*1 263 § provide right the defendant with the to a 851 statutory enhance- collaterally i.e., prior attack his convictions one that statutory exceeds the ment — 21 during sentencing proceedings. See maximum embodied the Guideline’s sen- 841; 4A1; Thomas, § § U.S.C. U.S.S.G. tencing ranges defendant is not enti- —the 4A1); (discussing § at 824 & n. 1 rely tled to on procedural protections Bacon, see States v. 94 F.3d also United §in contained 851 to challenge sentencing (4th Cir.1996) (“At n. 5 eight least determinations such as his criminal history appeals other courts of have (U.S.S.G. extended Cus- 4A1.1); category, § or “score” “ cases”) cases). tis to (collecting Guidelines ‘likelihood that he will commit fur- ” § Commentary to 4A1 point makes this (U.S.S.G. 4A1.3); § ther crimes’ and his clear: (U.S.S.G. “career offender status” 4B1.1). resulting Sentences from convictions § Day, United States v. (A) have (3d Cir.1992) been reversed or vacated 39, 47-48 (holding so and
because of errors of-law or because of collecting appeals numerous court of cases subsequently discovered evidence exon- holding similarly). reasons, For these Es- (B) defendant, erating the or have been § rely cóbales cannot on 851 to invoke the constitutionally ruled invalid in a prior sentencing court’s collateral power case are not to be counted. With re- underlying to attack an conviction that was spect sentencing proceed- to the current upon by relied the District Court in deter- ing, commentary do mining Escobales’s criminal history points upon any right confer defendant history category. and criminal collaterally prior to attack conviction Therefore, judgment of the District beyond any rights or sentence such oth- Court will be affirmed. recognized erwise in law.... (1998) § 4A1.2 (emphasis U.S.S.G. cmt. 6
added). Therefore, pursuant to Custis and
Thomas, Escóbales did not have the statu-
tory right to attack his state conviction
when the District Court was America, Appellee UNITED STATES of
him. Escóbales nonetheless § explicitly provides U.S.C. MACKINS, Appellant David fact, 851(c) so, right. such a does No. 99-4021. margin, is detailed and as was noted Appeals, United States Court of Custis, 491-92, Third Circuit.
1732, and recent to the Guide lines, (1998) see U.S.S.G. 4A1.2 cmt. 6 Submitted Under Third Circuit LAR (“21 expressly provides U.S.C. 34.1(a) April may collaterally attack certain July Filed convictions.”).3 However, right 851(c) provided §in implicated is not elsewhere,
in this case. As we have held
when a defendant not being sentenced 851(c) (2) provides, pertinent part: person claiming Section A that a conviction alleged in the information was obtained in (1) person any allegation If the denies violation of the Constitution of the United conviction, the information of claim, States set forth shall any alleged claims that conviction is inval- therefor, particularity factual basis id, response he shall file a written to the response per- to the information. The information.... The court hold a shall proof by son shall have the burden of hearing any to determine issues raised preponderance of the evidence on issue response except per- which would response.... of fact raised punishment.... 851(c). son from increased 21 U.S.C. *2 Pfisterer,
Eric Office of United States Street, Attorney, 228 Walnut Federal Building P.O. Box PA Harrisburg, Appellee. Counsel for Travis, Rieders, Travis, Ronald C. Mus- sina, Harris, Humphrey & 161 West Third Street, Box Williamsport, P.O. PA Appellant. Counsel for BECKER, Before: Judge, Chief BARRY, BRIGHT,* Circuit Judges THE OPINION OF COURT BARRY, Judge. Circuit David Mackins appeals his sentence of 360 months for conspiracy to distribute possession with intent to distribute crack cocaine. He raises several issues sentence, regarding only one which issue, long. need deter us That simply * Myron Bright, sitting by designation. Honorable H. Circuit, Judge Eighth States Circuit for the stated, sentence im- to distribute the is this: does same violation of 21 841(a)(2) (Counts IV). plea quali- II, the result of an posed as U.S.C. III and fy as a sentence” under U.S.S.G. Upshaw a plea agreement entered into computing the government, while Mackins and un- history category defendant’s criminal Staples proceeded trial. Before