U.S. v. Byrd, 92-5623

• Decision Date: 23 July 1993
• Docket Number: No. 92-5623,92-5623
• Citation: 995 F.2d 536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene BYRD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 536

995 F.2d 536

UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene BYRD, Defendant-Appellant.

No. 92-5623.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1993.

Decided June 15, 1993.

As Amended by Order July 23, 1993.

Allen Bethea Burnside, Asst. Federal Public Defender, Columbia, SC, argued, for defendant-appellant.

Terry L. Wooten, Asst. U.S. Atty., Columbia, SC, argued (John S. Simmons, U.S. Atty., on brief), for plaintiff-appellee.

Before HALL and WILKINS, Circuit Judges, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

WILKINS, Circuit Judge:

Charles Eugene Byrd appeals from the sentence imposed by the district court following his plea of guilty to distributing cocaine base (crack) in violation of 21 U.S.C.A. § 841(a)(1) (West 1981) and 18 U.S.C.A. § 2 (West 1969). Byrd maintains that the district court erred in refusing to entertain at sentencing his claim that one of the predicate offenses qualifying him for treatment as a career offender pursuant to United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov.1991) was tainted by constitutional error and, therefore, could not be used to enhance his sentence. We affirm.

I.

Section 4B1.1 provides in pertinent part: ¹

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.

U.S.S.G. § 4B1.1. Under this guideline a defendant who qualifies as a career offender is assigned a Criminal History Category of VI and an enhanced offense level, depending on the statutory maximum sentence of the offense of conviction. Id. Byrd's presentence report (PSR) indicated that he should be sentenced as a career offender, subjecting him to an offense level of 34 and Criminal History Category VI. With a two-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), Byrd's adjusted offense level was 32, resulting in a guideline range of 210-262 months imprisonment.

As set forth in the PSR, the two predicate offenses qualifying Byrd for treatment as a career offender are a 1983 conviction and a 1990 conviction, both for assault and battery of a high and aggravated nature. The PSR indicated that on June 14, 1983 Byrd pled guilty to assault and battery of a high and aggravated nature in state court during proceedings at which he was represented by counsel. He was sentenced for this conviction which according to the PSR arose from his shooting someone with a pistol, to from one to six years imprisonment, suspended upon the service of three years of probation. Additionally, the PSR indicated that Byrd was convicted in state court on September 4, 1990 of assault and battery of a high and aggravated nature after beating another victim in the face and head with a pistol.

Byrd did not object to consideration of the September 1990 conviction. He did, however, argue that the June 1983 conviction should not be used as a predicate offense qualifying him for career offender status. He asserted that this conviction in state court was obtained through an involuntary and unknowing guilty plea, in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He bases his Boykin violation claim on assertions that the state trial judge who accepted his guilty plea failed to explain adequately the constitutional rights he was waiving as a result of his guilty plea, failed to inform him of the maximum penalties for the offense to which he was pleading, and failed to establish an adequate factual basis for the plea, even though at one time during the plea proceeding he denied committing the offense. Byrd produced a copy of the transcript from the state plea proceeding to support his claim. In addition, he testified that he was not advised of, or did not understand, the constitutional rights he waived by pleading guilty and that he was not guilty of this predicate offense. The district court declined to entertain Byrd's challenge to this conviction and sentenced him to 240 months imprisonment.

II.

Byrd concedes that if his 1983 state conviction for assault and battery of a high and aggravated nature was properly counted as a predicate offense, his sentence as a career offender under § 4B1.1 must stand. However, he maintains that the conviction should not be counted as a predicate offense because it was obtained unconstitutionally. He further asserts that the decisions of this court in United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991) (Jones I), and United States v. Jones, 977 F.2d 105 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1335, 122 L.Ed.2d 719 (1993) (Jones II), hold that the district court had discretion to consider a constitutional challenge to the validity of a state conviction used to enhance his sentence. Byrd supports his claim by reference to the transcript of the state plea proceeding which, combined with his testimony, he contends demonstrates that his state plea did not result from a knowing and voluntary decision to plead guilty, in violation of Boykin.

Convictions that properly are counted under U.S.S.G. § 4A1.2 must be considered in determining whether a defendant has the requisite number of predicate offenses to qualify as a career offender under § 4B1.1. U.S.S.G. § 4B1.2, comment. (n.4) (instructing that § 4A1.2 applies in determining whether convictions should be counted under § 4B1.1). In Jones I this court addressed whether a district court was authorized to entertain constitutional challenges to prior convictions in determining whether they should be counted under § 4A1.2 pursuant to the 1989 version of the Guidelines Manual. See Jones I, 907 F.2d at 463. This version of Application Note Six to U.S.S.G. § 4A1.2 provided in pertinent part:

Invalid Convictions. Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Any other sentence resulting in a valid conviction is to be counted in the criminal history score. Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score.

U.S.S.G. § 4A1.2, comment. (n.6) (Nov.1989) (emphasis added). The Jones I court held that this language authorized district judges to entertain at sentencing constitutional challenges to prior convictions that would be used to enhance a defendant's sentence. ² Jones I, 907 F.2d at 462-69.

Effective November 1, 1990, the United States Sentencing Commission amended Application Note Six to read in pertinent part:

Reversed, Vacated, or Invalidated Convictions. Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Also, sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted.

U.S.S.G. § 4A1.2, comment. (n.6) (Nov.1990) (emphasis added). In addition, the Commission added Background Commentary to § 4A1.2 that provided, "The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction." U.S.S.G. § 4A1.2, comment. (backg'd.). Because Byrd was sentenced in September 1992 for an offense committed in March 1992, this amended language governs his sentencing. See U.S.S.G. § 4A1.2, comment. (n.6), (backg'd.) (Nov.1991). Thus, because the pertinent language relied on by Jones I has been deleted and new language added, Byrd is incorrect that our decision in Jones I controls this appeal.

Byrd next contends that the amended language should be interpreted to provide district courts with discretion to entertain constitutional challenges to prior convictions that will be relied upon to enhance a defendant's sentence. The courts of appeals that have addressed the meaning of the amended Application Note and Background Commentary have taken differing approaches. Compare United States v. Jakobetz, 955 F.2d 786, 805 (2d Cir.) (holding amended language gives district courts discretion to permit collateral attack on prior convictions used to enhance sentence), cert. denied, --- U.S. ----, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992); United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992) (same); United States v. Hoffman, 982 F.2d 187, 190 (6th Cir.1992) (same) and United States v. Brown, 991 F.2d 1162, 1166 (3d Cir.1993) (same) with United States v. Vea-Gonzales, 986 F.2d 321, 327 (9th Cir.1993) (holding that Commission did not intend amended language to provide discretion to district courts to entertain challenges to prior convictions at sentencing); United States v. Roman, 989 F.2d 1117, 1119 (11th Cir.1993) (en banc) (per curiam) (same) and United States v. Elliott, 992 F.2d 853, 856 (8th Cir.1993) (same).

We agree with the Courts of Appeals for the Eighth, Ninth, and Eleventh Circuits that Application Note Six provides no independent authority for a district court to refuse to count a prior conviction that has not previously been ruled constitutionally invalid. The 1990 amendment deleted the language on which Jones I relied to hold that the Note authorized collateral constitutional challenges to prior convictions at sentencing and substituted language requiring that the prior conviction must have been "previously ruled constitutionally invalid" before the district court should not count it. U.S.S.G. § 4A1.2, comment. (n.6) (Nov.1990). Moreover, the Background Commentary does not change the meaning...