U.S. v. Howard

• Decision Date: 10 May 1993
• Docket Number: No. 92-3186,92-3186
• Citation: 991 F.2d 195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clinton HOWARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 195

991 F.2d 195

UNITED STATES of America, Plaintiff-Appellee, v. Clinton HOWARD, Defendant-Appellant.

No. 92-3186.

United States Court of Appeals, Fifth Circuit.

May 10, 1993.

Virginia Laughlin Schlueter (Court-appointed), John T. Mulvehill, Federal Public Defender, New Orleans, LA, for defendant-appellant.

Herbert W. Mondros, Greg G. Guidry, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, KING AND DUHE, Circuit Judges.

DUHE, Circuit Judge:

Appellant, Clinton Howard, appeals his conviction and sentence imposed after a jury convicted him for possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.

Background

On April 9, 1991, special agents with the Bureau of Alcohol, Tobacco, and Firearms ("BATF") received an anonymous call concerning drug activity at 618 N. Rocheblave St., New Orleans. The caller relayed information regarding crack cocaine and heroin trafficking and illegal possession of firearms by both the defendant and his brother, Wilson Martin. A computer check confirmed the tip's information regarding prior criminal convictions of both men. A confidential informant was dispatched to observe the location. The informant verified drug trafficking and weapons violations at that address. A search warrant for 618 Rocheblave was executed by BATF and local law enforcement on April 10, 1991.

During the search, Appellant Howard arrived at the residence. BATF Special Agent Riehl approached and questioned him. Riehl also observed a gold Lincoln Continental with a temporary plate parked on the street several houses away. The anonymous tip had described the car as Howard's, and the confidential informant had observed the car delivering suspected drugs. Upon question, Howard told Riehl that he was not driving the Lincoln and that his keys would not unlock the car. Riehl, however, requested the keys which did in fact unlock the Lincoln. Although initially he did not object to Riehl attempting to unlock the car, Howard denied agents permission to search the car. Rather than search the car at the scene, Riehl secured the car and obtained a search warrant prior to conducting a search. The search was conducted two days later and revealed approximately six grams of crack cocaine, a scale, and a temporary license plate issued to Howard.

In addition to the statements made to Riehl during the search of 618 N. Rocheblave, Howard contacted the BATF office prior to the search of his car and made additional statements. When he picked up his vehicle, Howard again made an incriminating statement to Riehl that he had recently acquired some money and was quitting the drug business because it was not profitable. Howard was not indicted until several days later.

Howard was indicted for possession with intent to distribute cocaine base. The district court denied his motion to suppress the items found in his car and his statements made to Special Agent Riehl. The court also denied a motion to dismiss the indictment based upon the constitutionality of the statute. A jury found Howard guilty.

In the presentence investigation report, it was determined that Howard was a career offender under § 4B1.1 of the Sentencing Guidelines. Howard objected to this determination, but the judge adopted the guidelines established in the presentence report. The judge sentenced Howard to 300 months in prison, four years supervised release, and a $50 special assessment. Howard appeals.

Discussion

I. Constitutionality of the Statute. Howard argues that 21 U.S.C. § 841 is unconstitutionally vague because it fails to define cocaine base. This Court has upheld the constitutionality of this statute in United States v. Thomas. ¹ Howard submits that because of unusual scientific testimony in his case by the Government's forensic chemist, the definition of cocaine base and cocaine hydrochloride are nearly identical, therefore precedent should not control in light of evidence which fails to distinguish between the two drugs. ²

The trial court held the statute constitutional, that the common usage doctrine articulated in Thomas applied, and that no other facts peculiar to this case warrant a different result. We agree.

