U.S. v. Townsend

• Decision Date: 10 May 2005
• Docket Number: No. 04-3110.,04-3110.
• Citation: 408 F.3d 1020
• Parties: UNITED STATES of America, Appellee, v. Dijuane Shante TOWNSEND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1020

408 F.3d 1020

UNITED STATES of America, Appellee, v. Dijuane Shante TOWNSEND, Appellant.

No. 04-3110.

United States Court of Appeals, Eighth Circuit.

Submitted: March 4, 2005.

Filed: May 10, 2005.

John P. Messina, Attorney Federal Public Defender, argued, Des Moines, IA, for appellant.

Robert L. Teig, Asst. U.S. Attorney, argued, Cedar Rapids, IA, for appellee.

Before RILEY, SMITH, and BENTON, Circuit Judges.

RILEY, Circuit Judge.

Dijuane Shante Townsend (Townsend) pled guilty to possessing firearms after being convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). The district court¹ sentenced Townsend to 46 months imprisonment and three years supervised release. Townsend appeals, arguing (1) a prior Iowa burglary conviction should not have been counted in calculating his criminal history points, because the conviction was expunged, and (2) the burglary conviction should not have been assigned two criminal history points, because the seventy-five days jail time he received for violating his probation did not result from "revocations of probation" as contemplated by the United States Sentencing Guidelines (Guidelines). We affirm.

I. BACKGROUND

Townsend was charged in a two-count indictment. The first count alleged Townsend violated 18 U.S.C. §§ 922(g)(1) and 924(a)(2) by knowingly possessing firearms after having two previous convictions for failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12. The second count alleged Townsend violated 18 U.S.C. §§ 922(g)(9) and 924(a)(2) by knowingly possessing firearms after a previous conviction for a misdemeanor crime of domestic violence, in violation of Iowa Code sections 708.1 and 708.2(4). Townsend pled guilty to the second count, and the court dismissed the first count.

The United States Probation Office prepared a presentence investigation report (PSR), which outlined Townsend's prior criminal activity.² The PSR reported Townsend pled guilty in 1997 in Iowa state court to third-degree burglary of a business. Townsend received a deferred judgment and two years probation for the conviction. In October 1998, Townsend was found in contempt for violating his probation on the third-degree burglary conviction and was sentenced to thirty days in jail. In August 1999, Townsend again was found in contempt for probation violations and was sentenced to forty-five days in jail. The state trial court later discharged Townsend's probation and expunged the file on the 1997 third-degree burglary conviction. In March 2001, Townsend was sentenced on two separate drug tax stamp violations, and he received a five-year suspended sentence and three years probation on the condition he spend one year in a community corrections center. In April 2001, Townsend was fined after being found guilty of assault. In June 2001, Townsend was fined after he pled guilty to assaulting his girlfriend.

Even though Townsend received a deferred judgment on the third-degree burglary conviction, the district court counted the conviction and the cumulative seventy-five days in jail Townsend received for the two probation violations, and assessed two criminal history points against Townsend. This calculation, when added to his other convictions, resulted in a criminal history category of IV and a total offense level of 17, for a sentencing range of 37 to 46 months imprisonment under the Guidelines. The district court sentenced Townsend to 46 months imprisonment and three years supervised release.

II. DISCUSSION

A. Expunged Iowa Conviction

Townsend argues the expunged third-degree burglary conviction should not have been counted in calculating his criminal history score, because expunged convictions are excluded from criminal history under section 4A1.2(j) of the Guidelines. "We review de novo the district court's construction and interpretation of Chapter Four of the Guidelines, and we review for clear error the district court's application of Chapter Four to the facts." United States v. Holland, 195 F.3d 415, 416 (8th Cir.1999) (citation omitted). Decisions regarding offenses counted in a criminal history calculation are factual determinations subject to clear-error review. United States v. Paden, 330 F.3d 1066, 1067 (8th Cir.2003). Under the advisory Guidelines, the district court still may make factual findings in the court's sentencing assessments. See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005) ("The [] approach, which we now adopt, would ... make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct-a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve."); United States v. Antonakopoulos, 399 F.3d 68, 80 (1st Cir.2005) ("Under Booker, a judge may do such fact finding in determining the Guidelines range. Nothing in Booker requires submission of such facts to a jury so long as the Guidelines are not mandatory."). The sentence imposed must not be unreasonable. Booker, 125 S.Ct. at 765-66.

