U.S. v. McGlocklin

• Decision Date: 17 September 1993
• Docket Number: No. 91-6121,91-6121
• Citation: 8 F.3d 1037
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry Roscoe McGLOCKLIN, Defendant-Appellee. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1037

8 F.3d 1037

62 USLW 2230

UNITED STATES of America, Plaintiff-Appellant, v. Larry Roscoe McGLOCKLIN, Defendant-Appellee.

No. 91-6121.

United States Court of Appeals Sixth Circuit.

Reargued Dec. 9, 1992.

Decided Sept. 17, 1993.

Darryl Stewart, Asst. U.S. Atty., Ernest W. Williams, U.S. Atty., Nashville, TN, Joseph C. Wyderko (argued and briefed), Dept. of Justice, Crim. Div., Appellate Section, Washington, DC, for plaintiff-appellant.

Thomas W. Watson, Asst. Federal Public Defender (argued and briefed), Nashville, TN, for defendant-appellee.

Gregory D. Smith (briefed), Richardson & Richardson, Clarksville, TN, for Nat. Ass'n of Crim. Defense Lawyers, Amicus Curiae.

Before: MERRITT, Chief Judge; and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

We voted to consider this case en banc to decide whether a defendant may challenge at sentencing a prior state court conviction not previously ruled invalid which would result in a longer sentence if included within the sentencing guidelines calculus. ¹ We conclude that a narrow window of challenge to prior convictions is available, and in this opinion we set forth the considerations that should inform a sentencing court's disposition of such a challenge. As to defendant McGlocklin's sentence, we conclude that on the evidence presented his prior convictions were valid, and we remand for resentencing.

I.

McGlocklin pleaded guilty to two counts of bank robbery in the United States District Court for the Middle District of Tennessee. Defendant had 17 prior state convictions. Several of these prior convictions were not included in the calculation of defendant's sentence because some were outside of the time period allowed, U.S.S.G. § 4A1.2(e), and some resulted from proceedings where defendant was not represented by counsel. However, two of his prior Tennessee state convictions that were counted were for crimes of violence: a conviction for bank robbery pursuant to a guilty plea and a conviction for second-degree burglary pursuant to a nolo contendere plea. The presentence report placed defendant in the career offender category due to these two prior convictions. Defendant objected to the classification as a career offender, arguing that his predicate state convictions were invalid because the pleas were not taken in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Mackey, 553 S.W.2d 337 (Tenn.1977). The district court sustained McGlocklin's objections and did not sentence him under the career offender classification. Instead of a sentencing range of 168-210 months as calculated in the presentence report, the district court computed a range of 77-96 months, sentencing McGlocklin to the maximum 96 months. The government appealed.

II.

Under the United States Sentencing Guidelines, prior convictions are used to compute a criminal history score or to place a defendant in the category of a career offender. A defendant's criminal history category is plotted against the offense level for the crime charged to yield the applicable sentencing range. Section 4A1.1 of the guidelines provides the method for calculating a defendant's criminal history score, while section 4B1.1 defines a career offender. ² The definitions and instructions for computing a defendant's criminal history contained in section 4A1.2 apply to calculations under both sections 4A1.1 and 4B1.1.

Much of the argument in this case revolves around the 1990 amendments to the sentencing guidelines, specifically to Application Note 6 and the background note of section 4A1.2. The earlier version of Application Note 6 read in full:

Invalid Convictions. 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. Any other sentence resulting in a valid conviction is to be counted in the criminal history score. Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score. Also, if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score. Nonetheless, any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 if it provides reliable evidence of past criminal activity.

U.S.S.G. § 4A1.2, comment. (n. 6) (1989) (emphasis added). Every court that addressed the issue, including this one, concluded that this application note allowed a district court to entertain challenges to presumptively valid (not previously invalidated) state convictions at sentencing. United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991); United States v. Bradley, 922 F.2d 1290, 1297 (6th Cir.1991); United States v. Unger, 915 F.2d 759, 761 (1st Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991); United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456, 463 (4th Cir.1990), cert. denied, 498 U.S. 1116, 111 S.Ct. 1028, 112 L.Ed.2d 1109 (1991); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989); see also United States v. Cornog, 945 F.2d 1504, 1511 (11th Cir.1991) (collecting cases).

Effective November 1, 1990, Application Note 6 was amended to read:

Reversed, Vacated, or Invalidated Convictions. 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. Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 (Adequacy of Criminal History Category).

U.S.S.G. § 4A1.2, comment. (n. 6) (1990) (emphasis added). Thus, the current version of Application Note 6 to section 4A1.2 makes clear that a district court is not to count convictions which have been previously ruled invalid. The application note does not address whether a conviction that has not been previously ruled invalid can be challenged at sentencing. However, when the Sentencing Commission amended Application Note 6 to section 4A1.2, it added a background note to that same section which 13 reads: "The 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). The Sentencing Commission explained that the amendment "clarifies the circumstances under which prior sentences are excluded from the criminal history score." U.S.S.G.App.C, amend. 353.

III.

The Supreme Court has not addressed the impact of these amendments, ³ but we are not the first circuit to consider the issue. The Second, Third, and Fifth Circuits ⁴ have read the background note to recognize the authority of federal district courts to entertain first-instance collateral attacks on presumptively valid prior state convictions at sentencing. United States v. Brown, 991 F.2d 1162 (3d Cir.1993); United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992); United States v. Jakobetz, 955 F.2d 786, 805 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992). In Jakobetz, the court summarized the effect of these guidelines:

While defendants may always present the sentencing court with evidence that another court has ruled their prior convictions invalid and hence unsuitable for consideration as part of the criminal history score at sentencing, the court also retains discretion to determine whether a defendant may mount an initial challenge to the validity of such convictions.

Jakobetz., 955 F.2d at 805.

The First, Fourth, Eighth, and Eleventh Circuits have concluded that sentencing courts are required to entertain at least some kinds of attacks on prior convictions and that the authorization for such examinations comes not from the sentencing guidelines but from the Constitution. United States v. Isaacs, No. 92-2068, 1993 WL 210537, 1993 U.S.App. LEXIS 14892 (1st Cir. June 22, 1993); United States v. Byrd, 995 F.2d 536 (4th Cir.1993); United States v. Elliott, 992 F.2d 853 (8th Cir.1993); United States v. Roman, 989 F.2d 1117 (11th Cir.1993) (en banc ). In Roman, the first case to take this approach, the defendant objected to the use of a prior conviction because it was based on an unconstitutional guilty plea. Defendant alleged that the plea was not made knowingly and intelligently because he does not speak English and there was no interpreter at the plea hearing. The only proof offered to support his claim was a summary of the state proceedings. After concluding that "[n]o language now in Note 6 authorizes collateral review," id. at 1119, the court explained that the background comment "recognizes that--apart from the sentencing guidelines--the Constitution bars federal courts from using certain kinds of convictions at sentencing." Id. The court concluded that the Constitution requires a sentencing court to review a prior conviction only when a defendant "sufficiently asserts facts that show that an earlier conviction is 'presumptively void'...." Id. at 1120. Explaining that the number of convictions that could be termed "presumptively void" is small, the court held that the evidence offered to support defendant's challenge was insufficient to warrant a hearing.

The First Circuit expressly followed the approach adopted by the Roman court. Isaacs, 1993 WL 210537, 1993...