USA. v. Staples & Brown
| Decision Date | 02 February 2000 |
| Docket Number | Nos. 99-1630,s. 99-1630 |
| Citation | 202 F.3d 992 |
| Parties | (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Mardisco Staples and Delwin Brown, Defendants-Appellants. & 99-1876 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Central District of Illinois. No. 98 CR 20060--Michael P. McCuskey, Judge. [Copyrighted Material Omitted] Before Harlington Wood, Jr., Kanne and Diane P. Wood, Circuit Judges.
Mardisco Staples and Delwin Brown challenge the calculation of the sentences for their convictions for possession with intent to distribute crack cocaine. Staples and Brown pleaded guilty to the one-count indictment and, based on their individual criminal histories, were sentenced to 150 months and 292 months in prison, respectively. They contend that the district court erred in applying the United States Sentencing Guidelines, resulting in longer terms in prison than their criminal histories merited. The district court's interpretation of the Guidelines was reasonable and correct, and we affirm Staples' and Brown's sentences.
On September 1, 1998, police in Champaign, Illinois, executed a search warrant at the home of Mardisco Staples and found 357.1 grams of crack cocaine, two guns and $2,784 in cash. Delwin Brown, Staples and Staples' brother, Burnell Staples ("Burnell"), were in the house at the time of the raid. All three were arrested, and Brown and Burnell made statements to the police implicating themselves and Staples in a drug trafficking operation between Chicago and Champaign. Brown had been sending couriers to Chicago every two or three days to pick up a half kilogram or more of crack and bring it to Champaign. Burnell told police that Brown had arrived just that day with a shipment of crack, which Brown and Staples broke down into smaller quantities for distribution. Burnell admitted that Brown had given him 7.4 grams that day. Brown confirmed the trips to Chicago had been taking place and, when asked if he had just received crack from his source, responded, "Yeah, you got it all didn't you?"
The grand jury indicted Brown and Staples, and the two entered guilty pleas. Brown was held accountable for 1.5 kilograms of crack, resulting in a base offense level of thirty-eight. He received a two-level increase for possession of the handguns and a three-level decrease for accepting responsibility for his crime. Based on his Presentence Investigation Report (PSR), his criminal history scored in category IV, under which an offense level of thirty-seven allows a range of 292-356 months imprisonment. The district court based the criminal history determination in part on Brown's previous convictions for reckless conduct and discharging an air rifle. On April 2, 1999, the court sentenced Brown to the bottom of that range.
Staples was held accountable for 357.1 grams for a base offense level of thirty-four. He received the same adjustments, but the district court determined that his proposed criminal history category of VI over-represented the seriousness of his past crimes. With the government's approval, the court reduced his criminal history to category V and his base offense level to twenty-nine, making the appropriate range 140-175 months in prison. The district court calculated Staples' criminal history based on convictions for the same air rifle incident and also for driving with a suspended license. The court sentenced Staples to 150 months.
Staples and Brown challenge the computation of their criminal histories. Both men contend the district court committed error when it assessed one criminal history point for the municipal conviction related to discharging a weapon. Individually, Staples challenges the assessment of two points for his conviction for driving with a suspended license. Brown challenges the one- point assessment for reckless conduct.
The government contends that Brown waived his right to appeal the calculation of his criminal history at his sentencing hearing. Waiver occurs when a defendant intentionally relinquishes a known right. See United States v. Olano, 507 U.S. 725, 730-34 (1993); Johnson v. Zerbst, 304 U.S. 458, 464 (1938); United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996). Waiver extinguishes the error and precludes appellate review. See Olano, 507 U.S. at 733. Brown believes that he did not waive his right to challenge the PSR, but merely forfeited it. Forfeiture is a doctrine related to waiver, but instead of precluding all appellate review, it permits plain error review. See id. at 730-34. One forfeits his rights by failing to assert them in a timely manner. See id. at 733. Where waiver is accomplished by intent, forfeiture comes about through neglect.
