U.S. v. Elliott, 92-2434

• Decision Date: 30 June 1993
• Docket Number: No. 92-2434,92-2434
• Citation: 992 F.2d 853
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David ELLIOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 853

992 F.2d 853

61 USLW 2747

UNITED STATES of America, Plaintiff-Appellee, v. David ELLIOTT, Defendant-Appellant.

No. 92-2434.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 10, 1992.

Decided May 11, 1993.

Rehearing and Rehearing En Banc Denied June 30, 1993.

Motion to Dismiss Appeal Denied June 30, 1993.

Thomas Cotter, St. Louis, MO, argued, for defendant-appellant.

Joseph Landolt, Asst. U.S. Atty., St. Louis, MO, argued, for plaintiff-appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

David Elliott pleaded guilty to a May 24, 1991, robbery of a bank in Silex, Missouri, in violation of 18 U.S.C. § 2113(a). Elliott's presentence report listed five California robbery convictions between 1973 and 1983, pending robbery and escape charges, and a long history of committing robberies while on parole. The PSR recommended that Elliott's base offense level be increased from 23 to 32 because the five prior convictions made him a "career offender" under U.S.S.G. § 4B1.1.

Elliott requested an evidentiary sentencing hearing, alleging that the prior convictions were constitutionally invalid because the state courts failed to conduct competency hearings before accepting a guilty plea or empaneling a jury, thus violating Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The district court, ¹ relying on our decision in United States v. Hewitt, 942 F.2d 1270 (8th Cir.1991), denied the hearing and sentenced Elliott as a career offender to 204 months in prison, within the twenty-year maximum provided in § 2113(a). Hewitt held that Application Note 6 to U.S.S.G. § 4A1.2, which provides that only those "convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted" in calculating a defendant's criminal history, requires that any prior conviction not invalidated prior to sentencing must be counted in determining career offender status.

On appeal, Elliott urges us to reconsider Hewitt, arguing that our construction renders Application Note 6 unconstitutional and has been rejected by other circuits. ² We are bound as a panel to follow Hewitt's interpretation of Application Note 6. See United States v. Saffeels, 982 F.2d 1199, 1209 n. 2 (8th Cir.1992). However, because of the apparent conflict in the circuits, we will expand upon Hewitt's discussion of this issue. In addition, because Hewitt did not consider the constitutional issue raised by Elliott, it is not stare decisis and therefore does not bind another panel of the court as to that issue. See 1B Moore's Federal Practice p 0.402, at I-36 (2d ed. 1993). Concluding nonetheless that Hewitt was correctly decided, we affirm.

I.

Whether a defendant may defeat career offender status by collaterally attacking his prior convictions at sentencing raises both statutory and constitutional issues. The statutory issues are whether Application Note 6 is consistent with the Sentencing Commission's statutory mandate and, if so, whether courts are bound to follow it. The constitutional issue, broadly stated, is whether Elliott must be permitted to challenge the constitutional validity of prior convictions used to enhance his Guidelines sentence. Because constitutional questions are to be avoided when possible, we address the statutory issues first.

A.

Congress has enacted numerous laws mandating longer sentences for those previously convicted of crime. On occasion, Congress has explicitly addressed the question whether prior convictions may be collaterally attacked at sentencing. For example, former 18 U.S.C. § 3575, which mandated increased sentences for those convicted of two or more prior felonies, provided that "[a] conviction shown on direct or collateral review or at the hearing to be invalid ... shall be disregarded...." 18 U.S.C.A. § 3575(e) (1985) (emphasis added). The emphasized language was held to require a sentencing court to examine the constitutional validity of prior convictions. See United States v. Burt, 802 F.2d 330, 332-33 (9th Cir.1986). Congress took a more restrictive approach in 21 U.S.C. § 851, which deals with prior convictions used to impose certain mandatory minimum drug sentences:

(e) No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.

