U.S. v. Brown

• Decision Date: 30 April 1993
• Docket Number: No. 92-7353,92-7353
• Parties: UNITED STATES of America, Appellee, v. Cherie BROWN a/k/a Cherie Sloan, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1162

991 F.2d 1162

61 USLW 2747

UNITED STATES of America, Appellee, v. Cherie BROWN a/k/a Cherie Sloan, Appellant.

No. 92-7353.

United States Court of Appeals Third Circuit.

Argued Jan. 29, 1993.

Decided April 30, 1993.

John S. Malik (Argued), Wilmington, DE, for appellant.

William C. Carpenter, Jr., U.S. Atty., Beth Moskow-Schnoll (Argued), Asst. U.S. Atty., U.S. Attorney's Office, Wilmington, DE, for appellee.

Before: BECKER and ALITO, Circuit Judges and ATKINS, District Judge ^*.

OPINION OF THE COURT

ALITO, Circuit Judge:

Cherie Brown pled guilty to one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846. Under U.S.S.G. § 4B1.1, she was classified as a "career offender," and this affected her sentence. She now appeals her sentence, arguing that two of the prior felony convictions on which her career offender classification was based are constitutionally invalid because she was denied the effective assistance of counsel at the time of those convictions. She contends that the district court erroneously believed that it lacked the authority to permit her to attack the constitutionality of those convictions as part of her sentencing proceeding. We hold that, under the current version of the Guidelines, a sentencing judge has authority to permit such constitutional challenges. From the record in this case, it appears that the district court may not have realized that it possessed this authority. We therefore vacate Brown's sentence and remand for further sentencing proceedings.

I.

The career offender provision of the Guidelines, U.S.S.G. § 4B1.1, provides in pertinent part as follows:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

If a defendant satisfies these requirements, his or her sentence may be greatly increased. Every career offender is placed in the highest criminal history category, Category VI, and the offender's offense level is also often increased. See U.S.S.G. § 4B1.1.

In the present case, the district court classified Brown as a career offender, finding that all three elements of the test set out in U.S.S.G. § 4B1.1 were satisfied. As the court found, Brown was more than 18 years old when she committed the instant offense; the instant offense is a felony that is a controlled substance offense; and Brown had three prior felony convictions for controlled substance offenses. These prior convictions were as follows: (1) she pled guilty in 1985 in the Supreme Court of New York for the First Judicial District (New York County) to a charge of attempted third-degree criminal sale of a controlled substance (heroin) ("the 1985 state conviction"); (2) she pled guilty in 1986 in the United States District Court for the Southern District of New York to a charge of possession of heroin with intent to distribute ("the 1986 federal conviction"); and (3) she pled guilty in 1987 in the United States District Court for the Southern District of New York to a charge of conspiracy to distribute heroin ("the 1987 federal conviction"). Any two out of these three convictions would suffice to classify her as a career offender.

Brown does not challenge the constitutionality of the 1987 federal conviction, but she does attack the 1985 state conviction and the 1986 federal conviction. If neither of these latter convictions or the events underlying them were considered in any way, ¹ her sentencing range under the Guidelines would be substantially lower. ²

Brown claims that both the 1985 state conviction and the 1986 federal conviction are unconstitutional because she was induced to plead guilty by counsel with conflicts of interest that resulted in the denial of her constitutional right to the effective assistance of counsel. Her attorney in the proceedings leading to the 1986 federal conviction was William T. Martin, and her counsel in the proceedings leading to the 1985 state conviction was Mark Weinstein, then Martin's law partner. In 1989, Martin was indicted by a federal grand jury on nine counts of tax evasion, perjury, and distribution of cocaine. He eventually reached an agreement with the government under which he pled guilty to several tax charges and a misdemeanor cocaine possession charge, and the government dropped the remaining counts. Weinstein, meanwhile, had pled guilty to one tax evasion count and was cooperating with the government in the prosecution of Martin.

