U.S. v. Rich
| Citation | 900 F.2d 582 |
| Decision Date | 10 April 1990 |
| Docket Number | No. 319,D,319 |
| Parties | UNITED STATES of America, Appellee, v. Leo Walter RICH, Defendant-Appellant. ocket 89-1301. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John-Claude Charbonneau, Asst. U.S. Atty. (George J. Terwilliger, III, U.S. Atty. D.Vt., Charles A. Caruso, Asst. U.S. Atty., Rutland, Vt., of counsel), for appellee.
Geoffrey W. Crawford, (O'Neill & Crawford, Burlington, Vt., of counsel), for defendant-appellant.
Before VAN GRAAFEILAND, PIERCE, and PRATT, Circuit Judges.
Leo Walter Rich appeals a sentence imposed by the United States District Court for the District of Vermont, Franklin S. Billings, Chief Judge, following Rich's plea of guilty to one count of possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Since the record is unclear as to whether the district court would have imposed the same sentence if an overlapping Guidelines range had applied, we remand for clarification.
On December 1, 1987, Rich was found in possession of a .22 caliber revolver and ammunition. A two count indictment charged Rich with being a convicted felon in possession of a firearm and ammunition in violation of 18 U.S.C. Sec. 922(g)(1). On December 8, 1988, Rich pled guilty to the firearm possession charge, and the ammunition possession charge later was dismissed.
Since Rich's offense was committed after November 1, 1987, he was sentenced pursuant to the Sentencing Guidelines. See Sentencing Reform Act of 1984, 18 U.S.C.A. Sec. 3551 (West 1985 & Supp.1989). A presentence report prepared for the district court determined that Rich belonged in criminal history category V, based on a calculation of 10 criminal history points for prior offenses. Rich previously had been convicted of leaving the scene of an accident in Vermont State Court, and he had been placed on probation. Consequently, the presentence report added one point, pursuant to Guidelines Sec. 4A1.2(c)(1), for this prior Vermont conviction and two points, pursuant to Guidelines Sec. 4A1.1(d), because Rich had committed the present federal crime while on probation for the Vermont offense. Seven additional points were added for unrelated prior offenses.
Rich objected to the inclusion of the Vermont offense in computing his criminal history score, claiming that the offense did not meet the criteria set forth in Guidelines Sec. 4A1.2(c)(1). Section 4A1.2(c)(1) lists thirteen misdemeanor and petty offenses, including leaving the scene of an accident, that are not to be counted in the criminal history score unless "(A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense." Rich's principal contention was that he had not received a sentence of at least one year's probation for the leaving the scene offense.
An evidentiary hearing was held concerning Rich's objection to the criminal history score. At the hearing, a state probation officer testified that the leaving the scene offense occurred in December 1986 when Rich's car damaged one or more recreational vehicles at a dealership site. On August 3, 1987, Rich received a suspended sentence of nine to twelve months imprisonment for the offense and was placed on probation "until further order of the Court."
The probation officer further testified that the exact length of Rich's probation was subject entirely to post-sentencing factors, including Rich's compliance with the terms of probation. Among other conditions, the order placing Rich on probation required him to pay restitution "as directed by [the] probation officer" and to pay a $150 fine. The probation officer indicated that, in the normal course, Rich would have been discharged within a matter of months upon completing the payment of these amounts.
As it developed, Rich's probation period actually exceeded one year, in part because of a lingering dispute over the amount of restitution owed the vehicle dealer. Due to Rich's failure to pay any restitution, and his alleged violation of several general conditions of probation, the probation officer filed a petition for revocation of probation. On August 26, 1988, over one year after his state court sentence, Rich was discharged (unsatisfactorily) from probation for failing to comply with the conditions of probation. The matter of restitution eventually was dropped when the vehicle dealer failed to appear for a restitution hearing.
In a written opinion issued after the evidentiary hearing, the district judge addressed the question of whether Rich had been sentenced to a term of probation of at least one year as required by Guidelines Sec. 4A1.2(c)(1). He noted that in Vermont State Court most terms of probation are for an indefinite term, and he found that the extended length of Rich's probation resulted from his failure to pay restitution and his violation of several general conditions of probation. Since Rich in fact served over one year on probation, the judge concluded that the leaving the scene conviction, and Rich's probation status while committing the federal firearm offense, could be considered in calculating his criminal history points. As noted, the inclusion of the leaving the scene offense added 3 points to the total criminal history score, placing Rich in category V.
The district judge also determined that the total offense level was 8. The Guidelines sentencing range for category V and offense level 8 is 15-21 months. Applying this range, the district court imposed a sentence of 16 months imprisonment with a subsequent three year period of supervised release.
If the leaving the scene offense had been excluded, Rich's criminal history score would have been 7, placing him in category IV. Under this category, the Guidelines sentencing range relating to offense level 8 is 10-16 months. Although the sentence of 16 months does fall within this lower, overlapping range, the district court expressed no opinion as to whether it would impose the same sentence if the lower range applied.
Rich, who currently is incarcerated, argues that the district court erred in considering the leaving the scene offense in calculating his criminal history score and that the district court should resentence him under the lower Guidelines range.
Section 4A1.2(c)(1) of the Sentencing Guidelines provides that a prior conviction for leaving the scene of an accident may be considered when calculating a criminal history score if "the sentence was a term of probation of at least one year...." The Guidelines do not explicitly address whether a conviction resulting in an indefinite term of probation, but for which at least a one year period of supervision actually occurs, is excludable under Sec. 4A1.2(c)(1). That the Guidelines do not address this situation is not surprising since Vermont's general practice of imposing indeterminate probationary terms is relatively unique, at least within this circuit. See, e.g., N.Y.Penal Law Sec. 65.00(3) (McKinney 1987) (). But see Conn.Gen.Stat.Ann. Sec. 53a-29(d)(5) (West 1985) ().
Under Vermont law, a court may suspend all or part of a sentence and place the defendant on probation "for such time as it may prescribe in accordance with law or until further order of the court." Vt.Stat.Ann. tit. 28, Sec. 205 (1986). The court may end the probation "if such termination is warranted by the conduct of the offender and the ends of justice." Id., Sec. 251. Upon such discharge, "the probationer shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the crime." Id., Sec. 255.
Rich suggests several reasons why Guidelines Sec. 4A1.2(c)(1) should be interpreted to exclude from the criminal history calculation a non-felony offense for which an indefinite term of probation is imposed. He first contends that the literal requirement of Sec. 4A1.2(c)(1) as to the duration of probation is not met when a sentence is for an indefinite term of probation. He emphasizes that a "sentence" is the term of imprisonment or probation imposed by a court and not the length of time actually served. Since the Vermont State Court did not actually impose a sentence of at least one year's probation, Rich argues, the leaving the scene offense should have been excluded in calculating his criminal history score.
Rich also points to the rationale underlying Sec. 4A1.2(c)(1) in support of...
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