U.S. v. Burroughs, 93-5017

Citation5 F.3d 192
Decision Date24 September 1993
Docket NumberNo. 93-5017,93-5017
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Cecil BURROUGHS, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

William Cohen, Asst. U.S. Atty. (argued and briefed), Debra Teufel Phillips, Asst. U.S. Atty., and Ernest W. Williams, U.S. Atty., Office of the U.S. Atty., Nashville, TN, for plaintiff-appellee.

Sumter L. Camp, Asst. Federal Public Defender (argued and briefed), Federal Public Defender's Office, Nashville, TN, for defendant-appellant.

Before: MERRITT, Chief Judge; LIVELY, Senior Circuit Judge; and JOHNSTONE *, District Judge.

LIVELY, Senior Circuit Judge.

This appeal challenges the district court's use of a prior uncounseled misdemeanor conviction for which the defendant was not incarcerated to increase the defendant's criminal history category by one point. More specifically, the defendant argues that both Supreme Court and Sixth Circuit decisions prohibit such an enhancement. See Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); United States v. Nichols, 979 F.2d 402 (6th Cir.1992), petition for cert. filed, April 23, 1993; and Wang v. Withworth, 811 F.2d 952 (6th Cir.), cert. denied, 481 U.S. 1051, 107 S.Ct. 2185, 95 L.Ed.2d 842 (1987).

I.

The defendant pled guilty to one of nine counts of wire fraud for which he was indicted. 18 U.S.C. Sec. 1343. The district court sentenced him to fifteen months' imprisonment, followed by three years of supervised release, and ordered him to pay restitution to the victim in the amount of $8,990. The prison time was based on the presentence report's computation of a criminal history category of V and an offense level of eight. Sentencing Table, United States Sentencing Guidelines (Guidelines), Chapter V, Part A (1992).

Among the defendant's prior convictions was a 1980 guilty plea to simple possession of marijuana in a California court, for which he was fined $130, but not incarcerated. The probation officer stated in his presentence report that "legal representation could not be confirmed" in connection with the guilty plea. The district court treated the misdemeanor conviction as uncounseled, but nevertheless counted it in computing the defendant's sentence. If this conviction had not been counted, the defendant's criminal history category would have been IV instead of V, and the sentencing range 10-16 months rather than 15-21 months.

II.

The question in Baldasar was whether an uncounseled misdemeanor conviction "may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term." 446 U.S. at 222, 100 S.Ct. at 1585. The Supreme Court was divided in its reasoning, but held that a subsequent misdemeanor may not be converted into a felony on the basis of a prior uncounseled misdemeanor conviction. The subsequent offense in Baldasar was a misdemeanor, and the only way the court could sentence Baldasar to a prison term was by converting that misdemeanor into a felony.

Wang presented the same question as Baldasar. Wang's uncounseled 1980 misdemeanor was used to convert his subsequent misdemeanor into a felony with a prison term. This court reversed the district court's denial of a writ of habeas corpus, citing Baldasar. 811 F.2d at 955-56. In doing so, the Wang court quoted from Justice Marshall's concurring opinion in Baldasar, to the effect that an uncounseled misdemeanor conviction cannot "be used collaterally to impose an increased term of imprisonment." Id. at 955 (quoting 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring)) (internal quotation marks omitted).

We confronted a different question in Nichols. In 1983 Nichols was convicted under a nolo contendere plea of driving under the influence of alcohol (DUI), a misdemeanor. Nichols was not represented by counsel in the DUI case. He was fined, but not imprisoned. In December, 1990 Nichols pled guilty to one count of a three-count indictment for trafficking in cocaine. In imposing sentence the district court considered the prior uncounseled misdemeanor conviction in computing Nichols' criminal history score.

This court affirmed Nichols' sentence by a 2 to 1 vote. Both Judge Nelson, for the majority on this issue, and Judge Jones in dissent discussed Baldasar and its antecedents and progeny extensively. The majority read Baldasar as applying only to cases where the prosecution attempts to convert a misdemeanor into a felony carrying a prison term on the basis of a prior uncounseled misdemeanor conviction for which the defendant was not incarcerated. Judge Nelson's opinion for the majority clearly distinguished Baldasar and pointed out that Justice Marshall's broad statement in his Baldasar concurrence was dicta. The issue of whether an uncounseled misdemeanor conviction may be used for any enhancement purposes was not before either the Baldasar or the Wang court. The only sentencing question decided in Baldasar (and in Wang ) was whether a prior uncounseled misdemeanor conviction could be used to convert a subsequent misdemeanor into a felony.

III.

The defendant Burroughs argues that Baldasar and Wang control the present case and that Nichols is "void" as being in conflict with Wang. We think not. In the first place, one panel of this court is not bound by dicta in a previously published panel opinion. Stockler v. Garratt, 893 F.2d 856, 859 n. 2 (6th Cir.1990). Furthermore, the defendant in the present case did not face the same kind of enhancement that Baldasar and Wang held to be impermissible. In the subsequent proceedings here Burroughs was charged with, and pled guilty to, a felony. It simply was not a case of converting a misdemeanor into a felony. Burroughs pled guilty to a charge that required a prison sentence; imprisonment was not imposed because the prior uncounseled misdemeanor was considered. Thus, the critical facts in the present cases are materially different from those in both Baldasar and Wang.

As we noted in Nichols, the sentence imposed by the trial court in Baldasar would not have been authorized but for the previous conviction whereas Nichols could have been given up to life in prison without any consideration of the DUI conviction. 979 F.2d at 416 (Nelson, J., concurring). The same is true here, the statute that Burroughs pled guilty to violating provides for imprisonment of up to five years.

IV.

Both...

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