U.S. v. Jones

• Decision Date: 24 November 1992
• Docket Number: No. 91-5826,91-5826
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Robert William JONES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 105

977 F.2d 105

UNITED STATES of America, Plaintiff-Appellant, v. Robert William JONES, Defendant-Appellee.

No. 91-5826.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1992.

Decided Sept. 24, 1992.

As Amended Nov. 24, 1992.

Thomas Michael Gannon, U.S. Dept. of Justice, Washington, D.C., argued (E. Bart Daniel, U.S. Atty. and Alfred W. Bethea, Jr., Asst. U.S. Atty., Florence, S.C., on brief), for appellant.

James T. McBratney, Jr., Rogers, McBratney & Josey, Florence, S.C., for defendant-appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PHILLIPS, Circuit Judge:

This is the second appeal in this case. In the first, Robert William Jones challenged his conviction and sentence, as a career offender, for armed robbery and use of a firearm during a crime of violence. We held then that the district court had erred in declining, on the basis that it lacked jurisdiction, to consider Jones' attempt to challenge as unconstitutional a prior state felony conviction used to establish his career offender status. We vacated the sentence and remanded for resentencing, holding that the district court did have jurisdiction to consider the constitutional challenge, but also had discretion to impose conditions upon which the challenge could be raised and considered. On remand, the district court entertained Jones' challenge to his prior conviction and upheld the challenge, declining thereupon to sentence him as a career offender. The government then brought this appeal, challenging the court's failure to count the prior state conviction and, on its basis, to find Jones a career offender.

Because, exercising an informed discretion, the district court should not have found Jones' constitutional challenge sufficiently supported to warrant not "counting" the prior state conviction, we reverse and remand for re-sentencing Jones as a career offender.

I

In June of 1988, Jones and his co-defendant, Donald Johnson, robbed Anchor Bank in Myrtle Beach, South Carolina, of $9,949. While Johnson brandished a revolver, Jones vaulted the bank counter and removed money from the teller stations. At trial, after evaluation of surveillance photographs and testimony by eyewitnesses, a jury found Jones guilty of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c).

Jones' presentence report (PSR) revealed that in 1978 he had been sentenced to imprisonment for one year after pleading guilty in a New York court to attempted robbery. According to the PSR's account of the 1978 offense, Jones had approached the complainant and asked for a cigarette. The complainant responded that she did not have one and crossed the street to get away from Jones. Jones followed her, placed a knife near her throat and demanded money. According to the PSR Jones also placed his hand inside the complainant's blouse. After she pushed the hand away and fled, she found a police officer who searched the area, arrested Jones and recovered the weapon.

The PSR also stated that in January of 1981 a jury in New York convicted Jones of robbery, and that he was sentenced to a term of seven to fourteen years' imprisonment. As a result of the 1978 and 1981 convictions, and because Jones was more than eighteen years old when he committed the instant offense of armed bank robbery, the PSR recommended that, for purposes of the armed robbery count, Jones be sentenced as a career offender under Sentencing Guidelines § 4B1.1 ¹, with a total offense level of 34, a criminal history category of VI, and a guidelines sentencing range of 262-327 months.

At sentencing Jones argued that his 1978 New York conviction for attempted robbery should not be considered in determining his sentence calculation for the instant offense because the 1978 conviction had resulted from an unconstitutional, involuntary guilty plea. Jones contended that his attorney had spent only fifteen minutes with him before recommending that he plead guilty, that the attorney had pressured him by telling him that he faced 25 years in prison if he refused to plead guilty and accept one year's imprisonment, and that his attorney incorrectly assured him that his conviction would eventually be converted from a felony to a misdemeanor.

The district court declined to address Jones' challenge, saying that it lacked jurisdiction to consider the constitutionality of his prior state conviction, even for the strictly limited purpose of deciding whether the conviction could be "counted" in sentencing for the instant offense. The district court adopted the recommendations contained in the PSR and sentenced Jones to a total of 322 months' imprisonment, which included a mandatory consecutive 60-month sentence on the weapons count.

