U.S. v. Gray

• Decision Date: 08 April 1999
• Docket Number: No. 98-2029,98-2029
• Citation: 177 F.3d 86
• Parties: UNITED STATES, Appellee, v. Richard A. GRAY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 86

177 F.3d 86

UNITED STATES, Appellee, v. Richard A. GRAY, Defendant, Appellant.

No. 98-2029.

United States Court of Appeals First Circuit.

Heard April 8, 1999.

Decided May 27, 1999.

James S. Hewes for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief for appellee.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

BOWNES, Senior Circuit Judge.

In the morning hours of April 22, 1998, Richard A. Gray and his compatriot Robert L. Echols entered the Key Bank in Portland, Maine, to perpetrate a robbery. They did so to obtain money for more drugs, after staying up all night drinking and taking drugs. With Echols serving as lookout, Gray delivered a note to the bank teller that read: "I got a gun. Give me all the money and know [sic] one will get hurt." The teller asked Gray whether he was joking. In response, Gray lifted his shirt and pointed to a black object secured in his waistband. The teller explained that her station was closed and that she needed a key to unlock the drawer. After the teller disappeared for what seemed an unusually long period of time in search of one, Gray became unnerved and fled the scene.

The two then improvised and decided to hold up a second bank, believing their chances of success enhanced by all of the police attention suddenly focused on Key Bank. Gray entered a Fleet Bank branch office, while Echols waited in a nearby cab. This time, Gray's note said: "Give me all your money or I'll start shooting." Having learned his lesson, Gray also orally assured the teller that he was not playing a prank. The teller quickly stuffed $11,907 into a paper bag and handed it to Gray. On his way out, Gray apologized to the teller "for putting her though this." He never actually had a gun during either episode.

The pair was nabbed two days later, and each was charged with two counts of violating the federal anti-robbery statute, 18 U.S.C. § 2113(a). Gray, whose appeal is at issue here, pleaded guilty to both counts and was sentenced principally to 54 months in prison.

On appeal, he assigns error to three decisions by the sentencing court, contending that: (1) it should not have factored into the sentencing calculus a prior conviction for which he had no lawyer; (2) his actions during the Fleet Bank robbery did not amount to a "threat of death" sufficient to trigger a two-point enhancement; and (3) the court erred by considering a juvenile adjudication for misdemeanor theft. We uphold the sentence.

I

Gray complains that the district court improperly used a 1997 misdemeanor theft conviction obtained without the benefit of counsel to increase his criminal history score by one point. He says uncounseled convictions may not be considered in fixing a sentence under the federal guidelines, and that the docket sheet suffices to show that he was not represented by counsel at his plea hearing. In the alternative, he argues that the docket sheet established a prima facie case that the conviction was defective, and that the burden then shifted to the government to prove that Gray either received a lawyer or waived his right to one.

In addressing this issue, the district court assumed that Gray did not have counsel and held that he bore the burden of showing that he did not waive his right to counsel, given the fact he was sentenced only to time served. The court concluded that Gray failed to demonstrate that he had not waived his right to counsel, and therefore relied on the conviction to calculate Gray's criminal history score.

We begin with the essentials. Once the government establishes the fact of a prior conviction for sentencing purposes, a "modest" burden satisfied here by the presentence report, "[t]he burden then shifts to the defendant to establish that the earlier conviction was constitutionally infirm ... or otherwise ineligible to be the basis for an upward adjustment." United States v. Unger, 915 F.2d 759, 761 (1st Cir.1990); see also United States v. Cordero, 42 F.3d 697, 701 (1st Cir.1994). Only if a defendant meets this burden must the prior conviction be excluded from the criminal history score. Otherwise, the presumption of regularity remains undisturbed, and the conviction must be counted.

