Give me all the money and know [sic] one will get hurt."  The

teller asked Gray whether he was joking.  In response, Gray lifted

his shirt and pointed to a black object secured in his waistband. 

The teller explained that her station was closed and that she

needed a key to unlock the drawer.  After the teller disappeared

for what seemed an unusually long period of time in search of one,

Gray became unnerved and fled the scene.

  The two then improvised and decided to hold up a second

bank, believing their chances of success enhanced by all of the

police attention suddenly focused on Key Bank.  Gray entered a

Fleet Bank branch office, while Echols waited in a nearby cab. 

This time, Gray's note said:  "Give me all your money or I'll start

shooting."  Having learned his lesson, Gray also orally assured the

teller that he was not playing a prank.  The teller quickly stuffed

$11,907 into a paper bag and handed it to Gray.  On his way out,

Gray apologized to the teller "for putting her though this."  He

never actually had a gun during either episode.

  The pair was nabbed two days later, and each was charged

with two counts of violating the federal anti-robbery statute, 18

U.S.C.  2113(a).  Gray, whose appeal is at issue here, pleaded

guilty to both counts and was sentenced principally to 54 months in

prison.

  On appeal, he assigns error to three decisions by the

sentencing court, contending that:  (1) it should not have factored

into the sentencing calculus a prior conviction for which he had no

lawyer; (2) his actions during the Fleet Bank robbery did not

amount to a "threat of death" sufficient to trigger a two-point

enhancement; and (3) the court erred by considering a juvenile

adjudication for misdemeanor theft.  We uphold the sentence.

                                I

  Gray complains that the district court improperly used a

1997 misdemeanor theft conviction obtained without the benefit of

counsel to increase his criminal history score by one point.  He

says uncounseled convictions may not be considered in fixing a

sentence under the federal guidelines, and that the docket sheet

suffices to show that he was not represented by counsel at his plea

hearing.  In the alternative, he argues that the docket sheet

established a prima facie case that the conviction was defective,

and that the burden then shifted to the government to prove that

Gray either received a lawyer or waived his right to one. 

  In addressing this issue, the district court assumed that

Gray did not have counsel and held that he bore the burden of

showing that he did not waive his right to counsel, given the fact

he was sentenced only to time served.  The court concluded that

Gray failed to demonstrate that he had not waived his right to

counsel, and therefore relied on the conviction to calculate Gray's

criminal history score.  

  We begin with the essentials.  Once the government

establishes the fact of a prior conviction for sentencing purposes,

a "modest" burden satisfied here by the presentence report, "[t]he

burden then shifts to the defendant to establish that the earlier

conviction was constitutionally infirm . . . or otherwise

ineligible to be the basis for an upward adjustment."  United

States v. Unger, 915 F.2d 759, 761 (1st Cir. 1990); see also United

States v. Cordero, 42 F.3d 697, 701 (1st Cir. 1994).  Only if a

defendant meets this burden must the prior conviction be excluded

from the criminal history score.  Otherwise, the presumption of

regularity remains undisturbed, and the conviction must be counted. 

  The preliminary question is to what extent do the

guidelines forbid consideration of misdemeanor convictions obtained

without the benefit of counsel?  On this, U.S.S.G.  4A1.2(c) is

silent other than to provide generally that, with two categories of

exceptions not relevant here, "sentences for misdemeanor and petty

offenses are to be counted."  The rest of the guidelines and

pertinent commentaries give mixed signals.  On the one hand, the

guidelines do not confer on a defendant any right to collaterally

attack a prior conviction or sentence "beyond any such rights

otherwise recognized in law."  See  4A1.2 comment. n.6.  It is

also worth pointing out that the guidelines allow for consideration

of criminal conduct underlying any conviction not factored into the

criminal history score pursuant to  4A1.3 if the initial score

does not adequately reflect an individual's criminal history or

propensity to commit future crimes.  See id.  