In United States v. Redding, 104 F.3d 96, 99 (7th Cir. 1996), a defendant waived his right to appeal his criminal history calculation when he filed no written objections and did not verbally object at his sentencing hearing. Counsel for the defendant in Redding stated to the sentencing judge, "[a]t present, we accept for the purposes of this sentencing hearing the calculations regarding criminal history, although I believe that does not bind [the defendant] from possible collateral attack regarding these matters." Redding, 104 F.3d at 98 n.1. We held that the defendant waived his right to appeal despite the fact that the defendant had objected to the criminal history at a pre-sentencing hearing. Id. at 99.
Here, the government makes an even stronger case for waiver. Despite being provided advance notice of the PSR's contents and an opportunity to object before and during the sentencing hearing, Brown and his counsel did not. According to Brown's counsel, the defendant Accordingly, we find that the defendant knew he had a right to object to the calculation of his criminal history, knew the contents of the report and affirmatively decided not to object. This decision shows intent to waive the right, not ignorance or neglect of the right. The defendant therefore has waived his right to appeal the calculation of his criminal history.
Staples argues that his conviction for discharging a weapon should not have been counted in his criminal history because the Guidelines specifically exclude convictions for local ordinance violations, except in limited circumstances. See U.S. Sentencing Guidelines Manual sec. 4A1.2(c)(1). The Guidelines, however permit counting "local ordinance violations that are also criminal offenses under state law." Id. The question today is whether Staples' conviction for discharging a weapon was a criminal offense under Illinois law. We review de novo a sentencing court's conclusions of law. See United States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998).
Police arrested Staples and Brown on August 14, 1995, and charged them with "shooting a Crossman 760 Pumpmaster pump air rifle at street lights and at a train." Staples pleaded guilty on February 16, 1996, to discharging a weapon and was fined $280. The Illinois Air Rifle Act, 720 Ill. Comp. Stat. 535/3 (West 1993), makes it "unlawful for any person to discharge any air rifle from or across any street, sidewalk, road, highway or public land or any public place except on a safely constructed target range." Shooting an air rifle at street lights and a train violates this section and therefore must be counted under sec. 4A1.2(c).
Staples nonetheless argues that the government did not carry its burden of proof on this issue when it failed to cite the air rifle statute at sentencing. However, in the matter of exclusions from Guidelines calculations under sec. 4A1.2(c)(1), the defendant and not the government carries the burden of proof. See United States v. Booker, 71 F.3d 685, 688 (7th Cir. 1995). The government's failure to cite the state law similar to the local ordinance was not error since the government did not carry the burden of proof on this issue.
Next, Staples argues that the air rifle conviction should be excluded because it was similar to "disorderly conduct or disturbing the peace," which would not be counted in this situation. Under Illinois law, a person commits disorderly conduct when he knowingly "does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 Ill. Comp. Stat. 5/26-1(a)(1). While Staples and Brown obviously violated this section when they shot the air rifle, there are few offenses--felonies or misdemeanors--that do not satisfy this definition. The question is not whether they disturbed the peace, but whether their criminal conduct most appropriately should be considered as one of those offenses "similar to [disturbing the peace], by whatever name they are known." U.S.S.G. sec. 4A1.2(c)(1). We look to the actual offense conduct and the sentence deemed appropriate by the sentencing judge to determine if the acts are similar. See United States v. Boyd, 146 F.3d 499, 501-02 (7th Cir. 1998).
The fact that the Illinois General Assembly saw fit to criminalize air rifle offenses separately rather than leave it to the disorderly conduct statute provides at least some evidence that lawmakers considered the offense dissimilar to disturbing the peace. Disturbing the peace in Illinois is a Class C misdemeanor, punishable by up to a year in jail. See 720 Ill. Comp. Stat. 5/26-1(b)(1). Discharging an air rifle is a petty offense, punishable only by a fine. See 720 Ill. Comp. Stat. 535/7. This distinction provides another point of dissimilarity, but weighs in the defendant's favor as probative evidence that the air rifle offense is less serious in the eyes of state...
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