Howard's argument has been squarely refuted by this and other circuits. ³ This Court has held that cocaine base is a unique substance which has a specific contemporary common meaning sufficient to appraise the defendant of the nature of the charge against him. Thomas, 932 F.2d at 1090. Additionally, the forensic chemist testified that the tests that she ran established that the substance found in the car was crack cocaine. ⁴

Howard also claims that the Government chemist's testimony indicated that the drug found in Howard's car could have been cocaine, not cocaine base, and therefore, he was entitled to a jury instruction for a lesser included offense. Federal Rule of Criminal Procedure 31(c) states that a defendant may be found guilty of a lesser included offense. Howard argues that under United States v. Browner, ⁵ he was entitled to a jury instruction on a lesser offense. He maintains that the elements of possession of cocaine are a subset of the elements of possession of cocaine base. Therefore, he argues that the trial court erred in refusing to instruct the jury that possession with intent to distribute cocaine was a lesser included offense. This argument misses the mark.

The indictment did not track the statute. It did not charge possession of a controlled substance. See 21 U.S.C. § 841 (1988). It charged possession of cocaine base. Therefore, if evidence had been presented that Howard possessed cocaine hydrochloride and not cocaine base, and if the jury had believed that evidence, then it would not have convicted. Because the indictment was narrowly drawn, Howard was not entitled to any other instruction.

II. Career Offender. Howard contends that he was incorrectly classified as a career offender. He concedes that he has two prior felony convictions as the guidelines require, however, he claims that the convictions were invalid for purposes of classification as a career criminal because he did not enter a valid guilty plea. He argues that the record in the state case fails to indicate that he knowingly waived his right to a trial by jury as required under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

In Louisiana state court in 1972, Howard plead guilty to three armed robberies, and the record indicates that he was advised of his "constitutional rights" but not specifically that he was advised of his right to a trial by jury. The state later attempted to prosecute Howard as a multiple offender, but withdrew the multiple offender bill when Howard contended the priors were constitutionally insufficient to sustain an enhanced sentence as a multiple offender. These convictions were not, however, ruled constitutionally invalid. The Louisiana court simply granted the State's motion to withdraw the bill. Howard concludes that this Court should not count the convictions because the state did not consider the pleas constitutionally valid.

The district court rejected Howard's contention holding that: (1) Howard was advised of his constitutional rights, (2) this Court is not bound by a decision of the state court regarding dismissal of the multiple offender bill, ⁶ and (3) Howard failed to meet his burden of proof. We agree.

Section 4B1.1 of the Sentencing Guidelines requires that the defendant have at least two prior convictions of either a controlled substance offense or a violent crime to be classified as a career criminal. U.S.S.G. § 4B1.1 (Nov. 1, 1992). Sentencing Guideline § 4A1.2 Commentary, Application Note 6 disallows the use of invalidated convictions. Note No. 4 to § 4B1.2 states that the provisions of § 4A1.2 are applicable to the counting of convictions under § 4B1.1. See United States v. Marshall, 910 F.2d 1241, 1245 (5th Cir.1990), cert. denied, 498 U.S. 1092, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). The burden of proving the constitutional invalidity of a prior conviction rests on the defendant. United States v. Newman, 912 F.2d 1119 (9th Cir.1990); see U.S.S.G. § 4A1.2, comment. (n. 6) (Nov. 1, 1992); United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992).

This court will uphold a sentence unless it was imposed in violation of law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable. United States v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (citations omitted). Application of the guidelines is a question of law subject to de novo review. United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.); cert. denied, --- U.S. ----, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992). Factual findings by the trial court are reviewed for clear error. Id. Therefore, whether a prior conviction is covered under the sentencing guidelines is also reviewed de novo, while factual matters concerning the prior conviction are reviewed for clear error. Newman, 912 F.2d at 1123. The voluntariness of a guilty plea is a question of law reviewed de novo. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983).

Because Appellant's previous convictions have never been ruled constitutionally invalid, the district court had the discretion to allow or disallow his challenge to these prior convictions at sentencing. ⁷ The district court allowed Howard to challenge these prior convictions. We conclude after a careful review of the record that the court did not err in determining that Howard had not met his burden of proof.

Under Boykin, the only federal requirement is that a plea be entered knowingly and voluntarily. B...