United States v. Lazaro Roman

989 F.2d 1117, 1993 U.S. App. LEXIS 9959, 1993 WL 114409

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 30, 1993
• Docket: 90-9084
• Status: Published

Opinions

PER CURIAM:

In this case, we must decide whether U.S.S.G. § 4A1.2 gives sentencing courts the discretion to examine the constitutionality of earlier state convictions for the first time in calculating a defendant’s criminal history. The answer is “no.”

Appellant Lazaro Roman pled guilty to conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In Roman’s presentence report (PSI), the probation officer gave Roman a criminal history score of 3, based on a 1987 Florida burglary conviction. See U.S.S.G. § 4Al.l(a). These three points increased the applicable guideline range. See id. at Ch. 5, Pt. A.

Roman’s counsel objected that the 1987 Florida conviction should not have been counted because, it was based on an unconstitutional guilty plea. The theory was that Roman's plea was not knowing and intelligent because he does not speak English and had no interpreter at the state plea hearing. But counsel failed to support these contentions with affidavits (even one from Roman) or transcripts, offering instead only a brief summary of the state proceedings. Similar in appearance to a clerk’s docket entries, this summary seems to be a copy of four pages of the Circuit Court of Dade County, Florida records. It shows nothing about whether an interpreter was present or not.

The district court refused Roman’s request to hold an evidentiary hearing on the validity of the state conviction.¹ The court explained it could not “start wiping convictions off of the record,” but noted its decision might be different if it were dealing with a conviction that was not “presumptively valid.” R2-1. When pressed, defense counsel told the sentencing judge that the only evidence known to counsel that supported Roman’s constitutional challenge to his Florida conviction was the summary of the state hearing.

On appeal, a panel of this court vacated Roman’s sentence and remanded his case for resentencing, concluding that section 4A1.2 gave the district court discretion to review the earlier state conviction. United States v. Roman, No. 90-9084 (11th Cir. May 7, 1992). We vacated the panel opinion, 968 F.2d 11 (11th Cir.1992), and now affirm the district court.

DISCUSSION

I.

U.S.S.G. § 4A1.2 specifies what convictions count in a defendant’s criminal history score. At the time of Roman’s indictment, Application Note 6 to section 4A1.2 read in part: “Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score.” U.S.S.G. § 4A1.2, comment (n. 6) (Nov. 1989). Before Roman’s sentencing, Note 6 was amended to read: “[Sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted.” U.S.S.G. § 4A1.2, comment (n. 6) (Nov. 1991). The same amendments also added a “Background” Comment, which says, “[t]he Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction.” U.S.S.G. § 4A1.2, comment (backg’d.).

Roman argues that, under these amendments, sentencing courts retain discretion to consider collateral challenges to state convictions.² But, the amended text of Note 6 is plain: under section 4A1.2, district courts can only exclude convictions that have already been ruled invalid. Nothing in Note 6, much less the guidelines themselves, authorizes district courts to question state convictions for other reasons.

Before Note 6 was amended, courts generally interpreted section 4A1.2 to allow defendants to challenge state convictions for the first time at sentencing. See, e.g., United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990); United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989). The 1990 amendments specifically deleted the language on which these courts relied, substituting a more restrictive reference to sentences “previously ruled invalid” (emphasis added). No language now in Note 6 authorizes collateral review.

The Background Comment does not change the Note’s meaning, but recognizes that — apart from the sentencing guidelines — the Constitution bars federal courts from using certain kinds of convictions at sentencing. See United States v. Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967). The Background Comment acknowledges that nothing said in the guidelines could remove a court’s authority to consider collateral challenges in such cases. But the guidelines add no independent power for collateral review.

II.

Roman next argues the Constitution required the district court to conduct a hearing on his Florida conviction, even if the guidelines did not.³ In general, collateral review of state convictions must be through habeas corpus proceedings. But the Supreme Court has held sentencing courts may not rely on prior convictions that are “presumptively void.” Burgett, 389 U.S. at 115, 88 S.Ct. at 262 (examining an uncounseled state conviction); see Tucker, 404 U.S. at 449, 92 S.Ct. at 592 (same). So, when a defendant, facing sentencing, sufficiently asserts facts that show that an earlier conviction is “presumptively void,” the Constitution requires the sentencing court to review this earlier conviction before taking it into account.⁴

We believe that the kinds of cases that can be included in the “presumptively void” category are small in number and are perhaps limited to uncounseled convictions. But we have no need to define today what kinds of convictions fall into this category. Defense counsel’s proffer in this case was inadequate for a hearing.⁵ Defense counsel conceded that Roman’s constitutional claim was based on the state summary alone. And the summary—which did not affirmatively show the absence of an interpreter—was too indefinite to require the district court to act. Because the guidelines did not authorize the district court to examine the earlier state conviction, and defense counsel did not present enough to lay a factual foundation for collateral review on the grounds that the state conviction was “presumptively void,” the sentence imposed- by the district court is AFFIRMED.

1 . The court granted Roman’s other objection to the PSI, which was based on the amount of cocaine involved, and reduced Roman’s offense level from 32 to 28.

2 . The amendments became effective on November 1, 1990. Because Roman was sentenced after that date, we must consider them. See 18 U.S.C. § 3553(a)(5); United States v. Canales, 960 F.2d 1311, 1314 (5th Cir.1992) (amendments are procedural changes and do not raise Ex Post Facto concerns).

Other circuits have split on the meaning of these amendments. Compare United States v. Hewitt, 942 F.2d 1270, 1276 (8th Cir.1991) (amendments bar defendants from attacking state convictions for the first time at sentencing) with United States v. Jakobetz, 955 F.2d 786, 805 (2d Cir.1992) (courts retain discretion to allow collateral challenges), cert. denied, — U.S. -, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); Canales, 960 F.2d at 1315 (same). In our panel’s opinion, the panel relied on dicta contained in United States v. Cornog, 945 F.2d 1504 (11th Cir.1991), to hold that collateral review remains discretionary under the amendments. Roman, slip op. at 2357.

3 . Roman also claims that, regardless of our decision on collateral review, we must remand for resentencing because the. district court did not make a finding on acceptance of responsibility and did not follow the procedures set out in United States v. Jones, 899 F.2d 1097 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990). Roman raised neither of these issues before the panel or the district court; 'and he offers no compelling reason why we should consider them now.

4 . Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed.” 1690 (1948), also cited by the parties, is different. There a state judge seemingly sentenced an uncounseled defendant on the basis of earlier convictions that, in fact, had not occurred. The Court reversed the conviction on due process grounds. Id. at 740-41, 68 S.Ct. at 1255.

5 . The Chief Judge believes that, under both the Guidelines and cases such as Tucker, the only kinds of convictions that cannot be used at sentencing are those that suffer from a constitutional defect that undermines the presumption that the defendant in fact committed the underlying act. He also believes the phrase, "presumptively void,” is inconsistent with his proposed standard and only goes to the burden of proof.

In his concurrence, the Chief Judge talks about questions not before us. What the Chief Judge mainly writes about is whether the category of constitutionally infirm convictions that cannot be used at sentencing extends beyond the kinds of convictions at issue in Burgett and Tucker. He stresses conduct as distinct from convictions. He also is trying to develop some kind of test or rule for application in a wide variety of future cases. But to decide the case before us, we do not have to decide these hard questions of constitutional law. We are restrained because, under every legal standard that has been proposed to us (including several different definitions of "presumptively void” that we have considered), counsel’s proffer was factually too indefinite to trigger a hearing on the earlier conviction that is pertinent to the present case.