U.S. v. Bureau

• Decision Date: 10 May 1995
• Docket Number: No. 94-5656,94-5656
• Citation: 52 F.3d 584
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Albert BUREAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 584

52 F.3d 584

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Albert BUREAU, Defendant-Appellant.

No. 94-5656.

United States Court of Appeals Sixth Circuit.

Argued Jan. 26, 1995.

Decided April 11, 1995.

Rehearing Denied May 10, 1995.

John P. MacCoon, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Chattanooga, TN, for plaintiff-appellee.

Jerry H. Summers (argued and briefed), Summers, McCrea & Wyatt, and William H. Ortwein, Ortwein & Tidwell, Chattanooga, TN, for defendant-appellant.

Before: JONES and MILBURN, Circuit Judges; COHN, District Judge. ^*

COHN, District Judge.

This is a sentencing appeal. Defendant-appellant Raymond Albert Bureau (Bureau) pled guilty to one count each of possessing a firearm after having been convicted of a felony, 18 U.S.C. Sec. 922(g)(1), making a false statement in acquiring a firearm, 18 U.S.C. Sec. 922(a)(6), conspiracy to possess and distribute marijuana, 21 U.S.C. Sec. 846, possessing with intent to distribute marijuana, 21 U.S.C. Sec. 841(a)(1) and failing to appear for sentencing, 18 U.S.C. Sec. 3146. He was sentenced as an Armed Career Criminal under 18 U.S.C. Sec. 924(e) to a total of 182 months imprisonment. The sentence included a downward departure under Sec. 5K1.1 of the United States Sentencing Guidelines (USSG) for substantial assistance. The issues on appeal are whether the district court erred in: (1) sentencing Bureau as an Armed Career Criminal when one of the prior felony convictions relied upon was attempted burglary of a business and when all three allegedly resulted from ineffective representation; (2) allegedly reducing the degree of downward departure under a Sec. 5K1.1 motion based on the possibility of a later Fed.R.Crim.P. 35 (Rule 35) motion; and (3) refusing to grant a further downward departure on the basis of diminished capacity under 18 U.S.C. Sec. 3553 and USSG Sec. 5K2.13.

Because the district court did not abuse its discretion in sentencing Bureau under Sec. 924(e) and because we should not accept jurisdiction over a defendant's appeal as to a refusal to depart downward for diminished capacity where the district court exercised its full discretion, the sentence of the district court is affirmed on these issues. However, because we are not able to determine whether the district court fully exercised its discretion with regard to the government's USSG Sec. 5K1.1 motion, a remand for development of a complete record is necessary.

I.

On May 9, 1994, Bureau pled guilty to five counts among three indictments under which he was charged. ¹ In case 1-92-74, he pled guilty to two counts of a seven-count indictment for possessing a firearm after having been convicted of a felony and making a false statement in acquiring a firearm. In case 1-92-154, Bureau pled guilty to both counts of a two count indictment for conspiracy to possess and distribute marijuana and possessing with intent to distribute marijuana. In case 1-93-9, Bureau pled guilty to a one count indictment for knowingly and intentionally failing to appear at sentencing.

The district court granted Bureau's motion for a mental competency evaluation. On September 29, 1993, a written forensic mental evaluation report by the Bureau of Prisons was filed with the district court. The report concluded that Bureau was not suffering from a mental disease or defect that would render him unable to understand the nature and consequences of the proceedings against him or to assist in his defense. Also, the report concluded that Bureau was responsible for his actions at the time of the offenses. On October 27, 1993, Bureau waived a mental competency hearing in all three cases.

The presentence report (PSR) recommended a guideline range of 188 to 235 months based on a total offense level of 33 and a criminal history category of IV. The PSR categorized Bureau as an Armed Career Criminal because of two prior convictions for burglary of a business and one prior conviction for attempted burglary of a business.

