U.S. v. Haymer

• Citation: 995 F.2d 550
• Decision Date: 30 June 1993
• Docket Number: No. 92-7585,92-7585
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norman L. HAYMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 550

995 F.2d 550

UNITED STATES of America, Plaintiff-Appellee, v. Norman L. HAYMER, Defendant-Appellant.

No. 92-7585.

United States Court of Appeals Fifth Circuit.

June 30, 1993.

Scott Stuart, Jackson MS (court-appointed), for defendant-appellant.

Billups S. Allen, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Norman L. Haymer appeals his sentence, contending that his Sixth Amendment right to counsel was violated by the inclusion of an uncounseled misdemeanor conviction in calculating his Sentencing Guidelines criminal history score. We AFFIRM.

I.

Haymer pleaded guilty to possession with the intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). In the presentence investigation report (PSR), the probation officer recommended a guideline range of 51 to 63 months imprisonment, based upon an offense level of 22 and a criminal history category of III. The criminal history score included 2 points for committing the instant offense while on probation, 1 point for a 1987 conviction, and 1 point for a 1991 shoplifting conviction. The latter is the subject of this appeal. The PSR described the circumstances of that conviction as follows:

Records of the Jackson Police Department indicate Haymer was arrested on May 22, 1991 and charged with shoplifting.... The defendant entered a plea of guilty to the charge in Jackson Municipal Court and was ordered to pay a fine of $300 plus court costs. On November 13, 1991, Haymer was arrested by the Jackson Police Department and charged with contempt of court for failing to pay the imposed fine and court costs. Disposition of the contempt charge has not been received as of this writing, but according to the defendant, he opted to perform 18 days of work at the Hinds County Penal Farm in lieu of paying the fine and court costs.

Although he did not file written objections to the PSR, Haymer objected, at the sentencing hearing, to the inclusion of the shoplifting conviction in his criminal history score, on the ground that he was not represented by counsel and had served 18 to 19 days in jail. Exclusion of that conviction would have lowered his criminal history score, resulting in a guideline range of 46 to 57, instead of 51 to 63, months.

After hearing testimony, the district court found that the original sentence for shoplifting consisted only of a fine, and that Haymer's incarceration resulted either from contempt of court for failure to pay the fine, or from Haymer's decision to substitute incarceration in lieu of paying it. It also found that Haymer, who was an attorney in Louisiana from 1976-1986, but was disbarred in 1990, acted as his own counsel on the shoplifting charge. Haymer was sentenced to 51 months imprisonment and a five-year term of supervised release and ordered to pay a $50 special assessment and $1,000 fine.

II.

Haymer's sole contention is that his sentence was imposed in violation of law, or as a result of an incorrect application of the Guidelines, because the uncounseled misdemeanor conviction was included in the calculation of his criminal history score.

We "will uphold a sentence unless it was imposed in violation of law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable." United States v. Howard, 991 F.2d 195, 199 (5th Cir.1993). "[W]hether a prior conviction is covered under the sentencing guidelines is ... reviewed de novo, while factual matters concerning the prior conviction are reviewed for clear error." Id.

In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court held that an indigent criminal defendant may not "be sentenced to a term of imprisonment " unless the government has afforded him the right to assistance of counsel guaranteed by the Sixth Amendment. Id. at 373, 374, 99 S.Ct. at 1161, 1162 (emphasis added). Absent a valid waiver of this right, "[i]f an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional." United States v. Eckford, 910 F.2d 216, 218 (5th Cir.1990) (emphasis added); United States v. Follin, 979 F.2d 369, 376 (5th Cir.1992). But, the Sixth Amendment does not require the States to provide counsel in criminal cases in which the defendant is not sentenced to imprisonment. Id. Accordingly, uncounseled misdemeanor convictions for which no term of imprisonment is imposed are constitutionally valid, may be introduced into evidence at the punishment phase of a trial for a subsequent offense, and may be used to calculate a defendant's Guidelines criminal history score. Eckford, 910 F.2d at 220-21; Wilson v. Estelle, 625 F.2d 1158, 1159 (5th Cir. Unit A 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981).

