United States v. Dawn

• Decision Date: 28 June 2012
• Docket Number: No. 11–1774.,11–1774.
• Citation: 685 F.3d 790
• Parties: UNITED STATES of America, Appellee, v. LaQuann M. DAWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

685 F.3d 790

UNITED STATES of America, Appellee,

v.LaQuann M. DAWN, Appellant.

No. 11–1774.

United States Court of Appeals,

Eighth Circuit.

Submitted: Nov. 17, 2011.

Filed: June 28, 2012.

Robert Lamar Depper, Jr., argued, El Dorado, AR, for Appellant.

Matthew C. Quinn, USA, argued, Texarkana, TX, for Appellee.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

LaQuann Dawn challenges the sentence he received after pleading guilty to possessing with the intent to distribute more than five grams of a mixture or substance containing cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). He specifically challenges the district court's application of the career-offender enhancement under U.S.S.G. § 4B1.1, which applies when a defendant is convicted of a “crime of violence or a controlled substance offense” and “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Dawn argues that the government failed to establish that his prior Arkansas convictions for second-degree battery and second-degree sexual assault qualify as “crimes of violence” under § 4B1.1. We reverse and remand for resentencing.

I. Background

Pursuant to a written plea agreement, Dawn pleaded guilty to one count of possessing with the intent to distribute more than five grams of crack cocaine. The presentence investigation report (PSR) indicated that the base offense level for Dawn's conviction was 18. The PSR assessed Dawn a career-offender enhancement under U.S.S.G. § 4B1.1 for two prior felony convictions in the State of Arkansas involving crimes of violence, which raised his offense level to 34 and his criminal history category to VI.¹ The alleged crimes of violence were second-degree sexual assault in 2002 and second-degree battery in 2006. The PSR applied a three-level reduction for acceptance of responsibility, resulting in a total offense level of 31. Based on a criminal history category of VI and an offense level of 31, the PSR calculated a Guidelines range for Dawn of 188 to 235 months' imprisonment, followed by three to five years of supervised release.

Prior to sentencing, Dawn filed a written objection to the PSR's recommended career-offenderenhancement. In his objection, Dawn argued that the second-degree sexual assault and second-degree battery convictions could not be counted toward Dawn's career-offender status for three reasons: (1) the record contained no evidence that, at the time of the convictions, Dawn had counsel or waived his right to counsel; (2) using the convictions to calculate both his criminal history score and his sentencing score violated Dawn's due process rights; and (3) the record contained no evidence that the convictions were for crimes of violence.

At Dawn's sentencing hearing on March 25, 2011, the district court briefly addressed Dawn's objection:

Two prior crimes of violence plus drug offense, this equals a career offender pursuant to definitions of the guidelines. The court assumes counsel in all cases, generally court appointed counsel, defense attorney. The crimes of violence and drugs have been properly listed, so the court determined there is no double counting. Criminal offenses and criminal categories are two separate entities.

The court determined that the Guidelines range for Dawn's crack-cocaine offense was 188 to 235 months' imprisonment. Before imposing its sentence, the court heard from Dawn's counsel:

[DAWN'S COUNSEL]: Your Honor, I would only comment, the court has identified the guideline range. I'd ask the court to keep in mind the fact that as I reviewed the presentence report there are no prior criminal convictions for drugs in this particular case. What bumps this up to the higher level is the allegations of crimes of violence. I made my argument—

THE COURT: Yes, I've seen it.

[DAWN'S COUNSEL]:—in my objections that the court has seen it.

As the court considers the sentencing range in this case, I'd ask the court to keep in mind that ... this client has no prior criminal history for drug issues, so therefore, I would encourage the least amount that we could possibly give him.

The government responded to Dawn's counsel's statements:

[W]ith regard to the crimes of violence in this matter, the sexual assault in the second degree, as the PSR indicates, relates to the attempted rape of a minor child. The battery second degree conviction, I would proffer to the court relates to the defendant breaking the arm of a law enforcement officer during the attempted arrest of Mr. Dawn, which I believe both qualify as crimes of violence.