On the other hand, Congress failed to address this question in 18 U.S.C. § 924(e), which mandates a minimum fifteen year sentence if a defendant with three prior violent felony convictions is convicted of unlawfully possessing a firearm. We have construed Congress's silence in § 924(e) as permitting defendants to collaterally attack prior convictions at their § 924(e) sentencing proceedings. See United States v. Day, 949 F.2d 973, 981 (8th Cir.1991); United States v. White, 890 F.2d 1033, 1035 (8th Cir.1989). Most courts have agreed, often citing constitutional concerns. See United States v. Paleo, 967 F.2d 7, 11-13 (1st Cir.1992); United States v. Hope, 906 F.2d 254, 263 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1640, 113 L.Ed.2d 735 (1991). But see United States v. Custis, 988 F.2d 1355, 1360-64 (4th Cir.1993).

The Sentencing Reform Act directs the Sentencing Commission to assure that repeat violent offenders are sentenced to a term of imprisonment "at or near the maximum term authorized" for the offense. 28 U.S.C. § 994(h). This statute is express authority for Guidelines that increase sentences based upon prior convictions, but § 994(h), like § 924(e), is silent as to whether the validity of those prior convictions may be collaterally attacked at sentencing. Left to our own devices, we would no doubt permit such collateral attacks, just as we permit collateral attacks under § 924(e). ³

But we have not been left to our own devices. The Sentencing Commission has amended Application Note 6 to provide that only convictions "previously ruled constitutionally invalid" are not to be counted. Amended Application Note 6 reflects the Commission's judgment that prior, unchallenged convictions demonstrate "the defendant's failure to learn from the application of previous sanctions and his potential for recidivism." U.S.S.G. App. C, No. 353. This judgment is consistent with the congressional intent reflected in § 994(h). As Senator Kennedy stated in introducing the bill:

Shrinking law enforcement resources must be targeted on incapacitating the tiny minority of criminals responsible for the overwhelming majority of violent crimes. Career criminals must be put on notice that their chronic violence will be punished by maximum prison sentences for their offenses, without parole.

128 Cong.Rec. 26,518 (1982). See also S.Rep. No. 225, 98th Cong., 2d Sess. 175, reprinted in 1984 U.S.C.C.A.N. 3182, 3358; Mistretta v. United States, 488 U.S. 361, 376 & n. 10, 109 S.Ct. 647, 657 & n. 10, 102 L.Ed.2d 714 (1989). We have previously noted that "the commentary accompanying each section of the guidelines reflects the intent of the United States Sentencing Commission," United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989), and "provides crucial supplementation" to the guidelines. United States v. Kelley, 956 F.2d 748, 756 (8th Cir.1992) (en banc). See also United States v. Anderson, 942 F.2d 606, 611-12 (9th Cir.1991) (en banc). Therefore, we are bound to follow the plain meaning of amended Application Note 6, which has been presented to Congress, see 55 Fed.Reg. 19,204-05, and is not inconsistent with § 4A1.2 itself. Compare United States v. Rodriguez-Morales, 958 F.2d 1441, 1445, 1448 & n. 3 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992).

Elliott, however, urges us instead to follow cases holding that the Sentencing Commission did not mean what it said in Application Note 6. In a background note to § 4A1.2, the Commission stated that it "leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction." Some courts, citing a need to reconcile Application Note 6 and this background note, have held that:

a court is only required to exclude a prior conviction from the computation of the criminal history category if the defendant shows it to "have been previously ruled constitutionally invalid"; otherwise, the district court has discretion as to whether or not to allow the defendant to challenge the prior conviction at sentencing.

Canales, 960 F.2d at 1315. We disagree.

The courts that treat this issue as discretionary appear to allow challenges at sentencing in all cases. Thus, they ignore the plain meaning of amended Application Note 6 on the basis of a less authoritative and more ambiguous background note. See § 1B1.7 (distinguishing notes that "interpret the guideline or explain how it is to be applied" from notes that "provide background information"). Moreover, the purported reconciliation is unnecessary because there is a plausible explanation of the background note that does not eviscerate Application Note 6. In the case of uncounseled misdemeanor convictions, which the background note explains are often to be counted, Application Note 6 arguably conflicts with Sixth Amendment decisions such as Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). In these circumstances, the Commission's background note does not signal a retreat from amended Application Note 6. It is simply a proper recognition that, when constitutional issues are implicated, the judiciary necessarily has the last word.

For these reasons, Hewitt correctly concluded that we must follow amended Application Note 6 except when the Constitution requires that a collateral attack at sentencing be permitted.

B.

Statutes that enhance sentences based upon prior convictions are clearly...