U.S. v. Wilson, 89-5397

• Citation: 901 F.2d 1000
• Decision Date: 21 May 1990
• Docket Number: No. 89-5397,89-5397
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Earl WILSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1000

901 F.2d 1000

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Earl WILSON, Defendant-Appellant.

No. 89-5397.

United States Court of Appeals,

Eleventh Circuit.

May 21, 1990.

Michael J. O'Kane, pro bono, Ft. Lauderdale, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Donna Bucella, Harriett R. Galvin, Linda Collins-Hertz, David I. Mellinger, Asst. U.S. Attys., Ft. Lauderdale, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, RONEY ^*, Senior Circuit Judge, and PITTMAN ^**, Senior District Judge.

PITTMAN, Senior District Judge:

Defendant Rodney Wilson appeals the sentence imposed upon him under the Federal Sentencing Guidelines. Wilson contends that the district court erred in using his DUI offenses in calculating his criminal history category. Wilson also contends that the special assessment levied against him is unconstitutional. We affirm.

Defendant Wilson was arrested, along with three other defendants, at the Holiday Inn in North Miami Beach, Florida on January 26, 1988, after purchasing approximately five kilograms of cocaine from an undercover FBI agent. Wilson, who had put up enough money to purchase two kilos for himself, was also acting as a representative for others who desired to purchase cocaine.

On October 17, 1988, Wilson plead guilty to count two, of a two-count indictment, charging possession with intent to distribute at least five kilos of cocaine. The defendant, who contested the amount of cocaine involved in the transaction, was subsequently allowed to withdraw his plea, and trial was scheduled for March 14, 1989. On March 15, 1989, following voir dire, but before any witnesses were sworn, Wilson pled guilty to conspiracy and to possession with intent to distribute less than five kilos of cocaine.

On April 19, 1989, at a sentencing hearing, Wilson again contested the amount of cocaine involved in the transaction relating to this case. The hearing was continued until April 21, 1989, at which time the court determined that because there was a sufficient amount of doubt regarding Wilson's possessory interest in the additional 2.9 kilograms of cocaine that he purchased for others, Wilson would be sentenced on the conspiracy and possession charges using a weight of only two kilograms. As a result defendant's base level was determined to be 28.

The court also considered adjustments for defendant's role in the offense and acceptance of responsibility. Because the role in the offense factor increased the offense level by two points, and the acceptance of responsibility decreased it by two, the adjustments cancelled out one another. Thus, the offense level remained at 28. ¹

In assessing the defendant's criminal history category, the court considered the following factors: two prior drug convictions, one a felony (3 points), and one a misdemeanor (1 point); a probation violation (2 points), and three DUI offenses (3 points). ² The court thus concluded that Wilson would be sentenced at offense level 28, criminal history category IV, with a guideline range of 110-137 months. Wilson was sentenced to 132 months imprisonment on each count, to be served concurrently. The court also imposed a five year period of supervised release after the completion of the sentence. In addition, the court imposed a $100 special assessment pursuant to 18 U.S.C. Sec. 3013.

The defendant has raised a number of arguments regarding the use of his DUI convictions in determining his criminal history category, but only two merit discussion. Wilson contends that the Sentencing Commission's treatment of DUI offenses is arbitrary and capricious in light of the Supreme Court's decision in Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). According to the defendant, under both the 1987 and 1988 versions of the Sentencing Guidelines, traffic or petty offenses are not to be used in calculating an individual's criminal history category, and DUIs are not treated as petty offenses. However, defendant states that the Supreme Court in Blanton held that DUIs may in fact constitute petty offenses; and claims that, in not considering the impact of the Blanton decision on the guidelines, the Sentencing Commission has acted arbitrary and capricious.

Under the Sentencing Guidelines, minor traffic violations are specifically excluded from the factors the court can consider in its criminal history calculations. DUI convictions however, are not deemed minor traffic infractions within the meaning of U.S.S.G. Sec. 4A1.2(c), Comment. (n. 5).

