United States v. Duerson

• Decision Date: 20 May 2020
• Docket Number: Criminal Action No. 5: 19-130-DCR-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. RICHARD C. DUERSON, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff, v. RICHARD C. DUERSON, Defendant.

Criminal Action No. 5: 19-130-DCR-1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION (at Lexington)

May 20, 2020

MEMORANDUM OPINION AND ORDER*** *** *** ***

Defendant Richard Duerson was convicted on November 27, 2019, following a jury trial of: (1) conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 846 (Count 1); (2) possession with intent to distribute a mixture or substance containing a detectable amount of 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(B) (Count 2); and (3) possession with intent to distribute a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(b)(1)(C) (Count 3). [Record No. 48] His sentencing hearing is presently scheduled for May 22, 2020.¹

The United States has filed a motion for an upward departure from the Criminal History Category ("CHC") III assigned to Duerson in his Presentence Investigation Report ("PSR") pursuant to United States Sentencing Guidelines Manual ("U.S.S.G.") § 4A1.3(a). Alternatively, the government requests an upward variance to account for the defendant's serious criminal history and the likelihood that he will commit other serious offenses when released from custody. [Record No. 58] The United States contends that a CHC III substantially under-represents the defendant's criminal history and the likelihood of recidivismand that a departure to a CHC IV, which would carry a new Guidelines range of 180-210 months, would be appropriate under § 4A1.3(a).² Duerson's second appointed counsel responded to the motion on March 13, 2020, indicating that a CHC III is appropriate, arguing that the United States' motion relies too heavily on pending state court charges. [Record No. 68] The Sentencing Memorandum filed by Duerson's recently-retained counsel incorporates the prior response by reference, indicates that these two state court cases have been dismissed, and contends that two other previously-dismissed charges should not factor into a departure analysis. [Record No. 90, p. 4]

The Court agrees that an upward departure is warranted. As a result, the government's motion will be granted, in part. The Court will reserve ruling on a variance pending the May 22, 2020 sentencing hearing.³ Further, for the reasons discussed more fully below, the defendant's one remaining objection to the PSR (identified in the Second Addendum to the PSR as defendant's objection number two) will be overruled.

I.

The United States Probation Office has determined that Duerson's total offense level is 32 and his CHC is III based on five criminal history points calculated according to U.S.S.G. § 4A1.1. [PSR ¶¶ 26, 44-45, 90]. This would generally provide for a range of imprisonment of151-188 months. U.S.S.G. § 5A (Sentencing Table). However, the United States filed a notice of statutory enhancement pursuant to 21 U.S.C. § 851, indicating that a conviction would carry an enhanced statutory penalty under 21 U.S.C. § 841(b)(1) because Duerson has a prior conviction for a serious violent felony. [Record No. 32] Thus, his subsequent conviction on Count 1 carries a statutory minimum sentence of fifteen years' imprisonment under 21 U.S.C. § 841(b)(1)(A). [PSR ¶ 89; 21 U.S.C. §§ 841(b)(1)(A) and 846] The PSR accounts for this minimum penalty, setting the adjusted Guidelines range at 180-188 months. [PSR ¶ 90]

As noted above, Duerson has objected to the statutory enhancement in his sentencing memorandum. [Record No. 90, p. 3] He claims that he was denied his constitutional right to counsel in the proceeding that the United States claims warrants the enhancement: a 2014 Kentucky state court conviction for assault in the first degree. At the time of this conviction, Duerson also entered a guilty plea to two counts of wanton endangerment in the first degree, and assault in the fourth degree. [See Record No. 32; PSR ¶¶ 42, 89.] Specifically, he argues that his counsel in that proceeding was constitutionally deficient because Duerson's decision to plead guilty was premised on counsel's misrepresentations that he would be eligible for shock probation. [Record No. 90, p. 3]

And although Duerson only objects to the imposition of the statutory enhancement, the Court notes that the validity of this prior conviction would have considerable bearing on his CHC (and a departure analysis) because the PSR calculates that the defendant has three criminal history points based on that conviction. [PSR ¶ 42] Thus, Duerson would have a CHC II if the Court were to disregard the subject conviction. [PSR ¶¶ 42, 45; U.S.S.G. § 5A (Sentencing Table)] That said, "a defendant may collaterally attack a prior conviction used for purposes of sentence enhancement only if (1) such attack is provided by statute, or (2) such attack is a constitutional one premised on a lack of counsel." United States v. Reed, 141 F.3d 644, 652 (6th Cir. 1998) (citing Custis v. United States, 511 U.S. 485, 493-97 (1994); United States v. Gonzales, 79 F.3d 413, 426-27 (5th Cir. 1996)). The United States Court of Appeals for the Sixth Circuit has recognized that these two narrow exceptions to the prohibition on collateral attacks at sentencing also apply to challenges to prior convictions that influence criminal history points and Guidelines ranges. E.g., United States v. Harder, 772 F. App'x 324 (6th Cir. 2019); see also United States v. Aguilar-Diaz, 626 F.3d 265, 269 (6th Cir. 2010).

