U.S. v. Cornog

• Decision Date: 30 October 1991
• Docket Number: No. 89-8264,89-8264
• Citation: 945 F.2d 1504
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Emory Eugene CORNOG, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1504

945 F.2d 1504

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Emory Eugene CORNOG, Defendant-Appellant, Cross-Appellee.

No. 89-8264.

United States Court of Appeals, Eleventh Circuit.

Oct. 30, 1991.

Jake Arbes, Atlanta, Ga., for defendant-appellant, cross-appellee.

James T. Martin, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, CLARK, Circuit Judge, and KAUFMAN ^*, Senior District Judge.

TJOFLAT, Chief Judge:

I.

A.

On January 5, 1989, a jury convicted Emory Eugene Cornog on one count of conspiring, between January 1987 and February 13, 1988, to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) ¹ and 846 (1988) ² and on two substantive counts of cocaine distribution, on February 9, 1988 and February 12, 1988, in violation of 21 U.S.C. § 841(a)(1). Following his conviction, Cornog's probation officer prepared a presentence investigation (PSI) report that assessed his offense level and criminal history score.

To determine Cornog's criminal history score, the probation officer assigned him three points for a 1972 voluntary manslaughter conviction in state court (for which the court sentenced Cornog to ten years imprisonment), see Sentencing Guidelines §§ 4A1.1(a), 4A1.2(e)(1) (Nov. 1, 1990), and one point each for two 1980 state-court shoplifting convictions (for which he received probated sentences), see id. § 4A1.1(c). With a criminal history score of five, the probation officer recommended that the district court place Cornog in criminal history category III. The offense level for Cornog's drug offenses was eighteen, see id. § 2D1.1(a), and the probation officer increased it two levels, to twenty, for Cornog's participation as an organizer, leader, manager, or supervisor in the criminal activity, see id. § 3B1.1(c).

Both Cornog and the Government filed objections to the PSI report. The Government contended that the probation officer should have considered, in calculating Cornog's criminal history score, two other convictions, one for burglary and one for assault with intent to murder, that Cornog received in 1969. If the court considered these convictions, the Government argued, it would classify Cornog as a career offender since he would then have two convictions for crimes of violence--assault with intent to murder ³ and voluntary manslaughter- --on which he had been incarcerated during the past fifteen years. See id. §§ 4B1.1, 4A1.1(e)(1); see infra pp. 1507-08. This automatically would place Cornog in criminal history category VI and would mandate a total offense level of thirty-two. Sentencing Guidelines § 4B1.1. ⁴

Cornog also objected to the parole officer's calculations of his total offense level and criminal history category, arguing, inter alia, that he did not organize or supervise the narcotics conspiracy for which he was convicted; consequently, the court should not increase his offense level by two. In addition, he contended that his two shoplifting offenses were not countable for criminal history purposes; thus, the probation officer should have placed him in criminal history category II--not III.

After consideration of Cornog's and the Government's objections, the probation officer adopted the Government's position--with career offender status Cornog's criminal history category should be increased to category VI and his total offense level to thirty-two. (The probation officer noted that, in the absence of career offender status, the court should place Cornog in criminal history category IV and assess him a total offense level of eighteen.) In the revised PSI report, the probation officer recommended a guidelines sentence of 210 to 262 months imprisonment.

B.

On March 16, 1989, the district judge conducted a sentencing hearing. In determining the applicable guidelines range, the court first considered whether Cornog was a career offender, pursuant to Sentencing Guidelines § 4B1.1. Under this guideline, a defendant is a career offender if (1) he was at least eighteen years old at the time of the instant offense, (2) the instant offense 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. Id. Neither party contested the first two elements, so the court only had to consider whether Cornog had two prior applicable felony convictions. According to the guidelines, the court only may count "prior sentence[s] of imprisonment exceeding one year and one month that w[ere] imposed within fifteen years of the defendant's commencement of the instant offense ... [and] prior sentence[s] of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period." Id. § 4A1.2(e)(1). ⁵ Thus, the guidelines establish a fifteen-year window that the court uses to "count" the prior felonies, calculating back from the commencement of the instant offense, i.e., from the time the "relevant conduct" of the offense began, see id. § 1B1.3.