com- *3 § Upon reviewing princi- der 4A1.1? mencing trial, however, day the second in ples enunciated North Carolina v. Al- Staples Mackins and entered into 25, 160, 27 ford, 400 91 S.Ct. L.Ed.2d U.S. agreements, and pled Mackins guilty to (1970), persuaded, we are as was the I Count of the superseding indictment on Court, that the answer is “yes.”1 District 20,1999. January We are also asked to review whether the Mackins’s Investigation Presentence Re- erred in a two- imposing (“PSR”) port was then prepared. Begin- adjustment level upward pursuant ning with a thirty-six, base offense level of § a 3B1.4 for Mackins’s use of minor in 2D1.1(c)(2), § adjustment see a two-level offense, committing his and whether the specific was added as a offense character- refusing grant Court erred in Mackins a istic for possession danger- Mackins’s greater departure downward 2Dl.l(b)(l). § ous weapon, see In addi- he, fact, § 5K1.1 than the one level in tion, a two-level was added for find no imposi- received. We error Mackins’s role the offense as an organiz- tion of the two-level and lack er or leader of criminal activity. See jurisdiction to review the District Court’s 3Bl.l(c). § Finally, a two-level reduction discretionary depart only decision to one in light accep- awarded of Mackins’s Khalil, level. See United States v. 3El.l(a). of responsibility. § tance See (3d Cir.1997). 897, level, therefore, Mackins’s total offense was thirty-eight.
I. 1997, Beginning spring .David respect With to Mackins’s criminal his- drug operation Mackins ran a distribution tory category, two sentences were Williamsport, Pennsylvania. Briefly a considered for total of five points. See summarized, brought multiple Mackins § 4A1.1. The first a way quantities ounce of crack cocaine from robbery conviction for for which Mackins City New York Williamsport, into and years received a sentence of 2 to 6 impris- there enlisted the of local help residents 4Al.l(a) (three § onment. points). See drugs sell the purchasers. street level way attempt- second was of a 1994 Upshaw LaPeace Rashie and Jerome Sta- grand larceny ed conviction on his ples drug assisted Mackins with his activi- guilty for which one-year he received a City. ties in New York It is estimated that sentence, essentially being sentenced to during the course operation between 4Al.l(b) (two § time served. See points). grams 500 and 1500 of crack cocaine were addition, points pursu- two were added sold. 4Al.l(d) § ant to because Mackins was on September On grand federal parole the time he committed the in- jury offense, returned a three-count superseding point stant and one was added Mackins, charging Upshaw indictment and because the instant offense was committed Staples with conspiracy to distribute and less than two after his release from possession with intent to imprisonment distribute cocaine aon sentence counted under 4Al.l(b). 4Al.l(e). and cocaine base in violation of U.S.C. eight See to- (Count I) § 846 possession with intent history points tal criminal established As, course, 1. fully, maintaining will discuss more his or her innocence. North Car- plea generally refers to a v. olina (1970). entered into a defendant while L.Ed.2d 162 IV, which, Mac- the District Court sentenced category of history appeal This followed. total offense level kins to 360 months.
conjunction with the impris- in a thirty-eight, resulted range of 324 to 405 months. II.
onment objected to the use of the sen- appellate pur exercise We larceny 3742(a) (e) to com- attempted grand tence and 28 to 18 suant U.S.C. pute category his criminal The District Court’s inter U.S.C. the result of that sentence was sentencing guideline pres pretation of well, objected, as when the plea. He question over which we exer legal ents possibility two- Court raised plenary cise review. See States (3d Cir.1996). adjustment was warranted upward Ceccarani, level §to because Mackins Where, however, 3B1.4 the District Court’s deci *4 minor, namely co-defendant Sta- determinations, used factual sion is based “on Although the offense. ples, to commit clear error.” United States likely (3d the court Mackins “coneede[d that] Isaza-Zapata, sentencing issues power Cir.1998). has the to raise nonetheless, he, argued that sponte,” sua A. Alfordpleas here because and U.S.S.G.
