United States v. Curtis Hoffman

Cir.1982), (6th States, F.2d III. United denied, 464 rt. ce 69, stated, For the reasons the orders of the States 78 L.Ed.2d 83 United authorizing district court the Federal Bu Martinson, 809 F.2d v. Investigation reau of to turn over the rec Circuit held that the Ninth “[a] ords and documents of Black River Petrole jurisdiction and court has both the um, bankruptcy Inc. to the trustee are property the contested duty to return VACATED, and this ease is REMANDED has end government’s need it ‘once the to the district court. The district court is ” Wilson, v. (citing ed.’ United States respond to instructed allow Black River to (D.C.Cir.1976)). “More F.2d 1103-04 fully to the trustee’s motion for a turnover over, adequate existence of civil reme the records documents and to con discharges the court’s duties dies neither 41(e) hearing pursuant duct to Rule jurisdiction.” its United nor disturbs parties determine of the shall have Wingfield, possession of the records documents. Martinson, see also Insofar as the contest is one between the 1368; Wilson, 1104.- 540 F.2d at F.2d at River, government and Black the district Accordingly, hold the district court equitable is to treat case as civil 41(e) duty its under Rule discharge did not proceeding competing equi and balance decide the issues. to hear and Duncan, ties. at 654. Insofar is the contest Black River and the between C. trustee, bankruptcy is the district court argues that it is entitled Black River also treat the matter as a civil case involving possession of the documents because legal dispute property. over general of a they seized as result were Maez, exploratory search violation denied, U.S. —, 111 rt. ce need Fourth Amendment. This court not 1005, (1991); 112 L.Ed.2d 1087 necessarily reach that issue because Estep, States v. amendment, 41(e) Rule the 1989 [u]nder longer property limited to held fol- is no or seizure. lowing an unlawful search _. Now, any person aggrieved by “the de- a Rule privation property” file government

41(e) require the motion to property.

to return the Virgin Islands v. Ed-

Government of (3d Cir.1990)

wards, 903 F.2d 41(e)). America, (quoting Fed.R.Crim.P. UNITED STATES Plaintiff-Appellee, docu- legality of the seizure litigation an ments could become issue government River if and Black between HOFFMAN, Defendant-Appellant. Curtis government retain the docu- seeks to No. 92-1042. court took no ments. the district validity of the search6 and evidence on the Appeals, Court of regard. If the findings made no Sixth Circuit. motion for a turnover in loses her trustee 1, 1992. Argued Oct. government de- itself, then documents it cides to retain the Dec. 1992. Decided necessary develop a on might record then, the search. Until legality court to simply nothing there is as to this issue.