The court, in scoring Cornog's criminal history, examined four of his prior felony convictions: one for assault with intent to commit murder, one for burglary, one for violation of the Georgia Narcotics Drug Act (now repealed), and one for voluntary manslaughter. ⁶ Without determining the date the criminal history window opened, the court ruled that Cornog's voluntary manslaughter conviction, handed down on September 28, 1972, clearly was countable. ⁷ The court next considered Cornog's assault, burglary, and narcotics offenses. A state court handed down these convictions in 1969, but the state paroled Cornog on September 23, 1971. Since the earliest conduct alleged in Cornog's indictment occurred in January 1987, the window could not have opened before January 1972; therefore, without more, the 1969 convictions were not countable. When, on June 16, 1972, the state charged Cornog with murdering his wife, the state issued a parole revocation warrant. A jury found Cornog guilty of voluntary manslaughter on September 28, 1972, and, on May 7, 1973, the state revoked Cornog's parole with, according to Cornog, no notice to him. ⁸ The Government argued that, because Cornog's parole revocation meant that he served time on the burglary and assault convictions within the window, ⁹ they were countable felony convictions. The district court, however, without reference to a guideline, held that such a revocation was constitutionally invalid and should not be counted for purposes of the criminal history score. Since, according to the district court's determination, Cornog had only one countable felony conviction, he could not be classified as a career offender.

The court next considered what criminal history score to assign Cornog. In the PSI report, as noted above, the probation officer originally had assessed Cornog three points for his voluntary manslaughter conviction and one point each for two misdemeanor shoplifting convictions. This placed Cornog in criminal history category III. Later, the probation officer revised the PSI report, accounting for the revocation of parole with respect to his 1969 burglary and assault convictions, and, therefore, put Cornog in the career offender category. She thus recommended that the court place Cornog in criminal history category VI. The district court, without explanation, placed Cornog in criminal history category IV, even though it had determined that the parole revocation was invalid.

The court then assessed Cornog a total offense level of twenty, eighteen levels for the instant offenses and a two-level upward adjustment, pursuant to Sentencing Guidelines § 3B1.1(c), for his role as "an organizer, leader, manager, or supervisor" of the criminal activity. Cornog had contested the upward adjustment, but the court found "the evidence ... sufficient to show that at least two people possibly were working for ... [him]." Observing that, with a criminal history category IV and a total offense level of twenty, the guidelines mandate fifty-one to sixty-three months imprisonment, the court sentenced Cornog to sixty-three months imprisonment with a supervised release period of up to three years.

Cornog raises two issues on appeal. He first contests his placement in criminal history category IV, claiming that the court improperly counted a conviction on which he had been paroled and then reincarcerated after a constitutionally invalid parole revocation. Second, he claims that the court erred by applying the wrong standard of proof when it imposed the two-level upward adjustment to his offense level based upon his role in the offense. The Government cross-appeals, claiming that the court erred when it refused to classify Cornog as a career offender. We agree with Cornog; accordingly, we remand to the district court for resentencing.

II.

Cornog contends that the district court erred by placing him in criminal history category IV; according to Cornog, the district court simply made an arithmetic mistake: it already had excluded Cornog's 1969 convictions from the career offender consideration, ruling that they were constitutionally invalid. Although the court did not explain its choice of criminal history categories, the Government posits two possible explanations, neither of which will sustain the sentence under the guidelines.

A.

The Government first argues that the court properly counted Cornog's 1969 convictions for criminal history purposes even though it had refused to consider them for purposes of the career offender determination. According to the Government, this selective use of invalid convictions is sanctioned by the guidelines. We disagree; if the court properly held that the convictions were...