U.S. v. Lee, 90-2944

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before CUMMINGS, POSNER, and FLAUM; FLAUM
• Citation: U.S. v. Lee, 941 F.2d 571 (7th Cir. 1991)
• Decision Date: 26 August 1991
• Docket Number: No. 90-2944,90-2944
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert A. LEE, also known as Robert A. Coleman, Defendant-Appellant.

Page 571

941 F.2d 571

UNITED STATES of America, Plaintiff-Appellee, v. Robert A. LEE, also known as Robert A. Coleman, Defendant-Appellant.

No. 90-2944.

United States Court of Appeals Seventh Circuit.

Argued July 9, 1991.

Decided Aug. 26, 1991.

Robert Haida, Asst. U.S. Atty., Criminal Division, East St. Louis, Ill., Laura J. Jones, Asst. U.S. Atty. (argued), Benton, Ill., for plaintiff-appellee.

George Ripplinger (argued), Ripplinger, Dixon & Johnston, Belleville, Ill., for defendant-appellant.

Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Robert Aaron Lee pleaded guilty to conspiracy to distribute a substance containing cocaine in violation of 21 U.S.C. § 846. In calculating Lee's sentence under the Sentencing Guidelines, the district court added two points to Lee's criminal history category pursuant to § 4A1.1(d) because it found that Lee had committed the offense while under a "criminal justice sentence." The only issue in this appeal is whether the court erred in that determination.

Section 4A1.1(d) requires the addition of two points to a defendant's criminal history category "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." In 1984, a Missouri state court sentenced Lee to a five-year term of probation, subject to certain conditions such as remaining in the state unless given permission to leave. One year later, a probation violation warrant was issued for Lee, who moved to East St. Louis, Illinois, in 1986. That warrant was never executed. Lee committed the federal offense in May 1989. Because Lee's term of probation would have expired in April 1989, the issue in this case is whether the arrest warrant tolled the probation period so as to allow the state court to retain jurisdiction over Lee on the probation charge.

We addressed an analogous situation in United States v. Dillon, 905 F.2d 1034 (7th Cir.1990), in which the government argued for a two-point addition to Dillon's criminal history category based upon a 1985 bench warrant that was outstanding from a conviction for drunk driving. In 1983, the Illinois circuit court convicted Dillon of driving under the influence, and required him to serve one year of court supervision and to pay a fine. Two months after the period of court supervision expired, the state filed a petition alleging that Dillon had violated a condition of the supervision by failing to pay the fine. Under Illinois law, a sentence of court supervision could be tolled if the petition alleging violations of conditions was filed before the period of supervision expired. Because the state failed to comply with that state-law requirement, we held that the petition failed to toll the period of supervision and therefore Dillon was not under a "criminal justice sentence" at the time of the federal offense. 905 F.2d at 1037. We noted in Dillon that fugitive status under an outstanding warrant may constitute a factor authorizing an upward adjustment, but that the existence of an outstanding warrant was not the equivalent of a "criminal justice sentence." 905 F.2d at 1037.

The same analysis employed in Dillon is applicable to this case. The relevant inquiry is whether, under Missouri state law, the arrest warrant extended the period of probation so that Lee was still within his period of probation at the time of his federal offense. As the court noted in Dillon, the mere existence of the warrant is insufficient to indicate that Lee is under a "criminal justice sentence."

Under Missouri law as it was at the time of the state offense, the state court retains power to revoke probation during the term of probation and

for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.

Mo.Ann.Stat. § 559.036 (Vernon 1979). This provision allows the court to retain jurisdiction over the probationer only for a period of time that is "reasonably necessary" and only if "every reasonable effort" is made prior to the expiration of the probation term. This requirement that the state act within a reasonable time was recognized by the Missouri Supreme Court in State v. Carlton, 552 S.W.2d 710 (Mo.1977), which interpreted an earlier probation provision. ¹ Carlton held that a court retains jurisdiction as long as the warrant is issued during the probationary period and is executed within a reasonable time after its issuance, even if execution occurs after the probationary period has expired. 552 S.W.2d at 714.

In the present case, the arrest warrant had still not been executed five years after its issuance. That time period is too long to be considered reasonable absent other circumstances. Rather, the delay would only be reasonable if circumstances indicated that the state exercised due diligence but was impeded in its efforts to execute the warrant. See e.g. United States v. Baty, 931 F.2d 8 (5th Cir.1991) (discussing Texas law); United States v. Strader, 503 F.2d 1081 (8th Cir.1974); Simon v. Moseley, 452 F.2d 306 (10th Cir.1971). ² For example, if Lee was concealing his identity to avoid detection, then five years might not be an unreasonable delay in executing the warrant. One court has noted that in determining whether a reasonable time has elapsed between issuance of the warrant and its execution, relevant factors include the conduct of the probationer (which might impede execution of the warrant) and the diligence (or lack of diligence) of the probation authorities. United States v. Gernie, 228 F.Supp. 329, 338 (S.D.N.Y.1964). ³ The government has presented no evidence in this case concerning the conduct of the probation...