However, a "lack of counsel" claim under these circumstances is not what Duerson believes it to be. A who collaterally attacks such a prior conviction must demonstrate that he was not appointed counsel at all rather than prove that counsel was deficient. E.g., United States v. Snow, 634 F. App'x 569, 572 (6th Cir. 2016) ("Instead [the defendant] can challenge the 2002 conviction only by arguing that he lacked counsel altogether in the 2002 case . . . . But [he] was undisputedly represented by counsel throughout his state-court proceedings, including his guilty plea . . . . That fact itself defeats his claim." (internal citations omitted)); United States v. Jenkins, 528 F. App'x 483, 486 (6th Cir. 2013) ("Jenkins and Jahns do not claim they lacked counsel in the Kentucky cases, only that their counsel rendered ineffective assistance due to conflicts of interest. This argument thus does not fall within the exception.") (citations omitted); Cole v. United States, No. 10-4029, 2013 WL 6068030, at *1 (6th Cir. Jan. 25, 2013) ("To prevail on such a challenge, a defendant must demonstrate a complete denial of the right to appointed counsel established in Gideon v. Wainwright, 372 U.S. 335 (1963)) (citation omitted).

Thus, although Duerson's argument, if successful, would affect his CHC and Guidelines range, it does not do so in this case because Duerson was actually represented by counsel in the Kentucky case at issue. [Record Nos. 90, p. 3 and 90-1] Based on the foregoing, the Court will proceed to consider the government's departure motion using the criminal history score provided in the PSR and his second objection to the PSR will be overruled.⁴

II.

The Guidelines provide that "[i]f reliable information indicates that the defendant's CHC substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted." U.S.S.G. § 4A1.3(a)(1). The Guidelines further state that such information may include:

(A) Prior sentence(s) not used in computing the criminal history category (e.g., sentences for foreign and tribal convictions).

(B) Prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions.

(C) Prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order.

(D) Whether the defendant was pending trial or sentencing on another charge at the time of the instant offense.

(E) Prior similar adult criminal conduct not resulting in a criminal conviction.

U.S.S.G. § 4A1.3(a)(2). Although "[a] prior arrest record itself shall not be considered for purposes of an upward departure under this policy statement," a sentencing court may consider a prior arrest "when the PSR provides specific facts surrounding the arrest." United States v. Matheny, 450 F.3d 633, 642 (6th Cir. 2006) (citing U.S.S.G. § 4A1.3(a)(3)).

A sentencing court must adequately explain its reasoning for a departure under § 4A1.3. E.g., United States v. Potts, 947 F.3d 357, 371 (6th Cir. 2020). However, the Sixth Circuit has "rejected 'a mechanistic approach to departures.'" United States v. Herrera-Zuniga, 571 F.3d 568, 588 (6th Cir. 2009) (quoting United States v. Thomas, 24 F.3d 829, 833 (6th Cir.1994)). The sentence imposed as a result of a departure must accord with the goals identified by Congress in 18 U.S.C. § 3553(a), but there is no strict method a court must follow to determine whether a CHC is appropriate or a departure is necessary. See id. (citing United States v. Brown, 371 F.3d 854, 860 (6th Cir. 2004).

Generally speaking, this requires that the sentencing judge consider "the seriousness of the defendant's past criminal conduct, the likeliness of recidivism, prior similar adult conduct not resulting in criminal convictions, previous lenient sentences for offenses, whether the sentence will have a deterrence on future criminal conduct, the necessity of isolating the defendant from the community and the length of time necessary to achieve rehabilitation, if rehabilitation is possible."

Id. (quoting Thomas, 24 F.3d at 833 (citing United States v. Joan, 883 F.2d 491, 496 (6th Cir.1989))).

III.

Duerson's CHC III results from five criminal history points...