THE COURT: I think so. I've so ruled.

[GOVERNMENT]: Thank you, Your Honor.

To that, Dawn's counsel responded that “as to the issue of an officer being injured while my client was being arrested, he was—he never went to court on that issue, as he articulated to me. He has not had a conviction of that issue.” The district court overruled Dawn's objection, and sentenced Dawn to 188 months' imprisonment, followed by four years of supervised release.

II. Discussion

On appeal, Dawn contends that the district court erred when it determined that his prior Arkansas convictions for second-degree sexual assault and second-degree battery were for “crimes of violence.” Dawn avers that the court further erred by applying the career-offender enhancement under U.S.S.G. § 4B1.1(a) in the absence of any specific evidence of Dawn's convictions. He asks this court to remand the case with instructions to resentence him based on a total offense level of 18 and a criminal history category of II. ² The government concedes that the case must be remanded for resentencing; however, it contends that the record should be reopened on remand for the admission of evidence to determine whether Dawn's prior convictions were for crimes of violence.

A. Career–Offender Status

Dawn alleges that he is not a career offender under U.S.S.G. § 4B1.1(a) because second-degree sexual assault and second-degree battery are not categorically crimes of violence.

According to U.S.S.G. § 4B1.1(a),

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (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.

A “crime of violence” is:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). “[T]he term ‘physical force,’ as used in [§ 4B1.2(a)(1) ], means ‘violent force—that is, force capable of causing physical pain or injury to another person.’ ” United States v. Vinton, 631 F.3d 476, 485–86 (8th Cir.2011) (quoting Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010)) (holding that an offense in which the defendant attempted to cause, or knowingly caused, physical injury to another person by means of a deadly weapon was a crime of violence), cert. denied,––– U.S. ––––, 132 S.Ct. 213, 181 L.Ed.2d 115 (2011). To constitute a crime of violence under § 4B1.2(a)(2), the crime “must (1) present a serious potential risk of physical injury to another, and (2) be roughly similar, in kind as well as degree of risk posed, to the offenses listed in § 4B1.2(a).” United States v. Watson, 650 F.3d 1084, 1092 (8th Cir.2011) (quotations, alteration, and citation omitted). “ ‘[A] crime involves the requisite risk when the risk posed by the crime in question is comparable to that posed by its closest analog among the enumerated offenses.’ ” Id. at 1092–93 (alteration in original) (quoting Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011)).

“In determining whether a prior conviction was for a crime of violence, we apply a categorical approach, looking to the elements of the offense as defined in the ... statute of conviction rather than to the facts underlying the defendant's prior conviction.” United States v. Parks, 620 F.3d 911, 913 (8th Cir.2010), cert. denied,––– U.S. ––––, 132 S.Ct. 125, 181 L.Ed.2d 47 (2011). But if the statute is overinclusive, encompassing multiple crimes some of which constitute crimes of violence and some of which do not, “we apply a modified categorical approach that allows the sentencing court to look at the charging document, plea colloquy, and comparable judicial records to determine whether the prior offense was a crime of violence.” Id. We do not use these documents “to see how the particular crime at issue was committed”; rather, we use them “ only to determine which part of the statute the defendant violated.” United States v. Williams, 627 F.3d 324, 328 (8th Cir.2010) (emphasis in original) (quotation and citation omitted). We “then determine[ ] whether a violation of that statutory subpart constitutes a crime of violence in the ordinary case.” Id. (quotation and citation omitted).

The government concedes “that the district court should have followed a modified categorical approach in making its finding that Dawn's prior convictions [for second-degree battery and second-degree sexual assault] were crimes of violence.” “Confessions of error are, of course, entitled to and given great weight, but they do not relieve this [c]ourt of the performance of the judicial function.” Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (quotation and citation omitted). Thus, we must determine whether Arkansas's second-degree battery and second-degree sexual assault ...