  On the other hand, the related background commentary does

say that "prior sentences, not otherwise excluded, are to be

factored into the criminal history score, including uncounseled

misdemeanor sentences where imprisonment was not imposed."  By

negative implication, this language may be taken to mean that an

uncounseled misdemeanor offense is to be counted when it did not

result in jail time, but generally may not be counted where it led

to a prison term.  See United States v. Ortega, 94 F.3d 764, 770-71

(2d Cir. 1996) (interpreting "section 4A1.2 [to] exclude[] from

criminal history computations all uncounseled misdemeanor sentences

of imprisonment").  And, whatever the guidelines may or may not

say, the case law is reasonably clear that a court may not fix a

sentence based in part on an uncounseled conviction that resulted

in incarceration.  The Sixth and Fourteenth Amendments have been

interpreted to say that an individual may not be actually sentenced

to a term of imprisonment without being afforded the opportunity to

seek the advice of counsel, and that a conviction later determined

to be invalid cannot ordinarily be used to determine a future

sentence.  See Scott v. Illinois, 440 U.S. 367, 373-74 (1979),

affirmed in Nichols v. United States, 511 U.S. 738, 746 (1994)

(drawing line "between criminal proceedings that resulted in

imprisonment, and those that did not"); Burgett v. Texas, 389 U.S.

109, 115 (1967) (Sixth Amendment forbids use of uncounseled

conviction "either to support guilt or enhance punishment for

another offense"); see also United States v. Tucker, 404 U.S. 443,

447-49 (1972).  

  We need not definitively establish whether and to what

extent uncounseled misdemeanors offenses may be counted, but

instead assume for the sake of argument that, under the sentencing

guidelines, a defendant would be entitled to exclude an uncounseled

misdemeanor conviction resulting in prison time.  Nevertheless,

Gray, who bears the burden of proof, has failed to show that he did

not knowingly waive the assistance of counsel at his 1997 plea

hearing. 

  In an attempt to convince the district court that his

prior conviction for theft was void for purposes of sentencing,

Gray proffered a copy of the docket sheet from the state court

sitting in the Division of South Cumberland that had accepted his

guilty plea and sentenced him (there appeared to have been no

effort made to obtain a transcript or explain why one could not be

procured).  The docket sheet shows that on February 26, 1997, the

same day of his arrest, Gray was charged with Theft by Unauthorized

Taking, a Class E offense, to which he pleaded guilty that very

day, and that the court sentenced him to 12 hours in jail, with

credit for time served, and ordered him to pay $10.00 in

restitution.  It does not indicate that an attorney ever entered an

appearance on his behalf.  The presentence report stated that

probation's review of the public records did not reveal whether

Gray had counsel on that occasion.  Hence, it appears that he

pleaded guilty without the benefit of a lawyer   a situation the

sentencing judge presumed to be the case as part of his analysis.

  Still, the record does not reflect whether or not Gray

chose to waive his right to counsel, a common enough occurrence

when a defendant is charged with a low level offense and is given

the possibility of walking out the courthouse doors a free man the

day of his arraignment in exchange for pleading guilty and

accepting a sentence of a small fine and time served.  See Unger,

915 F.2d at 761 (stating that defendant attacking validity of

conviction must show "that he lacked counsel at [a critical]

juncture and had not waived his right in such regard"); see also

United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998) ("the

defendant must present evidence sufficient to overcome the

presumption that there was a valid waiver of counsel"), cert.

denied, 119 S. Ct. 1094 (1999). 

  We find no fault in the sentencing judge's refusal to

draw the inferences from the docket sheet urged by Gray.  Not only

was the document silent on the critical questions, but Gray himself

did not testify at the sentencing hearing or file a sworn affidavit

to the effect that he was not afforded counsel.  Because a

defendant stands in the best position to offer a first-hand account

of the details of his own past legal proceedings, his silence can

be deafening.  See Parke v. Raley, 506 U.S. 20, 32 (1992) ("when

the plea was entered in another jurisdiction, the defendant may be

the only witness who was actually present at the earlier

proceeding"); Cordero, 42 F.3d at 701 (noting that defendant never

swore that he did not have a lawyer, only that government never

proved that he had one); United States v. Wilkinson, 926 F.2d 22,

28 (1st Cir. 1991) (same).  So it was here.

  Gray would add a new wrinkle, citing a line of cases

standing for the proposition that waiver of counsel may not be

presumed from a silent record.  See, e.g., Burgett, 389 U.S. at

114-15.  He wishes us to extrapolate from these opinions a rule

that would shift the burden back to the government at some point to

show that the defendant either was afforded counsel or waived that

right.  But Parke v. Raley, 506 U.S. 20, forecloses his argument.

