U.S. v. Holland, 98-2572

• Decision Date: 12 January 1999
• Docket Number: No. 98-2572,98-2572
• Citation: 195 F.3d 415
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Dondi Holland,Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 415

195 F.3d 415 (8th Cir. 1999)

United States of America, Appellee, v. Dondi Holland,Appellant.

No. 98-2572

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: January 12, 1999

Decided: October 29, 1999

Appeal from the United States District Court for the Eastern District of Missouri.

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge

Dondi Holland pleaded guilty to a federal indictment charging him with two counts of possessing with the intent to distribute cocaine and crack cocaine. At sentencing, the district court¹ determined that Holland, although then only age 22, was already a "career offender" under the United States Sentencing Guidelines, because he had two prior Missouri adult convictions for controlled substance offenses involving. drug trafficking. The district court established that the appellant's sentencing range as a career offender was 188 to 235 months and, after granting the government's motion for a substantial assistance departure, sentenced Holland to 60 months' confinement.At sentencing, Holland objected to the presentence investigation report's (PSIR) proposed classification of him as a career offender, arguing that his April 29, 1994, Missouri state conviction was not countable as a predicate prior conviction for career offender purposes. The district court adopted the Guidelines applications contained in the PSIR and overruled Holland's objection, and it is from that ruling that Holland appeals. Absent his designation as a career offender, Holland's sentencing range would have been 57 to 71 months before any substantial assistance departure was awarded.

"We review de novo the district court's construction and interpretation of Chapter Four of the Guidelines, and we review for clear error the district court's application of Chapter Four to the facts." United States v. Jones, 87 F.3d 247, 248 (8th Cir.), cert. denied,. denied, 519 U.S. 956, 117 S. Ct. 374 (1996).

In order to be classified as a "career offender" under the career offender guideline, United States Sentencing Guidelines Manual 4B1.1(1997), a defendant must have at least two prior adult felony convictions of either a crime of violence, or a controlled substance offense which involves drug trafficking (the manufacture, distribution, or dispensing of a controlled substance or possession of a controlled substance with the intent to do any of those things), and the sentences for those prior offenses must be separately countable for Sentencing Guidelines criminal history calculation purposes. USSG 4B1.2(c).

Holland's disputed state court conviction occurred on April 29, 1994, when, at age 18, he pleaded guilty in Missouri state court to an adult charge of possession with intent to deliver/sell a controlled substance. The offense itself had occurred the previous October 23rd when Holland was age 17. After the plea of guilty, the state trial court suspended the imposition of any sentence and placed Holland on probation for five years. Holland's other predicate drug trafficking conviction for career offender status (and about which no dispute exists) occurred when he pleaded guilty in Missouri state court to three felony counts of delivery of a controlled substance occurring on three separate days. For those offenses, he was sentenced to concurrent five year terms of imprisonment which were suspended, and he was placed on probation.

Holland's principal argument is that his April 29, 1994, conviction for possession with intent to deliver/sell a controlled substance for which the imposition of sentence was suspended by the state court (the "SIS conviction") should not be counted against him under the career offender guideline because no sentence was imposed by the state court. He relies on the language of USSG 4A.1.2(d)(2)(B) and application note 7 to the cited section. His argument brings into focus a perceived tension between USSG 4A1.2(a)(3) and 4A1.2(d)(2)(B).

We begin the analysis by examining USSG 4A1.2, which is titled "Definitions and Instructions for Computing Criminal History." Section 4A1.2(a)(3) provides that "[a] conviction for which the imposition or execution of sentence was initially suspended or stayed shall be counted as a prior sentence under 4A1.1(c)." Sentences counted under 4A1.1(c) receive one criminal history point and are therefore countable as a qualifying predicate conviction under the career offender guideline. See 4B1.2(c). While 4A1.2(a) is titled "Prior Sentence Defined," both 4A1.2(a)(3) and (4) turn previous convictions for which no sentence has ever been imposed into "prior sentences." See 4A1.2(a)(3), ante, and (4) ("where a defendant has been convicted of an offense, but not yet sentenced, such conviction shall be counted as if it constituted a prior sentence under 4A1.1(c) . . ."). Hence, under 4A1.2(a)(3), Holland's SIS conviction should be considered a "prior sentence," assessed one criminal history point, and be countable as a qualifying predicate conviction for the purposes of the career offender guideline.

Holland's contention is that 4A1.2(d)(2)(B) precludes the use of his...