review suppress. No filed a motion defendant (briefed),

John C. Bruha Mark V. Cóur- tade, Atty. (argued), Rap- Asst. U.S. Grand ids, MI, plaintiff-appellee. briefed), (argued Phelan Lawrence J. MI, Rapids, defendant-appellant. Grand KEITH, JONES, BOGGS, Before: Judges. Circuit by preponderance the court found KEITH, Judge. Circuit evidence that Hoffman made the threat. Hoffman, appeals the Curtis Appellant, Accordingly, the court overruled Hoff- to his pursuant entered sentence objection man’s to the enhancement of his drug Hoffman was distribution. guilty to for obstruction of justice. sentence superseding of a three counts named in 25,1991, by a January issued on also considered indictment court Hoffman’s ob- District of Michi- jections in the Western the of grand jury to inclusion state court charged the one of indictment from and gan. Count convictions 1984 1987. Hoffman conspiracy possess to with with are Hoffman claims these convictions invalid because distribute, conspiracy and to dis- completely by intent to he was not informed 1,000 kilograms marijuana, of rights, required by tribute over of of his court all 238, and Alabama, of 21 U.S.C. 846 Boykin in violation 89 §§ 841(a)(1). charged Count four Hoffman 23 L.Ed.2d 274 The district possession to rejected argument, however, with intent distribute with on marijuana, in approximately pounds grounds of to Hoffman failed estab- 841(a)(1) and pleas violation of U.S.C. lish that his 1984 and 1987 were not §§ 841(a)(1)(D), knowingly voluntarily and 18 U.S.C. Hoffman and made. Accord- posses- in with charged ingly, rejected count seven the court objec- was approximately sion with intent to distribute and included these tion convictions within pounds marijuana, history of in violation of computation. criminal his 841(a)(1) 841(b)(1)(C), and and U.S.C. §§ The district court sentenced Hoffman to also 2. Hoffman was also 18 U.S.C. § (120) imprisonment on count months seven named, along several other defen- four, sixty (60) to and months on count run dants, indictment, ten of the in count concurrently by and to be followed four For the rea- alleges criminal forfeiture. supervised probation. timely of This years below, we AFFIRM. sons stated followed, appeal raising challenges to the of the 1984 and 1987 convictions in use I. history computation Hoffman's criminal accepted a August Hoffman On his of sentence for and enhancement whereby pled guilty to agreement justice. of obstruction in and of the indictment counts four seven remaining for exchange dismissal II. against him. On November counts TO A. COLLATERAL CHALLENGES objections filed two Hoffman PRIOR CONVICTIONS presentence report. He chal- government’s lenged the inclusion of certain both challenges the first use Hoffman history category in his criminal convictions driving impaired while a 1984 conviction recommendation probation officer’s and the for assault and bat 1987 conviction enhanced two levels that his sentence be history computation. tery in his criminal justice. for obstruction Application Note The 1987 version pertinent part: 4A1.2 reads U.S.S.G. § hearing objections on Hoffman’s A respect resulting from convictions that 1991. With Sentences held on December or vacated because enhancement for ob- have been reversed objection Sheldon, law, or because of subse justice, Garry of errors struction exonerating quently-discovered evidence subpoenaed government wit- brother defendant, counted. ness, are not to be that Hoffman threatened testified in a Kentucky Any resulting valid other sentence “people” would criminal counted in the “take care” of conviction is his trial and would attend history which the against him. score. testifying Convictions the witnesses have constitu made such defendant shows to testified that he no Hoffman may tionally counted credibility invalid not be threat. based witness, history score. government’s the criminal of Hoffman (Nov. date of amended Note 4A1.2, effective Application Note U.S.S.G. § added). In of which he was sentenced oc- ed.) offense prior to amendment Note 6. curred Bradley, 922 F.2d concluded, Accordingly, the that lan- interpreted this Circuit agree, applying collat- the amended that defendant guage to mean convic- to Hoffman would erally attack the inclusion computation. problem.1 an ex There- his criminal cause tions into however, fore, court was correct argues that we think The government, allowing using permitted Hoffman its discretion as under erred district court con- prior collaterally sentencing attack state to consider Hoff- government The challenge prior at convictions. victions man’s to his Ap- 1990 amended version relies previously This Circuit has not de 4A1.2 which plication 6 to Note U.S.S.G. § cided the effect the amended versions of reads: Background Application Note 6 resulting that from convictions