U.S. v. McCarthy, 472

• Decision Date: 11 April 1995
• Docket Number: D,No. 472,472
• Citation: 54 F.3d 51
• Parties: UNITED STATES of America, Appellee, v. John J. McCARTHY, Defendant-Appellant. ocket 94-1072.
• Court: U.S. Court of Appeals — Second Circuit

Page 51

54 F.3d 51

UNITED STATES of America, Appellee, v. John J. McCARTHY, Defendant-Appellant.

No. 472, Docket 94-1072.

United States Court of Appeals Second Circuit.

Argued Dec. 19, 1994.

Decided April 11, 1995.

Steven M. Statsinger, Legal Aid Soc., Federal Defender Div., Appeals Bureau, New York City, for defendant-appellant.

John H. Durham, Asst. U.S. Atty., for the D. of Conn., Counsel (Christopher F. Droney, U.S. Atty., D. of Conn.), for appellee.

Before: VAN GRAAFEILAND, WALKER, and CABRANES, Circuit Judges.

WALKER, Circuit Judge:

On January 28, 1994, following a jury trial in the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Judge ), John J. McCarthy was convicted on two counts of possession of a weapon by a previously convicted felon in violation of 18 U.S.C. Sec. 922(g). The district court sentenced him to a 235-month term of imprisonment under U.S.S.G. Sec. 4B1.4 (1993), followed by five years of supervised release. In this appeal, McCarthy raises a number of challenges, both pro se and through counsel. Having examined all of McCarthy's pro se claims and found them to be without merit, we turn to the claims raised by counsel. Among those points are McCarthy's assertions that his sentence was inappropriate and that the trial below was unfair.

McCarthy attacks his sentence on two grounds: that U.S.S.G. Sec. 4B1.4 is invalid because the Sentencing Commission lacked the statutory authority to promulgate the provision, and that even if the Commission had such authority, it exceeded its authority because the minimum sentence applicable under Sec. 4B1.4, which enhances sentences for defendants considered armed career criminals pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Sec. 924(e), exceeds the statutory minimum under the ACCA.

To support his first claim, McCarthy argues that Sec. 4B1.4 conflicts with the enabling statute for the Sentencing Commission, 28 U.S.C. Secs. 991-98. Congress, he contends, authorized the Commission to establish "categories of offenses." See 28 U.S.C. Secs. 994(b), (c). It did not, however, expressly authorize the Commission to establish guidelines for the ACCA, he continues, because the ACCA is a sentence enhancement statute and does not create a substantive offense. Consequently, McCarthy concludes, U.S.S.G. Sec. 4B1.4 is unauthorized.

McCarthy's reading of the enabling statute is incomplete. The statute states elsewhere that:

The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant--

(1) has a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions.

28 U.S.C. Sec. 994(i) (emphasis added); see also 18 U.S.C. Sec. 3553(a)(1) (including among the factors "to be considered in imposing a sentence ... the history and characteristics of the defendant."). In addition, the enabling statute requires the Commission to consider whether the defendant's criminal history, among other factors, has any relevance to the appropriate sentence. 28 U.S.C. Sec. 994(d)(10). Thus, putting aside the question whether the ACCA creates a substantive offense, it is plain that repeat felony offenders who would qualify for sentencing under the ACCA constitute a category of defendants.

Finally, U.S.S.G. Sec. 4B1.4 is consistent with Congress's intent to have the guidelines provide "a comprehensive and consistent statement of the Federal law of sentencing" that would "structure judicial sentencing discretion [and] eliminate indeterminate sentencing." S.Rep. No. 225, 98th Cong., 1st Sess. 39, reprinted in 1984 U.S.C.C.A.N. 3182, 3222, 3248. Prior to the promulgation of Sec. 4B1.4, sentencing courts were faced "with the difficult task of integrating two fundamentally different sentencing paradigms--a mandatory statutory minimum and the guidelines." United States v. Tisdale, 7 F.3d 957, 963 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1201, 127 L.Ed.2d 549 (1994). Section 4B1.4 was designed to offer a more consistent approach to sentencing armed career criminals.

In light of the foregoing, McCarthy's assertion that the Commission lacked authority to promulgate Sec. 4B1.4 because the enabling statute does not specifically refer to "a defendant's eligibility for a statutory sentence enhancement under the A.C.C.A." rings hollow. In authorizing the Commission to issue guidelines "consistent with all pertinent provisions of title 18," Congress surely was not required to specify each and every applicable provision within the title. Consequently, we easily hold that the Commission acted within its authority in promulgating Sec. 4B1.4.

McCarthy next contends that even if the Commission had such authority, it exceeded that authority because Sec. 4B1.4 imposes a minimum sentence that is greater than the minimum sentence set by the ACCA. The ACCA provides a mandatory minimum sentence of 15 years, or 180 months, for defendants convicted of violating 18 U.S.C. Sec. 922(g) who have three previous felony convictions for a violent felony or serious drug offense. 18 U.S.C. Sec. 924(e)(1). McCarthy claims that, under U.S.S.G. Sec. 4B1.4, the minimum specified offense level is 33, Sec. 4B1.4(b)(3)(B), and the minimum criminal history is Category IV, Sec. 4B1.4, Commentary, Background, which results in a sentencing range of 188-235 months, U.S.S.G. Ch. 5, Pt. A. Therefore, he contends, the minimum sentence under the guidelines exceeds the statutory minimum by 8 months.

The minimum sentence under Sec. 4B1.4, however, is not 188 months. McCarthy overlooks the downward adjustment specified in the guideline: namely, he ignores the explicit requirement that if the defendant is entitled to a reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, the district court must "decrease the offense level by the number of levels corresponding to that adjustment." Sec. 4B1.4(b)(3)(B). Since an adjustment under Sec. 3E1.1 may result in as much as a three-level reduction, the defendant's offense level could ultimately reach 30, resulting in a sentencing range of 135-168 months. U.S.S.G. Ch. 5, Pt. A. Thus, while the minimum possible sentence without an adjustment for acceptance of responsibility is 188 months--8 months greater than the statutory minimum--the application of such an adjustment, if there were no statutory minimum, could result in a sentence, under Sec. 4B1.4(b)(3), as low as 135 months. Therefore, as mandated by the enabling statute, and contrary to McCarthy's argument, the guideline range is entirely consistent with the ACCA's statutory range, as required by 28 U.S.C. Sec. 994(b)(1) (The Commission must "establish a sentencing range consistent with all pertinent provisions of title 18.") (emphasis added).

Moreover, Sec. 4B1.4 does not conflict with U.S.C. Sec. 924(e)(1) because a sentencing judge has discretion to adjust the sentence downward to the statutory minimum, see U.S.S.G. Ch. 5, Pt. K, or even below the statutory minimum in the event of a Sec. 5K1.1 departure for cooperation. We therefore hold that the Sentencing Commission did not exceed its authority and that McCarthy was properly sentenced under Sec. 4B1.4.

We now turn briefly to McCarthy's remaining claims. First, he contends that the district court erred in denying his motion, pursuant to Federal Rule of Criminal Procedure 33, seeking a new trial on the basis of newly discovered evidence. This evidence was an interim psychiatric report, which the defense obtained a few days after the jury verdict.

Questions regarding McCarthy's competency first arose when, prior to the impaneling of the jury, he filed a motion to waive counsel and proceed pro se. Before ruling on this motion, the court ordered a competency examination of McCarthy. During the competency hearing, the physician who examined McCarthy expressed concern that McCarthy was not competent to assist in his own defense. It was later revealed that during the...