  In Parke, a state prisoner filed a habeas petition

seeking vacatur of a state court sentence that had been enhanced

based on a prior conviction on the ground that his guilty plea,

upon which the earlier conviction rested, had not been entered

knowingly and intelligently.  The Court held that "the 'presumption

of regularity' . . . attaches to final judgments, even when the

question is waiver of constitutional rights."  Id. at 29.  Turning

to the facts of the case at hand, the Court said that the

petitioner could not demonstrate that a prior conviction was

constitutionally defective by simply relying on the unavailability

of a transcript.  In reaching its conclusion, the Court

distinguished Boykin v. Alabama, 395 U.S. 238 (1969), which holds

that the government must ordinarily prove that a guilty plea was

knowing and voluntary, saying: 

    On collateral review, we think it defies logic

  to presume from the mere unavailability of a

  transcript (assuming no allegation that the

  unavailability is due to governmental

  misconduct) that the defendant was not advised

  of his rights.  In this situation, Boykin does

  not prohibit a [subsequent] court from

  presuming, at least initially, that a final

  judgment of conviction offered for purposes of

  sentencing enhancement was validly obtained.  



506 U.S. at 30.  The Parke Court also explicitly rejected the very

argument made by Gray, that under Burgett "every previous

conviction used to enhance punishment is 'presumptively void' if

waiver of a claimed constitutional right does not appear from the

face of the record."  Id. at 31.  In so doing, the Court limited

that decision to its narrow historical context:  because the prior

plea at issue there was entered before a federal constitutional

right to counsel had been recognized, it was reasonable to then

presume from the silent record "that he had not waived a right he

did not possess."  Id.  The implication for us, of course, is that

it is not at all unreasonable to assume from a near-empty record

that Gray knowingly waived his right to counsel and a jury trial in

1997 when he was offered a sweet deal.

  Although Parke was a habeas case and not a sentencing

case, for these purposes this is a distinction without a

difference.  See id. at 29-30 (stating that presumption of

regularity applies to other forms of collateral attack); see also

Allen, 153 F.3d at 1041 (applying Parke's reasoning to indirect

challenge to prior conviction at federal sentencing); United States

v. Gilbert, 20 F.3d 94, 100-01 (3d Cir. 1994) (same).  Both habeas

and sentencing proceedings may involve collateral attacks of sorts

on a presumptively valid prior criminal judgment.  The Court

obviously found the situations analogous as well, for it cited with

approval various court of appeals decisions "allocat[ing] the full

burden of proof to defendants claiming that an invalid guilty plea

renders a prior conviction unavailable for purposes of calculating

criminal history under the Sentencing Guidelines."  506 U.S. at 33

(citing sentencing cases).  In all events, we read Parke to

preclude Gray's suggested legal framework that would transfer the

burden back to the government based on a silent record.

  Gray made a tactical decision not to build a more robust

record or testify at the sentencing hearing and to instead rely

heavily upon a mistaken legal presumption.  Because his proof of a

defective conviction was inadequate, the sentencing judge properly

overruled his opposition to its inclusion in his criminal history

score. 

                                II

  We next consider whether the sentencing judge properly

invoked U.S.S.G.  2B3.1(b)(2)(F), which calls for a two-point

enhancement to the base offense level for robbery "if a threat of

death was made."  To the extent that we evaluate the trial court's

interpretation of the guidelines or its final determination to see

whether the facts here supported a finding that Gray made a threat

of death during the Fleet Bank robbery, we look at the issue de

novo, but any factual disputes entail clear error review.  See

United States v. Brown, 169 F.3d 89, 92 (1st Cir. 1999).  Before

the enhancement may be imposed, the record must support a finding

that a defendant's actions and statements, taken as a whole, "would

instill in a reasonable person, who is a victim of the offense, a

fear of death."  U.S.S.G.  2B3.1 comment. n.6. 

  Although Gray contends that his threat to the teller was

not sufficiently specific (he never actually used the precise

words, "I will kill you"), that argument is foreclosed by the 1997

amendment to this provision deleting the word "express," which

removed any ambiguity as to whether an implicit threat of death

would qualify.  It does.  See id. ("the defendant does not have to

state expressly his intent to kill the victim in order for the

enhancement to apply").  In any event, this Circuit had already

joined those pre-amendment courts which held that a defendant need

not explicitly communicate an intent to kill to trigger the

enhancement.  See United States v. Burns, 160 F.3d 82, 85 (1st Cir.

1998). 