The preliminary question is to what extent do the guidelines forbid consideration of misdemeanor convictions obtained without the benefit of counsel? On this, U.S.S.G. § 4A1.2(c) is silent other than to provide generally that, with two categories of exceptions not relevant here, ¹ "sentences for misdemeanor and petty offenses are to be counted." The rest of the guidelines and pertinent commentaries give mixed signals. On the one hand, the guidelines do not confer on a defendant any right to collaterally attack a prior conviction or sentence "beyond any such rights otherwise recognized in law." See § 4A1.2 comment. n.6. It is also worth pointing out that the guidelines allow for consideration of criminal conduct underlying any conviction not factored into the criminal history score pursuant to § 4A1.3 if the initial score does not adequately reflect an individual's criminal history or propensity to commit future crimes. See id.

On the other hand, the related background commentary does say that "prior sentences, not otherwise excluded, are to be factored into the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed." By negative implication, this language may be taken to mean that an uncounseled misdemeanor offense is to be counted when it did not result in jail time, but generally may not be counted where it led to a prison term. See United States v. Ortega, 94 F.3d 764, 770-71 (2d Cir.1996) (interpreting "section 4A1.2 [to] exclude[ ] from criminal history computations all uncounseled misdemeanor sentences of imprisonment"). And, whatever the guidelines may or may not say, the case law is reasonably clear that a court may not fix a sentence based in part on an uncounseled conviction that resulted in incarceration. The Sixth and Fourteenth Amendments have been interpreted to say that an individual may not be actually sentenced to a term of imprisonment without being afforded the opportunity to seek the advice of counsel, and that a conviction later determined to be invalid cannot ordinarily be used to determine a future sentence. See Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), affirmed in Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (drawing line "between criminal proceedings that resulted in imprisonment, and those that did not"); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Sixth Amendment forbids use of uncounseled conviction "either to support guilt or enhance punishment for another offense"); see also United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

We need not definitively establish whether and to what extent uncounseled misdemeanors offenses may be counted but instead assume for the sake of argument that, under the sentencing guidelines, a defendant would be entitled to exclude an uncounseled misdemeanor conviction resulting in prison time. Nevertheless, Gray, who bears the burden of proof, has failed to show that he did not knowingly waive the assistance of counsel at his 1997 plea hearing.

In an attempt to convince the district court that his prior conviction for theft was void for purposes of sentencing, Gray proffered a copy of the docket sheet from the state court sitting in the Division of South Cumberland that had accepted his guilty plea and sentenced him (there appeared to have been no effort made to obtain a transcript or explain why one could not be procured). The docket sheet shows that on February 26, 1997, the same day of his arrest, Gray was charged with Theft by Unauthorized Taking, a Class E offense, to which he pleaded guilty that very day, and that the court sentenced him to 12 hours in jail, with credit for time served, and ordered him to pay $10.00 in restitution. It does not indicate that an attorney ever entered an appearance on his behalf. The presentence report stated that probation's review of the public records did not reveal whether Gray had counsel on that occasion. Hence, it appears that he pleaded guilty without the benefit of a lawyer--a situation the sentencing judge presumed to be the case as part of his analysis.

Still, the record does not reflect whether or not Gray chose to waive his right to counsel, a common enough occurrence when a defendant is charged with a low level offense and is given the possibility of walking out the courthouse doors a free man the day of his arraignment in exchange for pleading guilty and accepting a sentence of a small fine and time served. See Unger, 915 F.2d at 761 (stating that defendant attacking validity of conviction must show "that he lacked counsel at [a critical] juncture and had not waived his right in such regard"); see also United States v. Allen, 153 F.3d 1037, 1041 (9th Cir.1998) ("the defendant must present evidence sufficient to overcome the presumption that there was a valid waiver of counsel"), cert. denied, --- U.S. ----, 119 S.Ct. 1094, 143 L.Ed.2d 94 (1999).

We find no fault in the sentencing judge's refusal to draw the inferences from the docket sheet urged by Gray. Not only was the document silent on the critical questions, but Gray himself did not testify at the sentencing hearing or file a sworn affidavit to the effect that he was not afforded counsel. Because a defendant stands in the best position to offer a first-hand account of the details of his own past legal proceedings, his silence can be deafening. See Parke v. Raley, 506 U.S. 20, 32, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ("when the plea was entered in another jurisdiction, the defendant may be the only witness who was...