Haymer seeks shelter under Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); but our court has repeatedly interpreted that case only to prohibit the use of a prior uncounseled misdemeanor conviction "under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term." Wilson v. Estelle, 625 F.2d at 1159 n. 1; see also Eckford, 910 F.2d at 220. Likewise, we have repeatedly held that Baldasar does not prohibit the use of an uncounseled misdemeanor conviction to determine a criminal history category for a crime that is itself a felony. Follin, 979 F.2d at 376 & n. 8. Needless to say, possession with the intent to distribute crack cocaine is a felony; therefore, Baldasar is inapplicable.

Consistent with these cases, the Guidelines provide that "uncounseled misdemeanor sentences where imprisonment was not imposed" are to be included in calculating the criminal history score. U.S.S.G. § 4A1.2, comment. (backg'd) (1991). The commentary to that section provides that "[a] sentence which specifies a fine or other non-incarcerative disposition as an alternative to a term of imprisonment ... is treated as a non-imprisonment sentence." U.S.S.G. § 4A1.2, comment. (n. 4). Application note 6 to § 4A1.2 states that "sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted" in computing a defendant's criminal history score. U.S.S.G. § 4A1.2, comment. (n. 6) (1991). Application note 6 "allows a district court, in its discretion, to inquire into the validity of prior convictions at sentencing hearings." United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992).

Haymer presented no evidence that his shoplifting conviction had been previously ruled constitutionally invalid, but instead sought to collaterally attack it at sentencing. The district court, in the exercise of its discretion, entertained the challenge, but found that Haymer's sentence for shoplifting consisted only of a fine, and that his incarceration resulted either from contempt of court for failure to pay the fine, or from Haymer's decision to substitute incarceration in lieu of paying it. Based on those findings, the district court held that the conviction was not constitutionally invalid. Our task is to determine whether the district court's factual findings, regarding the circumstances of Haymer's shoplifting conviction and subsequent incarceration, are clearly erroneous.

In his testimony at the sentencing hearing, Haymer described the circumstances of his shoplifting conviction as follows:

I was arrested and I made bond. I went back to court. At the time I was working. So they ... accused me of stealing a pack of cigarettes. So I told the judge I didn't. I was in his chamber. I wasn't in court.... I thought it would be a low fine or whatever. But he told me he'd accept the guilty plea and give me a fine. I thought the fine would be probably $50, you know, for a pack of cigarettes; and he fined me 300-and-something dollars. I didn't have the money, so eventually they sent me to jail to work it off.

....

I wasn't advised that I had a right to a lawyer at the time or I would have chose to have a lawyer, if I knew that that particular thing could come back and haunt me at a later date. Or if I could have got some jail time. I didn't know I was--you know, because he told me it was going to be a fine.

Defense counsel, relying on Baldasar and Scott, argued that, because Haymer had served 18 or 19 days in jail "as a result of the conviction and his failure to pay," the conviction was unconstitutional, and could not be used to calculate the criminal history score.

The court then questioned the probation officer, who testified as follows:

Mr. Haymer was charged with shoplifting. He was convicted and fined $300. There was no term of imprisonment imposed, no term suspended, nothing. He failed to pay the fine. They issued a bench warrant for contempt for failing to pay the fine. According to Mr. Haymer, he opted to do or perform 18 days of work at the penal farm instead of paying the fine. In our opinion it appears to us that it was not a mandatory term of imprisonment imposed as a result of the conviction. It was an option taken on his part. And I will point out to Your Honor that I believe Mr. Haymer is--he is an attorney. We're not dealing with someone who is ignorant of the law or his rights.

THE COURT: The prison term came--the time that was set forth in the sentence came as a result of a contempt--

[PROBATION OFFICER]: That's correct.

THE COURT: --rather than the crime itself.

[PROBATION OFFICER]: That's correct.

Defense counsel responded that Haymer's incarceration was "a direct result of the crime itself. What Mr. Haymer did was work off this fine."

The district court then asked the probation officer if she had any documentation showing that the jail time resulted from the contempt...