U.S. v. Keller

• Decision Date: 07 July 1995
• Docket Number: No. 936,D,936
• Citation: 58 F.3d 884
• Parties: UNITED STATES of America, Appellee, v. Steven KELLER, Defendant-Appellant. ocket 94-1394.
• Court: U.S. Court of Appeals — Second Circuit

Page 884

58 F.3d 884

UNITED STATES of America, Appellee, v. Steven KELLER, Defendant-Appellant.

No. 936, Docket 94-1394.

United States Court of Appeals, Second Circuit.

Argued Feb. 3, 1995.

Decided July 7, 1995.

Terrence P. Buckley, Hauppauge, NY, for appellant.

Douglas T. Burns, Asst. U.S. Atty., E.D. of N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., David C. James, Asst. U.S. Atty., E.D. of N.Y., Brooklyn, NY, of counsel), for appellee.

Before: FEINBERG, CARDAMONE and McLAUGHLIN, Circuit Judges.

CARDAMONE, Circuit Judge:

Steven Keller appeals from the sentence imposed on him by the United States District Court for the Eastern District of New York (Wexler, J.) after he pled guilty to the crime of possessing a firearm while a convicted felon. His principal contention is that the sentencing court erred by not crediting against his federal sentence the time he had already served in state prison for the offense in which the firearm was used.

The nub of the problem on this appeal is seen by examining the different provisions found in the sentencing guidelines at the time of Keller's offense (the 1989 Guidelines) and when sentence was imposed (the 1993 Guidelines). When appellant robbed at gunpoint a female courier about to deposit $7,000 of her employer's cash receipts in a bank in Huntington, New York, the 1989 Guidelines gave no credit to federal defendants for time already served in state prison. The 1993 Guidelines give such credit when the defendant is subject to an undischarged term of imprisonment resulting from offenses taken into account in determining the federal sentence; but the 1993 Guidelines, unlike the 1989 Guidelines, also include an enhanced sentence for a person guilty of possession of a firearm who has been convicted of three violent felonies.

Keller seeks credit for time served in state prison pursuant to the 1993 Guidelines and application of the 1989 Guidelines to avoid having his federal sentence enhanced for possessing a firearm after he had been convicted of three violent felonies. In effect, he would have the sentencing court pick and choose the best parts of both worlds, that is, those parts of the earlier and later guidelines most advantageous to him. The fair administration of criminal justice does not call for sentencing courts to perform such a convoluted sentencing procedure. Nonetheless, since no ex post facto violation occurs when applying the 1993 Guidelines as a whole, Keller was improperly sentenced by the district court under guidelines no longer in effect at the time of his sentencing. We therefore vacate his sentence and remand for resentencing.

BACKGROUND

The facts are not disputed. On June 29, 1990 appellant committed an armed robbery. Displaying a Smith & Wesson revolver, he robbed a female courier in a bank parking lot and left her handcuffed to the steering wheel of her car. He was apprehended and pled guilty in state court to robbery in the second degree, a crime involving the display of a firearm, for which he was sentenced on December 5, 1990 to serve four to eight years in state prison.

More than two years later, on March 4, 1993, a federal grand jury in the Eastern District of New York charged appellant in a two-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1) (1988), and possession of a firearm by a person convicted of three violent felonies, in violation of 18 U.S.C. Sec. 924(e)(1) (1988). The federal charges relate to the same weapon used in the June 29, 1990 armed robbery.

Keller entered into a plea agreement with the government under which he pled guilty to the Sec. 922(g) violation (possession of a firearm by a convicted felon) and the government agreed to dismiss the Sec. 924(e) charge (possession of a firearm by a person convicted of three violent felonies), which latter charge carried a mandatory minimum sentence of 15 years. The plea agreement estimated a guidelines imprisonment range of 92-115 months for appellant's offense level and criminal history.

The presentence investigation report, prepared by the U.S. Probation Office, applied the 1989 Guidelines because it was thought that an ex post facto problem would arise were Keller sentenced under the 1993 Guidelines. While Keller did not specifically object to this recommendation, he did take issue with numerous aspects of the presentence report, contending that guideline Sec. 5G1.3(b) of the 1993 Guidelines ¹ should be applied to credit him for the time served in state custody. He maintained further that he should receive a three-point reduction for acceptance of responsibility, a level of reduction available under the 1993 Guidelines, but not under the 1989 Guidelines. At his sentencing hearing on June 30, 1994 appellant reiterated his argument that he be given credit for time served in state custody. Applying the 1989 Guidelines that afforded no such credit, the district court sentenced Keller to 92 months imprisonment, three years supervised release and a $50 special assessment, the 92 months to run concurrently with the time remaining to be served on his state sentence. From this sentence, Keller appeals.