Sentences they apply Note to U.S.S.G. 4A1.2 as § because reversed vacated have been prior attacks collateral convictions. law, or of subse- because of errors Second, adopt we the view exonerating evidence quently-discovered Eleventh, Fifth, Circuits that it Ninth defendant, are counted. not a court’s discretion to is within Also, resulting from convic- sentences whether collat determine a defendant to have a defendant shows tions that erally prior attack the convictions at use previously ruled sentencing has where the defendant not not to be counted. invalid are challenged the convictions.2 Ex previously (Nov. 4A1.2, Application Note 6 U.S.S.G. plaining the 1990 amendment to Note in § ed.) added). Despite the (emphasis 1990 F.2d Cornog, States 945 1504 Application Note 1990 amended version (11th the Eleventh Circuit wrote: exercised appropriately the district application A 1990 amendment to note 6 pursuant Background its discretion court may ... clarifies that a district 4A1.2 which was also amended Note to § previously count never convictions held and reads: 1990 defendant, in sentencing invalid but excluded, sentences, not Prior otherwise that it has to conduct a discretion collat- history counted the criminal are to be inquiry to eral determine whether chal- score, including misdemean- uncounseled convictions, lenged which the defendant imprisonment where or sentences contested, are previously has not invalid imposed. not and, hence, ignored. must be leaves for court deter- The Commission F.2d Cornog, 945 at 1504. also United See issue a defen- mination the of whether Guthrie, 564, 570, 931 F.2d n. 4 may collaterally attack at sentenc- dant Jakobetz, United States v. ing conviction. (2nd 805 cert. de Notes, 4A1.2, nied, —, Back- U.S.S.G. § (Nov. ed.) (1992); ground Note L.Ed.2d and United States v. sentencing Canales, F.2d added). Although Hoffman’s 1314-15 Cir. 17, 1991, 1992). Background on December after As the amended occurred conflicting disagree recognize portion that the Fifth that 1. We 2. We there is authori Canales, interpretation ty among regarding Circuit's decision Circuits (5th Cir.1992), holding that Background Application Note 6 and Application Note 6 to U.S.S.G. 4A1.2 does not § e.g., to U.S.S.G. 4A1.2. See United States v. post I of the the ex clause of Article violate Jones, Cir.1992) (Jones II); facto 977 F.2d 105 Furthermore, even Constitution. Hewitt, United States v. F.2d case the court were not if the instant problem, an ex concerned with to consider Hoff- court still has discretion challenges to his man’s convictions. require 4A1.2, matically Circuit ex- that the the Eleventh conviction be Note to § requires vacated instead but plained: prove, by state evidence extrinsic to the that, under language demonstrates This transcript, plea that the was nonetheless only must guidelines, courts exclude voluntary intelligent. held previously had been convictions criminal score. invalid Pitts, 200. however, Commission, left courts thought signifi The district court it was collaterally va- to examine the discretion that by cant the time Hoffman entered the prior convictions that the defen- lidity of already previous had con challenged previously. had dant victions, pleas. most which resulted from at 1504. Cornog, fact, acknowledged the defense fully Hoffman had been advised of his Having held that the district court rights pleas that he entered in 1978 and its in consid properly exercised discretion It important is also to note that ering challenges convictions, question Hoffman does not claim now turn to the that he was un rights, of simply ruled Hoff aware his that he properly the court that but was whether showing completely rights man his burden of not informed of his failed meet when prior pleas. that his convictions are constitutional he entered the 1984 and 1987 In ly Boykin. light We first note of and invalid under the above facts this Circuit’s showing Pitts, the burden of that Hoffman had decision in not that we do believe for ruling that his convictions were invalid district court erred in that Hoffman calculating purposes of his criminal showing his of failed meet burden that Bradley, v. category. See United States constitutionally his convictions were — Raley, invalid. also Parke v. See U.S. —, (1992) L.Ed.2d 391 not Boykin, Supreme In Court (upholding court’s inference that defendant constitutional ed that federal “[s]everal rights his was aware of constitutional as a in a takes rights are waiver that involved prior experience result his crim in a place plea guilty is entered when Therefore, justice system). inal we affirm 395 U.S. at Boykin, state criminal trial.” enhancing the district court’s decision rights include 89 S.Ct. at 1712. These sentence based on his con self-incrimination, the privilege against victions. right by jury, right