On appeal we affirmed Jones' conviction, but vacated his sentence on the ground that the district court erred by declaring that it lacked jurisdiction to consider Jones' challenge to the constitutionality of his 1978 state conviction. United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991) (Jones I ). We determined that such challenges were authorized by Application Note 6 to § 4A1.2 of the Sentencing Guidelines, which then provided that "[c]onvictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score." We stressed that although § 4A1.2 authorized a sentencing court to consider a challenge such as the one brought by Jones, the court remained free to impose strict procedural requirements on the presentation of such a challenge, and also retained its power under § 4A1.3 of the Guidelines to depart upwardly from the Guidelines range on the basis of conduct underlying the challenged conviction, even where that conviction had been determined to be invalid. Id. at 465-67.

Accordingly, we remanded Jones' case with instructions that the district court

[f]irst determine whether the defendants' challenges were properly presented under the court's procedures. If so, the court should give the defendants such opportunity to present evidence concerning the prior convictions as the court deems necessary to a meaningful exercise of its sentencing authority.... If the defendants do carry their ... burden, the court may nonetheless consider making an upward departure under § 4A1.3 if it finds that the defendants' prior convictions provide reliable evidence of past criminal activity.

Id. at 469-70. After continuing the resentencing hearing for thirty days to allow Jones to gather evidence, the district court entertained his challenge.

At the hearing Jones again asserted that his attorney had spent insufficient time consulting with him and preparing his case, and that the attorney had told him that if he went to trial and was convicted he might receive a twenty-five year sentence. Jones contended that he was innocent of the crime, and that if he "had it to do over again today," he would not enter a guilty plea. Jones could not remember the name of the attorney who had represented him in 1978, and was unable to obtain a transcript of the 1978 plea proceeding. ²

Based solely on Jones' uncorroborated testimony regarding what transpired before his 1978 plea, the district court ruled that the conviction was invalid. The court recognized that "it is an easy thing for a person to come forward and make a claim such as Mr. Jones makes in this case. And I wish there were more evidence available." However, in spite of recognizing the weakness of Jones' evidence, the court found that

taking into consideration the age of Mr. Jones at the time this plea was entered [nineteen], and the small amount of time he was able to confer with an attorney, suggests that he did not receive the effective assistance of an attorney, certainly for the purpose of my considering that [that] offense may be taken into consideration to classify him a career offender.

And so, I'm of the view that Mr. Jones must prevail on his challenge.

Joint Appendix at 251. The court then resentenced Jones as a non-career offender to a total of 100 months' imprisonment.

The government now appeals Jones' resentencing.

II

Having held in Jones I that the district court had jurisdiction to entertain first instance constitutional challenges to prior convictions, we remanded for exercise of that jurisdiction. Jones I, 907 F.2d at 469-70. ³ But our instructions did not attempt to spell out in detail how the court should proceed. We were content to admonish--sufficiently we thought--that given the special difficulties that entertaining first instance challenges to prior state convictions might entail, the sentencing court had, and should exercise, "broad discretion, within bounds of due process, to control the manner of the challenge's presentation." Id. at 465. By this we meant to convey that the court could and should impose conditions for its consideration of particular challenges reflecting the special difficulties that those challenges might present for federal sentencing courts. Among the difficulties expressly or implicitly recognized in our opinion were the absence of the sentencing state as a party, possible staleness of the claims, the inadequacy or unavailability of state court records and witnesses from "far-flung jurisdictions," and the danger of "unduly protracted or delayed sentencing." Id. And we were at pains to emphasize, as we earlier had emphasized in United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989), that the burden was on a defendant to "show" the prior conviction's invalidity. Id. at 464.

It is now obvious from the district court's resentencing process and the result it reached, that our instructions did not sufficiently convey our intended meaning in this regard. As indicated, the court imposed no special conditions of presentation and proof...