DISCUSSION

Appellant challenges the failure to credit the time served in state prison against his 92 month federal sentence and the failure to credit him for time he had already been held in federal custody prior to his federal sentencing. Keller also avers the criminal history category used to calculate his sentence was incorrectly determined. In addition, he maintains that the 27 month delay from the imposition of his state sentence until federal prosecution was initiated denied him due process of law. We discuss these issues in turn.

I What Guidelines Apply?

A. Plain Error

The primary error alleged by Keller is the district court's failure to credit the time he had served in state prison for armed robbery against his federal sentence for possession of a firearm while a convicted felon. Appellant argues that his sentence is controlled by an amendment to the sentencing guidelines enacted after the date of his offense but before he was sentenced. His point is that either the amendment simply clarified the guidelines existing at the time of the offense or, alternatively, the guidelines in effect at the time of his sentencing should be applied. If application of the amended guidelines poses an ex post facto problem, he continues, a sentencing court is empowered to excise any single provision. Specifically, he contends that the sentencing court should have applied the 1993 Guidelines without their thrice-convicted violent felon enhancement.

Keller's point essentially calls into question whether an ex post facto issue would have existed had the 1993 Guidelines determined his sentence. Because he did not explicitly object to the use of the 1989 Guidelines, we may reverse only if their application constituted plain error. See Fed.R.Crim.P. 52(b); see also United States v. Keppler, 2 F.3d 21, 23-24 (2d Cir.1993) (collecting cases).

Plain error exists where an error or defect affects a defendant's substantial rights and results in a manifest injustice. As our analysis will show, Keller's sentence under the 1993 Guidelines would be significantly lower than the range provided for under the 1989 Guidelines. Thus, the question of which version of the guidelines applies raises a fundamental issue substantially affecting the amount of time this defendant will be incarcerated, and it is therefore subject to review for plain error. See United States v. Hernandez-Fundora, 58 F.3d 802, 813 (2d Cir.1995) (plain error where resulting five year sentence exceeds the 41-51 month range absent the error), cert. denied, --- U.S. ----, 115 S.Ct. 2288, 132 L.Ed.2d 290 (1995); cf. Keppler, 2 F.3d at 24 (if defendant could have received same sentence without error, error does not amount to "plain error"). Accordingly, we consider the merits.

B. Ex Post Facto Clause and Sentencing Guidelines

On November 1, 1990, after Keller committed the June 1990 robbery but before his June 1994 sentencing, guideline Sec. 4B1.4, the armed career criminal guideline, became effective. That guideline subjects a defendant to an enhanced sentence for possessing a firearm after having been convicted of three violent felonies. Application of this new provision, in isolation, would have resulted in an increase in Keller's federal sentence. To avoid this ex post facto problem, the presentence report recommended using the guidelines in effect on June 29, 1990, the date of Keller's offense, which is exactly what the sentencing court did.

Generally, a sentencing court must use the version of the guidelines in effect at the time of defendant's sentencing, not that extant at the time of the offense. See 18 U.S.C. Sec. 3553(a)(4) (1988); see also United States v. Reese, 33 F.3d 166, 173 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 756, 130 L.Ed.2d 655 (1995). Yet, when the guidelines are amended after the defendant commits a criminal offense, but before he is sentenced, and the amended provision calls for a more severe penalty than the original one, those guidelines in effect at the time the offense was committed govern the imposition of sentence. The reason for this is to avoid a violation of the Ex Post Facto Clause of the Constitution, Art. I, Sec. 9, cl. 3. See generally Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 2450-53, 96 L.Ed.2d 351 (1987).

Since the earliest days of our Republic it was understood that that clause prohibits, among other things, application of a "law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). To violate this constitutional prohibition a statute (1) "must be retrospective, that is, it must apply to events occurring before its enactment," and (2) "must disadvantage the offender affected by...