U.S. v. Canales

• Decision Date: 07 May 1992
• Docket Number: No. 91-5644,91-5644
• Citation: 960 F.2d 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank CANALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1311

960 F.2d 1311

UNITED STATES of America, Plaintiff-Appellee, v. Frank CANALES, Defendant-Appellant.

No. 91-5644.

United States Court of Appeals Fifth Circuit.

May 7, 1992.

On Petition for Rehearing and Suggestion

for Rehearing En Banc

July 8, 1992.

Nancy B. Barohn (Court Appointed), San Antonio, Tex., for defendant-appellant.

Bill Baumann, Asst. U.S. Atty., Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GARWOOD, and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Frank Canales (Canales) was convicted, pursuant to his guilty plea, of escaping from custody. At his sentencing hearing, Canales challenged a 1982 conviction listed as a prior offense in his Presentence Report (PSR). The district court determined that it could rely on the 1982 conviction as a prior offense, overruled Canales's objection, and sentenced him to twenty-four months in prison and three years of supervised release. Canales now appeals.

Facts and Proceedings Below

On March 6, 1974, Canales was convicted in the United States District Court for the Western District of Texas, San Antonio Division, of distribution of heroin and was sentenced to fifteen years in prison. On June 13, 1990, he was transferred to a halfway house in San Antonio to serve the remainder of his 1974 sentence. On August 30, 1990, Canales was reported to have escaped after failing to return to the halfway house. On December 6, 1990, a United States Marshal arrested Canales in San Antonio.

On February 7, 1991, Canales pleaded guilty to one count of escape from custody, in violation of 18 U.S.C. § 751(a). The PSR listed as a prior offense a 1982 Texas state court conviction for possession of cocaine, and increased Canales's criminal history score by three points because of this state conviction. ¹ Canales filed a written objection to the PSR's statement that the 1982 Texas court sentence ran concurrently with the 1974 federal sentence.

At his sentencing hearing in May 1991, Canales challenged the constitutional validity of the 1982 Texas conviction on the grounds that he did not get the benefit of his plea bargain. Canales introduced a copy of the state court judgment indicating that he had been sentenced January 19, 1982 to two years' imprisonment, to run concurrently with his 1974 federal sentence and ordering that he be delivered to the custody of the United States Marshal for the Western District of Texas. The judgment further stated, "Plea bargaining arrangement accepted by the defendant, followed by the Court and Appeal is denied." He also introduced a copy of a motion filed in the state case by his attorney therein dated March 5, 1982, seeking to withdraw the guilty plea or modify the sentence because Canales had not received the benefit of the plea bargain in that he was not allowed to serve his state and federal sentences concurrently in federal custody. Canales also introduced a copy of an amended state court judgment, dated August 11, 1982, to which the Texas court had added the following statement:

"Note: On this date, sentence above is hereby amended to delete the direction to deliver defendant to United States Marshal, Western District of Texas and to run this sentence concurrently with that of the United States District Court imposed 3/6/74 in SA 73CR283 due to written notification from the U.S. Department of Justice dated 1/22/82 that said concurrent sentences from state authorities should be disregarded as outside the proper jurisdiction of the state court."

In addition to this documentary evidence, Canales testified at the sentencing hearing that the 1982 plea bargain included an agreement that the sentences would run concurrently and that he would not have to serve any time in a Texas state prison. Canales stated that he served approximately 10 months on the state sentence in state custody before he was taken into federal custody. There was no evidence to the contrary of that presented by Canales.

After receiving this evidence, the district court concluded that it could rely on the 1982 conviction. The district court at one point during the hearing seemed to indicate that it believed it was foreclosed from considering the challenge to the 1982 conviction:

"Well, I guess my concern is that, I don't know. It might be an invalid conviction ... but if it is, this is not the proper form for it because there's nothing before this court, the conviction has not been overturned, has not been challenged in state court and this is a collateral attack on a, on a prior conviction that this court is reviewing only for the purposes of the sentencing guidelines to determine what their appropriate sentence should be. That, unless that conviction has been set aside, this court will follow that conviction or use that conviction because to this point it has not been challenged or set aside and this court is not in a position to make a ruling on that if it's, has not been properly challenged to this point."

Later in the sentencing hearing, however, the district court seemed to have considered and rejected the challenge to the 1982 conviction:

"The court is not convinced that there's sufficient evidence here for the court to ignore or disregard or overturn or not take into account the prior state conviction in the application of the Guidelines. On it's face, the court is satisfied that it's a valid conviction and the evidence presented is not enough to convince it otherwise or enough to convince the court that it should be ignored."

The district court overruled Canales's objection and sentenced him to 24 months' imprisonment, 3 years' supervised release, and a $50 mandatory assessment. Canales now appeals, challenging only his sentence.

Discussion

Canales's primary argument on appeal is that the district court erred in relying on a constitutionally invalid prior state conviction in computing his criminal history score. Based on Canales's 1982 Texas conviction, the district court added three points to his criminal history score, thus increasing his criminal history category from III to IV and his guideline range of imprisonment from twelve to eighteen months to eighteen to twenty-four months. Canales argues that his 1982 conviction should not have contributed to his criminal history score because it rested on a guilty plea which was constitutionally invalid since the state breached the agreement on which the plea was based.

The sentencing guidelines address whether constitutionally invalid prior convictions may be considered in computing a defendant's criminal history category. To determine the criminal history score of a defendant, the sentencing guidelines direct district courts to "[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month." U.S.S.G. § 4A1.1(a). The Commentary to § 4A1.2 (application note 6) explains:

"Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Also, 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)

The background note to that same section explicitly reserves "for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction." Id., comment. (backg'd.).

Until the Commentary was amended, effective November 1990, application note six stated that sentences should not be counted from convictions "which the defendant shows to have been constitutionally invalid." U.S.S.G. § 4A1.2, comment (n. 6) (November 1989). We have interpreted this previous version of the Commentary as allowing defendants to challenge prior convictions in their federal sentencing hearings. See United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); see also United States v. Mims, 928 F.2d 310, 312 (9th Cir.1991); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989). Under this body of case law, the burden of proving a conviction's constitutional invalidity rested with the person challenging the conviction.

The government argues, however, that the November 1990 amendment to application note 6 significantly narrows the scope of challenges to convictions used to calculate a defendant's criminal history category. In essence, the Government argues that a defendant can no longer attack a prior conviction for the first time in a sentencing hearing as was allowed under the earlier version of the guidelines; a defendant can only preclude the use of an earlier conviction in calculating his criminal history score if he has independently collaterally attacked that conviction and the conviction has been ruled invalid. In contrast, Canales contends that the background note makes clear that the defendant retains the right to challenge a prior conviction as constitutionally invalid at the sentencing hearing.

Before we address the Government's and Canales's substantive arguments, we note that an initial question exists as to whether the amended application note 6 even applies to Canales. The general rule in this Circuit is that "[t]he guideline provision in effect at the time of sentencing dictates which version of the guidelines we must apply." United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.) (citing 18 U.S.C. § 3553(a)(4)), cert. denied, --- U.S. ----, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991). Canales was sentenced in May 1991, after the amended application note 6 became effective, but committed the offense August 3, 1990. We have stated that "an increase in...