Both Martin's and Weinstein's crimes allegedly grew out of their involvement with a former client, James Jackson, a major heroin trafficker now serving a lengthy federal prison sentence. From 1983 to 1986, Brown was a "crew member" of Jackson's heroin distribution enterprise. She alleges that Jackson selected Weinstein and Martin to be her counsel, that Jackson paid them for representing her, that Jackson instructed her to do whatever they told her to do, and that their recommendations that she enter guilty pleas were inspired by their loyalty to Jackson as their paymaster rather than to Brown as their actual client.

II.

None of Brown's prior felony convictions has been held invalid, but Brown contends that the district court, in determining whether to consider those convictions under the career offender provision, possessed the discretion to entertain her claim that two of them were unconstitutional. We agree with this interpretation of the Guidelines.

As previously noted, the career offender provision requires two prior "convictions" for covered offenses. U.S.S.G. § 4B1.1. The terms used in U.S.S.G. § 4B1.1 are defined in U.S.S.G. § 4B1.2. Application Note 4 of the latter provision in turn provides that U.S.S.G. § 4A1.2 is "applicable to the counting of convictions under [U.S.S.G.] § 4B1.1." The body of U.S.S.G. § 4A1.2 generally specifies those prior convictions that are and those that are not counted under the Guidelines, but the body of this provision says nothing about convictions that a defendant claims are constitutionally invalid. Instead, this important subject is discussed in commentary following the body of this provision.

Prior to November 1, 1990, Application Note 6 to U.S.S.G. § 4A1.2 specified that "[c]onvictions which the defendant shows to have been constitutionally invalid may not be counted" for federal sentencing purposes. Since 1990, however, this application note has stated (emphasis added):

[S]entences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted.

Read alone, this language seems to suggest that all convictions not "previously ruled constitutionally invalid" should be counted. At the same time as the 1990 amendment of the Application Note, however, the Commission added the following pronouncement as "Background":

The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction.

The courts of appeals have struggled with the task of interpreting this background note and harmonizing it with Application Note 6. Most of the courts of appeals have reached the conclusion that these provisions give sentencing courts the discretion to consider or to refuse to consider attacks on prior convictions not previously ruled unconstitutional. United States v. French, 974 F.2d 687, 701 (6th Cir.1992), cert. denied, --- U.S. ----, ----, 113 S.Ct. 1012, 1431, 122 L.Ed.2d 160 (1993); United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992); United States v. Jakobetz, 955 F.2d 786, 806 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); United States v. Cornog, 945 F.2d 1504, 1511 (11th Cir.1991). See also United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied sub nom. Johnson v. United States, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991) (pre-1990 version). The government's brief in this case endorses this view. See Appellee's Br. at 13. On the other hand, the Eighth Circuit has held that a sentencing court may not entertain challenges to convictions that have not previously been held unconstitutional. United States v. Hewitt, 942 F.2d 1270, 1276 (8th Cir.1991). Recently, the Ninth Circuit seems to have held that the Guidelines do not authorize a defendant to attack convictions not previously held unconstitutional but that the Constitution itself "requires that defendants be given the opportunity to collaterally attack prior convictions which will be used against them at sentencing." United States v. Vea-Gonzales, 986 F.2d 321, 327 (9th Cir.1993).

These varying interpretations are hardly surprising in light of the ambiguities in Application Note 6 and the background note of U.S.S.G. § 4A1.2. Indeed, it seems to us that there are two reasonable interpretations of these provisions.

First, it is reasonable to read these provisions to mean, as Application Note 6 seems to suggest, that the Guidelines neither authorize a sentencing court to entertain constitutional challenges to convictions not previously ruled unconstitutional nor prohibit it from doing so. Under this interpretation, the statement in the background note--"The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction"--would mean that, although the Commission was not authorizing constitutional challenges to prior convictions, it recognized that the Constitution may entitle defendants to make such challenges under some circumstances. Consequently, under this interpretation, the background note would leave it for the courts to decide when a defendant is constitutionally entitled to attack a prior conviction not previously ruled...