U.S. v. Pearson

• Decision Date: 21 August 1990
• Docket Number: No. 90-8072,90-8072
• Citation: 910 F.2d 221
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lewis PEARSON, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 221

910 F.2d 221

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lewis PEARSON, Defendant-Appellant.

No. 90-8072

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1990.

Walter M. Reaves, West, Tex. (Court-appointed), for defendant-appellant.

LeRoy Morgan and Philip Police, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, DAVIS, and BARKSDALE, Circuit Judges.

POLITZ, Circuit Judge:

Convicted on a guilty plea of distributing cocaine, and sentenced to 240 months imprisonment, Jerry Lewis Pearson appeals, contending that enhancement of his sentence under the career offender provisions of the Sentencing Guidelines was unlawful because he was not given notice of the possibility of enhancement prior to entry of his plea. We find no error and affirm.

Background

In exchange for dismissal of the first count of a two-count indictment Pearson pled guilty to distribution of cocaine, 21 U.S.C. Sec. 841(a)(1). Before Pearson entered into the plea bargain his attorney discussed with the prosecutor whether Pearson would be considered a career offender under Guideline Sec. 4B1.1. Based on information in a Texas Department of Public Safety Report the attorneys concluded that he was not. After entry and acceptance of the plea, however, the probation office prepared a presentence investigation report which came to a different conclusion. Whereas the Department of Public Safety Report showed no disposition of a 1987 arrest for delivery of a controlled substance, the PSI report noted a conviction and 15-year sentence for that offense. ¹ The conviction for the 1987 offense served as one of the two prior convictions required to trigger career offender status under Guideline Sec. 4B1.1. Applying the guideline enhancement the court sentenced Pearson to 240 months imprisonment, the statutory maximum. Pearson timely appealed.

Analysis

Guideline Sec. 4B1.1 provides:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Guidelines direct that a career offender's criminal history category be deemed to be Category VI, the highest of the guideline categories, and that the applicable offense level is to be the higher of the level for the offense of conviction or that indicated by a special table. This table establishes offense levels designed to accomplish the congressional mandate that the Guidelines prescribe sentences for career offenders at or near the statutory maximum. 28 U.S.C. Sec. 994(h); Guideline Sec. 4B1.1 Background. The classification of Pearson as a career offender subjected him to sentencing at offense level 32, the category for career offenders committing crimes subject to a statutory maximum sentence of 20 to 25 years. Had he not been deemed a career offender Pearson's offense level would have been 12.

Pearson does not contest the fact of his conviction for the 1987 offense or otherwise challenge the determination that he satisfied the three prerequisites for classification as a career offender. Rather, he attacks the validity of his guilty plea and his sentence on the grounds that he was not informed, prior to entry of his plea, of the applicability of the Guideline Sec. 4B1.1 career offender enhancement. He maintains that his guilty plea was involuntary because his decision to enter it was based on the expectation that he would not be sentenced as a career offender. He further argues that this lack of notice otherwise violated the due process clause and the provisions of Fed.R.Crim.P. 11(c)(1) which require the court to inform a defendant of the mandatory minimum and maximum sentence before accepting a guilty plea. These contentions lack merit.

Due process requires that a guilty plea be a knowing and voluntary act; the defendant must be advised of and understand the consequences of the plea. Barbee v. Ruth, 678 F.2d 634 (5th Cir.), cert. denied, 459 U.S. 867, 103 S.Ct. 149, 74 L.Ed.2d 125 (1982). "The consequences of a guilty plea, with respect to sentencing, mean only that the defendant must know the maximum prison term and fine for the offense charged. As long as [the defendant] understood the length of the time he might possibly receive, he was fully aware of his plea's consequences." United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990), quoting Barbee, 678 F.2d at 635. The court informed Pearson prior to accepting his guilty plea that he faced a maximum prison term of 20 years. That turned out to be the sentence imposed. Pearson's plea was thus voluntary, and the strictures of the due process clause as to this point were satisfied.

Due process also requires adequate notice of the possibility of sentence enhancement based on recidivism. This is to assure a defendant an opportunity to contest timely the propriety of the enhancement. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The PSI report gave Pearson adequate notice. It concluded that he qualified as a career...