U.S. v. Thomas

• Decision Date: 08 March 1994
• Docket Number: No. 92-2112,92-2112
• Citation: 20 F.3d 817
• Parties: UNITED STATES of America, Appellee, v. Freddie Lee THOMAS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 817

20 F.3d 817

UNITED STATES of America, Appellee, v. Freddie Lee THOMAS, Appellant.

No. 92-2112.

United States Court of Appeals Eighth Circuit.

Submitted August 31, 1993.

Decided March 8, 1994.

Lee Lawless, Asst. Federal Public Defender, St. Louis, MO, argued, for appellant.

Joseph M. Landolt, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, JOHN R. GIBSON, ^* Senior Circuit Judge, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

In this case, we are asked to decide whether a district court may consider a constitutionally valid but uncounseled prior misdemeanor conviction when it determines a defendant's sentence for a subsequent conviction under the United States Sentencing Guidelines. We hold that a district court may do so consistent with the Sixth Amendment right to counsel.

I.

Freddie Lee Thomas was convicted by a jury of being a felon in possession of a firearm. See 18 U.S.C. Sec. 922(g)(1). The one-count indictment charged that Thomas knowingly possessed a firearm which had been transported in interstate commerce and that Thomas had previously been convicted of burglary in the second degree and of robbery in the second degree.

After Thomas's conviction, a probation officer prepared a Presentence Report (PSR). In computing Thomas's criminal history category, the probation officer scored several prior convictions he had acquired, including a misdemeanor charge for carrying a concealed weapon, a charge to which Thomas had pleaded guilty on August 7, 1985, and for which he had paid a $20 fine. See University City (Mo.) Ord. Sec. 23-36. Thomas objected to that part of the PSR, stating that he was not represented by counsel in connection with that misdemeanor conviction. The misdemeanor conviction added one criminal history point to Thomas's criminal history score. Based on the information in the PSR, the district court ¹ determined that Thomas's offense level was 12 and that his criminal history score was 12, resulting in a criminal history category of V. Because criminal history category V is reserved for those defendants with a criminal history score of 10, 11, or 12 points, the inclusion of the one point for the misdemeanor conviction did not affect the determination of Thomas's Guidelines range. He would have fallen in criminal history category V whether that conviction was scored or not. As a result, Thomas's Sentencing Guidelines range was 27-33 months. See U.S.S.G. Ch. 5, Pt. A (sentencing table). The district court sentenced Thomas to a 33-month term of imprisonment, to be followed by a two-year term of supervised release, and ordered him to pay a special assessment in the amount of $50.00. On appeal, Thomas challenges only his sentence.

A three-judge panel of this court initially affirmed the district court's sentence in a two-to-one decision. See United States v. Thomas, No. 92-2112, 1993 WL 105111 (8th Cir. Apr. 7, 1993) (unpublished), vacated, (8th Cir. May 20, 1993) (unpublished order). After Thomas sought rehearing en banc, the court granted rehearing en banc and vacated the panel's opinion. Because the panel's opinion has not been published in the Federal Reporter, we have appended a copy to this opinion.

Upon rehearing en banc by all active judges, we affirm the sentence imposed by the district court and hold that a district court may consider an otherwise constitutionally valid prior uncounseled misdemeanor conviction when determining a sentence for a defendant for a subsequent conviction under the Sentencing Guidelines.

II.

The government argues that Thomas's sentence is not reviewable because the inclusion of the prior uncounseled misdemeanor conviction did not affect Thomas's Guidelines range. Our jurisdiction over this appeal is defined by statute:

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range ...; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. Sec. 3742(a). Subsections (a)(3) and (a)(4) plainly do not apply, and subsection (a)(2) does not apply because Thomas does not allege an incorrect application of the Guidelines. ² Rather, Thomas alleges that he was sentenced in violation of the Constitution. Thus, we reinstate part II of the panel's opinion, see infra at App. 827-28, and conclude that we have jurisdiction to review Thomas's sentence.

III.

Although Thomas concedes that his prior uncounseled misdemeanor conviction is itself constitutionally valid and does not collaterally attack it, he argues that his present 33-month sentence is invalid because the sentencing court included the constitutionally valid but uncounseled misdemeanor conviction when calculating his criminal history category. Thomas also concedes that even if the sentencing court had not included the valid but uncounseled misdemeanor, his criminal history score would be an 11 and his criminal history category would have remained at V, resulting in the same 27- to 33-month range. The implication is, however, that if the sentencing court had not considered the uncounseled misdemeanor, Thomas may have received a sentence that was not at the top of the 27- to 33-month Guidelines range. The government urges us to affirm the district court.

A.

Before we address Thomas's argument, we will pause to consider whether addressing it is necessary. "Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision." Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985); see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Cf. McCurry v. Tesch, 824 F.2d 638, 640 (8th Cir.1987) ("statutes and court orders [should be] interpreted, if possible, to avoid constitutional issues"). Thus, we will first ask whether the district court in fact sentenced Thomas in reliance on his uncounseled misdemeanor conviction. We will do so under the assumption that Thomas has a right to a sentence that is not based on that conviction. If the district court did not impose a sentence that violates the right we assume to exist, we need not decide whether the right actually exists.

Thomas argues that the district court violated his Sixth Amendment right to counsel because the district court considered his prior uncounseled misdemeanor conviction when it imposed sentence. See United States v. Norquay, 987 F.2d 475, 482 (8th Cir.1993).

Thomas's prior uncounseled misdemeanor conviction was described in paragraphs 12-14 of the PSR. The district court overruled Thomas's objections to these paragraphs on the ground that U.S.S.G. Sec. 4A1.2, comment. (backg'd.), expressly provides that uncounseled misdemeanor convictions for which no imprisonment was imposed should be included in the criminal history score. (Tr. at 133-34.) Furthermore, in an addendum to the PSR, the probation officer noted that a departure was warranted for the reason that Thomas was only one criminal history point away from the next highest criminal history category. The district judge sustained in part Thomas's objections to the PSR's addendum by stating that he would not depart. (Tr. at 139.)

Because Thomas's prior uncounseled misdemeanor conviction was before the district court when it imposed sentence, and because we find no indication that the district court did not consider it, we must conclude that Thomas's sentence is based in part on his prior uncounseled misdemeanor conviction. If Thomas has a right to a sentence that is not based on his prior uncounseled misdemeanor conviction, then he was sentenced in violation of law.

We will proceed to address Thomas's argument that he has a right to a sentence that is not based on his valid but uncounseled prior misdemeanor conviction.

B.

Thomas's argument is based on the Sixth Amendment to the Constitution. "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Const. amend. VI. Before 1972, the Supreme Court had enforced the right to counsel in cases where defendants were convicted of felonies. See, e.g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court applied the right to counsel to a misdemeanor case where the defendant was convicted of carrying a concealed weapon and was sentenced to 90 days in prison. The Court stated, "no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Id. at 37, 92 S.Ct. at 2012. The Court further stated,

Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.

Id. at 40, 92 S.Ct. at 2014. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court made clear that a defendant is not entitled to counsel merely because the criminal charge he faces authorizes imprisonment. Rather, the right to counsel applies only when the defendant actually is sentenced to prison. Id. at 373-74, 99 S.Ct. at 1162 (stating that Argersinger "warrants adoption of actual...