  It remains only to be seen whether the present

circumstances satisfy the applicable test.  Gray says no, tethering

his argument mainly to a single fact: that he apologized to the

teller for inconveniencing her during the robbery.  From this, Gray

reasons that it was objectively unreasonable for the teller to fear

for her life.  But this remark does not save him from the force of

his actions.  The fact that Gray may have been genuinely reluctant

to use violence to achieve his ends does not alter the objectively

dangerous situation created by his conduct (or suggest that he

would not have shot to kill if necessary); he never once

communicated an unwillingness to use deadly force.  His

unmistakable threat to use a lethal weapon itself puts this case

well within the mainstream of death-threat scenarios.  See, e.g.,

Burns, 160 F.3d at 83 ("I have a gun!  Don't make me use it.");

United States v. Bomski, 125 F.3d 1115, 1118 (7th Cir. 1997) ("This

is a bomb. . . . give me all of your money" sufficient); United

States v. Figueroa, 105 F.3d 874, 875 (3d Cir.) ("I have a gun. 

Give me all the money" scrawled on napkin), cert. denied, 520 U.S.

1248 (1997); United States v. Hunn, 24 F.3d 994, 997 (7th Cir.

1994) (defendant mimicked pointing gun through his coat while

delivering note that said, "Give me all the money now.  I have a

gun.  No tricks, I'm watching."); United States v. Eaton, 934 F.2d

1077, 1079 (9th Cir. 1991) ("Give me all your money or I'll

shoot").  That he never actually had a gun in his possession made

no meaningful difference to the teller, for she could not have

discerned that from all the outward signs.  

  Gray mouthed an apology only after he had received the

money, as he exited the bank.  His expressed remorse therefore did

nothing to lessen, much less negate, the reasonable fear that

spurred the teller to cooperate in the first place.  By then, the

earlier threat of death was dissipating, and the encounter almost

over. 

  Given this fact pattern, we are satisfied the sentencing

judge did not err in assessing the two-point enhancement.

                               III

  Appellant's final claim does not detain us long.  As part

of its criminal history calculation, the sentencing court assessed

one point based on a 1994 juvenile adjudication for theft.  Relying

on a state law making certain juvenile adjudications (i.e., Class

D or lower) off-limits for future proceedings, 8 Me. Rev. Stat.

Ann. tit. 15,  3308 (Supp. 1998), Gray asserts that this provision

bars a subsequent federal court from considering the juvenile

disposition, and that the sentencing judge erred when it counted

his 1994 juvenile disposition.  We scrutinize this legal argument

in plenary fashion. 

  Title 15, section 3308.2 reads, in pertinent part: 

    In the case of a hearing open to the general

  public under section 330, the petition, the

  record of the hearing and the order of

  adjudication are open to public inspection,

  provided that any court subsequently

  sentencing the juvenile after the juvenile has

  become an adult may consider only murder and

  Class A, Class B and Class C offenses

  committed by the juvenile.



While the phrase "any court subsequently sentencing the juvenile"

is admittedly broad, it is by no means obvious that the Maine law

purports to prevent federal courts from considering juvenile

offenses in fixing sentences for violations of federal law.  We

find no hint at all in the language of the statute of an intent to

erect such a shield. 

  Even assuming that the provision directly conflicts with

federal law, that reading of the law would fall under the force of

the Supremacy Clause.  See U.S. Const. art. VI, cl. 2.  Whether a

particular offense falls within the federal guidelines' criminal

history framework "is a question of federal law, not state law."

Unger, 915 F.3d at 762.  States enjoy a broad range of flexibility

in choosing how they will treat those who offend their laws.  But

they may not dictate how the federal government will vindicate its

own interests in punishing those who commit federal crimes.  See

United States v. Carney, 106 F.3d 315, 317 (10th Cir. 1997); United

States v. Daniels, 929 F.2d 128, 130 (4th Cir. 1991).

  Finally, Gray seeks to invoke the Due Process Clause and

the Tenth Amendment to bar consideration of his juvenile

adjudication.  Yet Gray never once explicitly referred to either

ground before the district court.  The category of constitutional

claims he now asserts, not seasonably raised below, cannot be given

life for the first time in this forum.  See United States v.

Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997).  Seemingly resigned

to the fate of his due process claim, Gray maintains in his reply

papers that he adequately preserved his Tenth Amendment claim when

he told the sentencing judge that the matter involved federalism

and that "a Maine statute supercedes a federal guideline."  But

this explanation seemed geared toward his statutory argument.  More

important, a passing reference to our federalist system of

government hardly suffices to put the court on notice of a Tenth

Amendment challenge, especially where he did not object to the

court's failure to recognize the constitutional argument, if indeed

one was intended.  

  Affirmed.