US v. Nash

Decision Date20 January 1989
Docket NumberCrim. A. No. 88-50073-01.
Citation703 F. Supp. 507
PartiesUNITED STATES of America v. Lerone D. NASH.
CourtU.S. District Court — Western District of Louisiana

Joseph S. Cage, U.S. Atty., U.S. Dept. of Justice, and John S. Odom Jr., Sp. Asst. U.S. Atty., Shreveport, La., for U.S.

Richard C. Goorley, Keene & Goorley, Shreveport, La., for Lerone D. Nash.

MEMORANDUM RULING

STAGG, Chief Judge.

Lerone D. Nash (hereinafter, "Nash") was arrested on July 26, 1987, at Barksdale Air Force Base and charged with a first offense violation of La.Rev.Stat. 14:98, i.e., driving while intoxicated ("DWI"). DWI is made a federal offense by virtue of the Assimilative Crimes Act, 18 U.S.C. § 13. On August 27, 1987, Nash appeared before United States Magistrate James M. Barton and executed a written consent to proceed before a United States Magistrate in a petty offense case. Contemporaneous with the execution of that consent form, Nash also waived his right to trial by jury and his right to the attendance of appointed counsel.

The transcript of the proceedings before Magistrate Barton reveals that Nash appeared without counsel and was advised of his constitutional rights, including his right to have counsel present throughout the proceedings. Nash entered a plea of guilty. Although the transcript does reflect that petitioner made "no audible response" when asked whether he gave up the constitutional rights that had been discussed, the record is clear that he was given a full explanation of these rights and told that a guilty plea would waive them.

Nash was sentenced to pay a fine of $400 and a special assessment of $25 to the Crime Victims Fund. Additionally, he was sentenced to confinement for six months, the execution of which was suspended, and the defendant was placed on supervised probation for one year. The following conditions of probation were imposed by the court:

1. Nash was to perform community service as directed by the Probation Office for four 8-hour days;

2. He was to participate in a drug abuse treatment program for so long as the clinic or probation officer directed, with antabuse sic and urine surveillance, if indicated;

3. Nash was to complete an alcohol education and driver improvement program;

4. He was to obey all local, state and federal laws; and

5. Nash was to pay his total fine and assessment within the first 90 days of supervision.

On August 3, 1988, Nash's probation officer, James A. Gayle Jr., filed a petition for probation action against Nash, alleging violations of the conditions of his probation as follows:

1. Nash failed to attend the alcohol, education and driver improvement program;

2. Nash paid only $125 of the $425 fine;

3. Nash was dismissed from the community organization for drug abuse concerns for failure to appear at counseling sessions, failure to submit urine samples as required, and for submitting positive urine samples for alcohol and cocaine; and

4. Nash failed to make monthly supervision reports as required by the court.

A warrant was issued for Nash's arrest and Richard C. Goorley, attorney at law, was appointed to represent Nash.

A hearing was held on September 2, 1988, before United States Magistrate Roy S. Payne on the probation revocation action. Pursuant to Fed.R.Crim.P. 32.1(a)(2), the defendant waived the separate revocation hearing, and evidence was presented by both the government and Nash.

Following completion of the evidence, the court ruled that the defendant had failed to comply with the terms of his probation and ordered the suspension of the original six-month sentence imposed on August 27, 1987 set aside and committed Nash to the custody of the Attorney General for a period of 90 days. Execution of the sentence was stayed, pursuant to Rule 7(c) of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates, pending this appeal.

Nash filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on September 1, 1988. In his motion, Nash argues that the magistrate improperly accepted his plea of guilty because he was neither "Boykinized" nor was he informed of his right to counsel. The Report and Recommendation of United States Magistrate Roy S. Payne was issued on September 8, 1988, recommending that Nash's motion be denied. A notice of appeal to the United States District Judge from the Judgment of the United States Magistrate was filed on September 9, 1988. Because the issues raised by Nash on appeal and in his Section 2255 petition are identical, the court will address them at the same time herein.

ANALYSIS OF LAW AND FACTS:

The first issue before the court is whether the magistrate's failure to comply with Rule 11 of the Federal Rules of Criminal Procedure renders Nash's plea of guilty null and void. It is undisputed that the requirements of Rule 11 and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) were not followed by the magistrate. Rule 1(b) of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates provides:

Except as specifically provided by these rules, the Federal Rules of Criminal Procedure govern all proceedings except those concerning petty offenses for which no sentence of imprisonment will be imposed. Proceedings concerning petty offenses for which no sentence of imprisonment will be imposed are not governed by the Federal Rules of Criminal Procedure, except as specifically provided herein or by these rules. However, to the extent that they are not inconsistent with these rules, a magistrate may follow such provisions of the Federal Rules of Criminal Procedure as he deems appropriate.

In his brief, Nash contends that the abovecited rule is not applicable to this proceeding because he faced a mandatory jail sentence under Louisiana law. Nash contends that La.Rev.Stat. 14:98 has a mandatory confinement provision for DWI first offenders. However, the statute has no such provision. Rather, the statute states that the minimum jail sentence of 10 days can be suspended if either: (1) the offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or (2) the offender is placed on probation with a minimum condition that he perform four 8-hour days of court-approved community service activities, participate in a court-approved substance abuse program and participate in a court-approved driver improvement...

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9 cases
  • U.S. v. Reilley, 90-8084
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 28, 1991
    ...Doe, 743 F.2d 1033, 1038 (4th Cir.1984); United States v. Jackson, 605 F.2d 1319, 1320 (4th Cir.1979) (per curiam); United States v. Nash, 703 F.Supp. 507, 510 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir.1989) (table). 8 And although one district court has explicitly limited Scott to state pro......
  • Ex parte Shelton
    • United States
    • Alabama Supreme Court
    • May 19, 2000
    ...194 (1995); United States v. Smith, 56 F.3d 66 (6th Cir.1995); United States v. Castro-Vega, 945 F.2d 496 (2d Cir.1991); United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir.1989); State v. Sanchez, 94 N.M. 521, 612 P.2d 1332 (N.M.App.1980); and Cottle v. Wainwrig......
  • Griswold v. Com., 2269-92-2
    • United States
    • Virginia Court of Appeals
    • January 10, 1995
    ...(9th Cir.1979); United States v. White, 529 F.2d 1390 (8th Cir.1976); State v. DeRosa, 633 A.2d 277 (Vt.1993); contra United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd 886 F.2d 1312 (5th Cir.1989). IV. Appellant also contends that the evidence was insufficient to support the trial cou......
  • Griswold v. Com.
    • United States
    • Virginia Court of Appeals
    • September 5, 1995
    ...United States v. White, 529 F.2d 1390 (8th Cir.1976); State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993); contra United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd, 886 F.2d 1312 (5th The Commonwealth affords trial courts broad discretion in revoking suspended sentences. See Code § 19.2-......
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