Congress has the constitutional authority for establishing and implementing sentencing goals. The Guidelines reflect the will of Congress and a Congressional desire for uniform and fair sentencing. See, e.g., 28 U.S.C. § 991(b)(1)(B) (noting one purpose of the United States Sentencing Commission (Commission) is to establish sentencing policies for the federal criminal justice system that provide certainty and fairness in sentencing and avoid unwarranted sentencing disparities); Id. § 994(f) (directing the Commission, in promulgating the Guidelines, to promote the purposes set out in section 991(b)(1), and to pay particular attention to the requirements of subsection 991(b)(1)(B)); U.S.S.G. ch. 1, pt. A (policy statement) (stating Congress' sentencing objectives are "an effective, fair sentencing system" sought through "honesty in sentencing[,]... uniformity in sentencing[, and] proportionality in sentencing"); Booker, 125 S.Ct. at 757, 767. Thus, our court must give the will of Congress, as represented in the Guidelines, due deference.

Under the Guidelines, courts are to add criminal history points for "each prior sentence," U.S.S.G. § 4A1.1, except for certain misdemeanors and petty offenses "for which criminal history points are added or not according to § 4A1.2(c)," United States v. Martinez-Cortez, 354 F.3d 830, 831-32 (8th Cir.2004). "A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered[.]" U.S.S.G. § 4A1.2(f). These prior adult diversionary dispositions are counted "if they involved a judicial determination of guilt or an admission of guilt in open court[,] ... reflect[ing] a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency." U.S.S.G. § 4A1.2, cmt. n. 9 (emphasis added). The Guidelines recognize various jurisdictions have different procedures by which prior convictions can be set aside or defendants pardoned for reasons unrelated to innocence or errors of law: "Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted." Id. cmt. n. 10 (citing U.S.S.G. § 4A1.2(j)). Unfortunately, the Guidelines do not expressly define the term "expunged," United States v. Hines, 133 F.3d 1360, 1362 (10th Cir.1998), but expunged convictions under section 4A1.2(j) appear to be those (1) reversed or vacated due to legal errors or later-discovered evidence exonerating the defendant, or (2) ruled constitutionally invalid. U.S.S.G. § 4A1.2, cmt. n. 6.

The Iowa deferred judgment statute provides that, "upon a plea of guilty, a verdict of guilty, or a special verdict upon which a judgment of conviction may be rendered," the court, "[w]ith the consent of the defendant, ... may defer judgment and may place the defendant on probation upon conditions as it may require.... Upon fulfillment of the conditions of probation and the payment of fees imposed..., the defendant shall be discharged without entry of judgment." Iowa Code § 907.3-907.3(1). The Iowa method of keeping records of deferred judgments is provided by statute: Upon a defendant's discharge from probation, if the judgment has been deferred, the court's criminal record of the deferred judgment is expunged. However, the record maintained by the state court administrator, as required by section 907.4, is not expunged, and expunction under section 907.9(4) is not absolute. See Iowa Code § 907.9(4). Court administrators are required to keep records of deferred judgments. These records are exempt from public access, but are available to judges, court clerks, and county attorneys. Iowa Code § 907.4.

The United States Supreme Court has analyzed the subject Iowa statute. In Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 108 & n. 4, 112-15, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), the Court considered whether Iowa's expunction provisions nullified the defendant's prior conviction for purposes of a federal statute. In concluding expunction does not alter the previous conviction's legality and does not mean a defendant was innocent of the prior crime, the Court observed, "[e]xpunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law." Id. at 115, 103 S.Ct. 986.

Federal law, not state law, determines whether a prior...