Despite the defendant's arguments to the contrary, the Supreme Court's holding in Blanton did nothing to necessitate a reexamination of this section. In Blanton, the Supreme Court examined the narrow issue of whether there is a constitutional right to a trial by jury for persons charged under Nevada law with driving under the influence of alcohol. Blanton, --- U.S. at ----, 109 S.Ct. at 1289, 103 L.Ed.2d at 552. The Court held that the Sixth Amendment right to a jury trial is unavailable to persons charged with a first offense of driving under the influence of alcohol, under the Nevada Statute, which imposes a six month maximum prison term plus other nonprison penalties. In reaching its decision, the Court found that the Nevada legislature, in imposing the punishment for said offense, treated the offense as a "petty offense" as opposed to a "serious offense." The Court did not discuss, nor can its decision even be construed as discussing, the treatment of DUI offenses in the criminal history category of the Sentencing Guidelines. As a result, any argument that the Sentencing Commission has acted arbitrary and capricious in failing to consider the Blanton decision, is without merit.

The defendant next argues that in developing the Sentencing Guidelines, the Commission chose to use a criminal history scheme that looks to the length of the prior sentence imposed, rather than the nature of the offense; yet, the Commission ignored this philosophy in its treatment of DUI offenses. Contrary to the defendant's argument, the Guidelines' treatment of DUI offenses in the criminal history category is consistent with Congress' directive to the Sentencing Commission. In 18 U.S.C. Sec. 3553, Congress, in its directive to the Sentencing Commission, stated that sentences should be based upon both the nature and circumstances of the offense and the history and characteristics of the defendant. ³ The way that a DUI conviction is treated under the criminal history category depends in large part on whether the sentence is a misdemeanor or a felony. This is a clear indication that the length of the sentence is in fact taken into account. Moreover, to minimize the risk that a defendant's criminal history category may overrepresent the seriousness of the defendant's criminal history or the likelihood that the defendant may commit further crime, Sec. 4A1.3 allows a defendant to introduce evidence concerning the underlying conviction so that an accurate criminal history category can be set by the sentencing court. We therefore conclude that the Commission's treatment of DUI offenses accomplishes the goals set by congress.

The defendant's final argument is that the $100 special assessment imposed upon him, pursuant to 18 U.S.C. Sec. 3013, is an unconstitutional violation of the origination clause. ⁴ Although this issue has not been previously addressed by this circuit, at least seven other circuits have considered Section 3013's purpose in light of origination challenges. United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), cert. granted, --- U.S. ----, 110 S.Ct. 48, 107 L.Ed.2d 17 (1989); United States v. Newman, 889 F.2d 88 (6th Cir.1989); United States v. Herrada, 887 F.2d 524 (5th Cir.1989); United States v. Simpson, 885 F.2d 36 (3d Cir.1989); United States v. Griffin, 884 F.2d 655 (2nd Cir.1989); United States v. King, 891 F.2d 780 (10th Cir.1989); United States v. Tholl, 895 F.2d 1178 (7th Cir.1990). Only the Ninth Circuit, in United States v. Munoz-Flores, 863 F.2d 654, has determined that Section 3013's purpose is to raise revenue, thus violating the origination clause. We decline to follow the opinion expressed in United States v. Munoz-Flores, and join the majority of circuits in holding that 18 U.S.C. Sec. 3013 does not violate the origination clause.

The Tenth Circuit in United States v. King, provided an excellent analysis of the origination clause. The court stated that The origination clause provides that 'All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.' U.S. Const. art. I, Sec. 7, cl. 1. The reach of the origination clause, however, is restricted. In Twin City National Bank v. Nebecker, 167 U.S. 196 [17 S.Ct. 766, 42 L.Ed. 134] (1897), the United States Supreme Court held that 'revenue bills are those that levy taxes, in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.' The court determined that the test for whether a particular bill is a revenue bill rests upon the bill's 'main purpose.' Id. Thus, where the purpose of an act is 'to raise revenue to be applied in in meeting the expenses or obligations of the government,' Id., the act is a revenue measure subject to the origination clause. Where the main purpose of the act is other than raising revenue, it is not subject to challenge under the the origination clause. In Nebecker, the court court thus determined that a bill creating a national currency...