U.S.A v. Dean

• Decision Date: 05 May 2010
• Docket Number: No. 08-4439.,08-4439.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Antonio Bernard DEAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

604 F.3d 169

UNITED STATES of America, Plaintiff-Appellee,v.Antonio Bernard DEAN, Defendant-Appellant.

No. 08-4439.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2010.

Decided: May 5, 2010.

ARGUED: Ross Hall Richardson, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON and MOTZ, Circuit Judges, and Joseph R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge GOODWIN joined.

WILKINSON, Circuit Judge:

Antonio Bernard Dean challenges the imposition of a “career offender” sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were “separated by an intervening arrest.” See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court's decision in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny, the Supreme Court intended two things. First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory. Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence. Dean's contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.

I.

In December 2006, Dean was charged with one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841. The offense carries a maximum sentence of twenty years. 21 U.S.C. § 841(b)(1)(C). He pled guilty without a plea agreement. The Pre-Sentence Investigation Report (“PSR”) calculated an advisory Sentencing Guidelines range of 151 to 188 months' imprisonment. This range reflected the conclusion that Dean qualified as a “career offender” within the meaning of the Guidelines, which increased both his offense level and his criminal history classification. See USSG § 4B1.1(b). Under the Guidelines, Dean was eligible for this enhancement if he had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Id. The PSR concluded that Dean was a career offender since his record showed that he had pled guilty to two cocaine felonies in North Carolina state court.

Dean, however, objected. The two predicate offenses cited by the PSR had been sentenced the same day, and the Guidelines provide that in such a situation, they are to be counted as only a single offense unless it can be shown that the sentences “were imposed for offenses that were separated by an intervening arrest.” USSG § 4A1.2(a)(2); see also USSG § 4B1.2(c)(2). An intervening arrest means that “the defendant is arrested for the first offense prior to committing the second offense.” USSG § 4A1.2(a)(2). Dean objected to his career offender classification on these grounds, arguing that there was no intervening arrest separating the predicate offenses cited by the PSR. Treating the two sentences as a single conviction would have produced a Guidelines range of thirty to thirty-seven months' imprisonment.

The issue was taken up at Dean's sentencing hearing in April 2008. The government claimed that Dean was arrested for the first offense on April 1, 1999, and that he committed the second offense on January 26, 2000. In support of these propositions, it produced copies of two bond orders from state magistrate judges, as well as certain records from the state court clerk's office. The docket number listed on each of the respective magistrate's orders corresponded with the docket numbers associated with Dean's two prior convictions. The first order was dated April 2, 1999, and indicated that Dean had committed and been arrested for a drug felony the day before, on April 1. The second order was issued January 27, 2000, and stated that Dean had committed and been arrested for a drug felony the day before, on January 26.

Over Dean's continued objection, the district court concluded on the basis of the government's evidence that an intervening arrest had taken place. The court then sentenced Dean to the Guidelines minimum of 151 months' imprisonment. This appeal followed.

II.

Under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a sentencing court attempting to determine the character of a prior offense to which a defendant pled guilty generally may look only to certain documents: “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16, 125 S.Ct. 1254. Shepard was founded on two rationales: concern that a wider inquiry would violate the Sixth Amendment right to trial by jury and a desire to avoid elaborate proceedings in which an earlier trial might be picked apart. Id. at 23-25, 125 S.Ct. 1254.

Dean argues that the district court erred by relying on materials other than the sort Shepard allows to establish that an intervening arrest had occurred. For purposes of this appeal, we assume that the magistrate's orders and clerk's office records that Dean seeks to exclude would not qualify for admission under Shepard, since the government has not argued otherwise. Nonetheless, Dean's claim is mistaken for several reasons.

A.

The Sixth Amendment right to trial by jury applies to the finding of “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” United States v. Booker, 543 U.S. 220, 231, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (citation omitted). There is an exception to this principle, however. Under the doctrine originating in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), there is no right to have a jury determine the existence of the “fact of a prior conviction,” nor of any fact “necessarily” established for the conviction to have been valid. See Booker, 543 U.S. at 231, 125 S.Ct. 738; Shepard, 544 U.S. at 24-25, 125 S.Ct. 1254.

The reason for this exception is that a prior conviction and any subsidiary conclusions it necessarily entailed are more like legal facts than real-world ones. As we have explained, decisions like “ Booker [ ] and Shepard do not, of course, transmogrify what have always been questions of law into questions of fact.” United States v. Thompson, 421 F.3d 278, 285 (4th Cir.2005). And the process of putting two and two together-of reasoning that a jury that convicted a defendant of a given offense necessarily found that the defendant engaged in conduct that is an essential element of the offense-is a matter of legal reasoning, not factual inference. See Shepard, 544 U.S. at 25, 125 S.Ct. 1254; Thompson, 421 F.3d at 282-83.

But while facts established through a prior conviction are excepted from the Sixth Amendment jury trial right, respect for the Sixth Amendment requires that this exception be kept within its proper bounds. That was one of the lessons of Shepard, which noted that in some cases the meaning of a prior conviction may be “debatable.” Shepard, 544 U.S. at 25, 125 S.Ct. 1254. Shepard therefore held that courts relying on the Almendarez-Torres exception could consider as evidence only official documents establishing the matter with “the conclusive significance of a prior judicial record.” Id.

Shepard's Sixth Amendment holding was meant to ensure that judges do not “smuggle in contraband facts-those that are reserved for juries-under the mantle” of the Almendarez-Torres exception. Thompson, 421 F.3d at 282. It should be obvious that in contexts where there is no Sixth Amendment right to trial by jury, there is no need to rely on Shepard's technique for ensuring that the Almendarez-Torres exception to the jury-trial right genuinely applies. In arguing that the intervening arrest determination violated the Sixth Amendment, however, Dean runs headlong into this principle.

In Booker, the Supreme Court held that the then-mandatory Sentencing Guidelines violated the Sixth Amendment since they allowed a defendant's sentence to be increased beyond the maximum allowable by law if the sentencing judge made certain factual findings. Booker, 543 U.S. at 243-44, 125 S.Ct. 738. The Court's solution was to convert the Guidelines from binding law to an advisory document. Id. at 246, 125 S.Ct. 738. Once the Guidelines were stripped of legal force, the Sixth Amendment no longer pertained to them-that, after all, was the reason for the stripping. As we have explained:

Sentencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury's verdict. Indeed, “many individual Guidelines apply higher sentences in the presence of special facts” and “[i]n many cases, the sentencing judge, not the jury, will determine the existence of those facts.” That “does not violate the Sixth Amendment,” however, because “[a]s far as the law is

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