to trial and Hoffman al one’s accusers. Id. confront FOR B. ENHANCEMENT OBSTRUC- leges his 1984 and 1987 state convic TION OF JUSTICE fully he was not tions are invalid because of the Section 3C1.1 sup rights. his His claim is advised of for two-level enhancement ob permits a ported by transcripts guilty pleas of his specifi justice. That section convictions, that, in struction of show from these cally provides that: 1984 and was advised both self-incrimination or privilege against his willfully or If the obstructed defendant confrontation, his only but right or im- impeded, attempted or to obstruct right jury. by to trial during justice pede, the administration or investigation, prosecution, sen- States, v. Pitts United offense, tencing increase instant Circuit held that where by two levels. offense fully that he was not a defendant shows 3(a) rights required by Boy- 3C1.1 Note U.S.S.G. advised § kin, intimidating, inquiry “threatening, is whether or the ultimate states that voluntary influencing and intelli- a co-de unlawfully defendant's otherwise fendant, witness, directly made. at 200. Pitts or gently juror, Id. or indi so,” wrote: constitutes rectly, attempting or to do purposes justice insufficiency obstruction shows an defendant [I]f supporting enhancement Facts transcript, Boykin does not auto- 3C1.1. § themselves, governing the and the factors proven by a must be provision under this discretion, court's exercise of the district of the evidence. preponderance has a not matters in which defendant 1032 are Rodriguez, interest, and to which ex review the vested We contrary, applies. To the jurisprudence for clear er findings on this issue court’s Williams, repeatedly held that the sen- F.2d courts have ror. United States denied, apply are those in tencing guidelines that cert. Thus, —, effect at the time 116 L.Ed.2d a crime with a a defendant who commits earlier, Garry testified Sheldon As stated of, range example, statutory sentencing people that his Hoffman threatened twenty years has no five to trial and Kentucky attend his would guidelines that would complaint if the valid testifying of the witnesses take care would of, sentencing range for ex- have led to a government also called against him. The are, prior to his ample 100-120 months Sehaller, who testified agent FBI Ronald changed upward either sentencing, of Hoffman’s he received information 3553(a)(4)(5); 18 U.S.C. downward. a confidential to Sheldon from threat Marin, the threat with later verified source and v. Rus- testimony of Shel- Based Sheldon. (8th Cir.1990). sell, 913 F.2d Sehaller, Hoffman, don, the dis- agent credibility made a determination trict court (which a Background The crucial is preponderance of the evi- found Ap- authority than even the lesser level of did, fact, communi- Hoffman dence that themselves), plication Notes does not ex- attempt in an a threat to Sheldon cate plicitly give district courts discretion justice. Accordingly, the district obstruct consider, consider, fail to collateral at- error. not commit clear court did Rather, already adopted an having tacks. that uses the Application Note 6 amended III. to have term “a defendant shows reasons, we AFFIRM foregoing For invalid,” ruled previously imposed by the Honorable the sentence added), the Commission then Enslen, District A. Richard adding Background Note waffles bit District of Michi- Judge for the Western for court determina- stating that it “leaves gan. case, tion,” individual but “the is- not the a defendant collateral- sue of whether BOGGS, concurring in Judge, Circuit sentencing conviction.” ly attack at dissenting part. part that our court precisely This is the issue opinion the court’s agree determining, following I an en banc will be justice McGlocklin, for obstruction of rehearing enhancement prepared (6th Cir.1992) I proper. am held on Decem- F.2d 551 time, rule that the district court had prepared this time to I am not ber 9. At this issue, Hoffman’s collat- pending to consider position the discretion take a on that prior convictions. disposition eral attack on his of that case. argument and Therefore, opin- join I cannot the court’s challenges, the regard to collateral With court did have holding ion that the district 190) empha- opinion (p. places some court’s challenge. discretion to consider of an possibility ex sis Application Note 6 was problem because after defendant committed amended I

crime, dis- but before has a vested

agree. A criminal defendant only statutory limits on his

interest in the is com- at the time the crime

punishment punish-

mitted. Within bounds authorized, statutorily

ment

Case Details

Case Name: United States v. Curtis Hoffman

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 22, 1992

Citation: 982 F.2d 187

Docket Number: 92-1042

Court Abbreviation: 6th Cir.