Bureau made several objections to the PSR, including his classification as an Armed Career Criminal under 18 U.S.C. Sec. 924(e). He contended that attempted burglary of a business was not a violent crime within the meaning of 18 U.S.C. Sec. 924(e) and that his prior convictions were void because they resulted from involuntary pleas and ineffective assistance of counsel under the Sixth Amendment. Also subsequent to Bureau's plea of guilty and prior to sentencing, the government moved for a downward departure under USSG Sec. 5K1.1. ²

On May 9, 1994, a sentencing hearing was conducted after which the district court concluded that attempted burglary of a business was a violent crime, that because of Bureau's prior convictions for attempted burglary and two business burglaries he was an Armed Career Criminal, that Bureau had failed to demonstrate an inadequate factual basis for his prior convictions, and that Bureau had failed to demonstrate that his right to counsel was violated in the earlier cases. ³

At the sentencing hearing, Bureau submitted a written opinion by a private psychiatrist concluding that Bureau suffered from a significant mental disorder and could not assist in his own defense. After reviewing this report and the report completed by the Bureau of Prisons, the district court refused to grant a further downward departure on the basis of diminished capacity.

The parameters of the government's Sec. 5K1.1 motion were discussed in a side bar exchange at the sentencing hearing. The government attorney stated:

I think he did all that he could as far as I know. And that that [sic] as far as I can tell, his cooperation has been complete within the confines of his memory and his ability to do what he could.... [A]nd we were trying to work something ... that never materialized, but it was not because of anything that this defendant did.

Later in this exchange, the district court said "[b]ut you say that there is a possibility of a Rule 35" and the government attorney responded "[t]here is." The district court then stated:

The Court's sentence will be a downward departure of some degree from the guidelines based upon the Government's motion pursuant to Section 5K1.1 and based upon the Government's representations which apparently are not contested that the Defendant has provided substantial cooperation to the Government.

I will say, however, also, that the Court's downward departure will take into account the possibility that there may be a further reduction later on pursuant to a Rule 35 motion.

In open court, the district court then stated:

I make a finding in this case that the sentencing guidelines are in effect 188 to 235 months....

The Court's sentence ... will reflect, however, a downward departure of some degree as mentioned at side bar.

The district court sentenced Bureau to 182 months imprisonment--six months less than the minimum guideline sentence and two months more than the 15 year minimum sentence under Sec. 924(e). The sentence for one of the counts under case 1-92-74, for 170 months imprisonment, was ordered to be served concurrently with the sentences imposed for the two counts under case 19-92-154 for 60 months imprisonment each, and for the other count under case 1-92-74 for 60 months imprisonment. Bureau was sentenced to a consecutive sentence of 12 months imprisonment for the one count under case 1-93-9.

II.

On appeal, Bureau contends: (1) that he should not have been sentenced as an Armed Career Criminal; (2) that a potential Rule 35 motion should not reduce the degree of a downward departure for substantial assistance to the government and; (3) that a further downward departure should have been granted on the basis of Bureau's diminished capacity at the time of both the offenses and the guilty pleas to those offenses.

III.

Bureau contends that he was improperly sentenced as an Armed Career Criminal on two bases. First, he contends that his prior conviction for attempted burglary of a business was not a "crime of violence" under Sec. 924(e). Bureau relies on United States v. Martinez, 954 F.2d 1050 (5th Cir.1992) and United States v. Weekley, 24 F.3d 1125 (9th Cir.1994). Second, he argues that his prior convictions are void and therefore should not have been considered under Sec. 924(e). He argues that he may collaterally attack these convictions because he asserts a Sixth Amendment claim of ineffective assistance of counsel. Alternatively, he argues that since he has no other forum in which to challenge his prior convictions, judicial efficiency, economy and fairness strongly favor allowing a collateral attack. ⁴

A.

1.

The Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 1202(a) (1982 ed. Supp. III), raised the penalty for possession of a firearm by a felon to a mandatory minimum sentence of fifteen years imprisonment for defendants having three previous convictions for a violent felony or a serious drug offense. Section 924(e)(2)(B), as amended by the Career Criminals Amendment Act of 1986, provides:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife or destructive device that would be punishable by imprisonment for such term if committed by an adult, that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

(emphasis added). "[T]he determination of whether a defendant's prior conviction involves a 'violent felony' within the meaning of Sec. 924(e) is to be decided not by reference to his actual conduct in the charged transactions but by reference to the statute under which it was obtained." United States v. Taylor, 882 F.2d 1018, 1023 (6th Cir.1989), cert....