the Court should not do so 4-Al.l object had failed to when government the interesting appeal, on The most issue in the appear the did not PSR. and one to which there is a dearth of as alternative, argued Mackins the court, Mac- caselaw this or is because, apply should not contention that the District Court kins’s “[a]lthough Staples was not over 18 calculating his criminal erred course of the con- age throughout of because it counted the sentence category also “not a child of tender spiracy,” he was earlier, plea.2 pur- on his As noted “voluntarily” participated in years” and he 4Al.l(b), two criminal suant U.S.S.G. drug activities. history points are assessed “for each imprisonment sixty of at least persuaded. The District was not sentence First, days,” exceeding year. that an but not one Sec- the Court determined and, adjudication guilt there- tion defines sentence” plea is an fore, previously imposed upon properly “any as sentence Mackins’s Alford adjudication guilt, by guilty whether establishing included for his Second, trial, contendere, plea, or of nolo history category. of the instant only is no conduct not offense.” “[t]here Court found not adjust- Id. No other terms are defined in the upward that the two-level question but or which fol- [pursuant applies,” 3B1.4] ment responsibility has the lows. that the Court
duty to raise such issues on its own. that, definition, “by only if factual departure acknowledged downward the defendant has
Given
one-level
plea,
found
guilt by entry
guilty
§ 5K1.1 and the two-level ad-
pursuant to
3B1.4,
justment
factually guilty
to be
a result of a
Mackins’s
acknowledges
government
has suffi-
thirty-nine.
total offense level became
IV,
evidence,
credible,
if
history category
a criminal
cient
which
found
With
guilty
there
range
support
finding
would
applicable guideline imprisonment
calcu-
‘adjudication
guilt’
i[n]
usable
was 360 months to life. On November
pears
pleading
disputes
that his sole motivation for
2. No one
that Mackins’s
be
attempted grand larceny
was because the
allowed him to
should be charac-
court,
opposed
plea.
released on time served as
to remain-
terized as an
The state
awaiting
ing
a trial date to
accepting
plea,
did not elicit an
incarcerated while
when
ap-
be set.
admission of
from Mackins and
lating
history.”
He contends that
and rational choice.” Id. at
91 S.Ct.
lacks the factual
basis
160. The Court then
impact,
discussed the
which to conclude that
the defendant
any,
if
of Alford’s insistence at the time of
Instead,
factually guilty of the offense.
he pleading guilty that he did not commit the
submits,
in an
the defendant
murder. See id. at
The Supreme guilty coupled disa- with his assertion of greed, Nonetheless, and made clear that a defendant’s relying innocence. his inter- potential i.e., desire avoid a death pleading guilty, est avoiding a necessarily “does not sentence, demonstrate that the harsher and the evidence on the guilty was not product of a free guilt, record of his actual the Court was could, We, therefore, reject that he under such cir- Mackins’s conten- persuaded cumstances, plead guilty. Simply put, the Sentencing tion that the drafters of the persuaded that once a factual Guidelines, including not the Alford established, fact basis for is disposition the definition of sen- may proclaim continue to defendant 4A1.2(a)(l), tence” in intended that it not negate legal not conclu- innocence does be counted under 4A1.1. Its omission See, guilty. e.g., sion that he is White likely most reflects an (8th Solem, Hawk v. 693 F.2d that it understanding unnecessary Cir.1982) (“As long as there in fact a is it a separate disposition. list As we strong supporting guilty factual basis have, hopefully, satisfactorily explained, pro- even if plea, is valid the defendant simply plea, Alford innocence.”); tests his Government Vir- guilt, typically evidence in the record of gin Berry, Islands v. 220 n. protesta- accompanied defendant’s (3d Cir.1980) that, (recognizing tion of innocence and his or her unequivo- accepted “a be cal desire to plea. enter the See 400 U.S. notwithstanding protesta- the defendant’s at 160. That the innocence”). tion of innocence, however, asserts his or her does As and the cases which change the fact that he or ulti- she clear, however, in its wake made Thus, followed mately a guilty plea. enters as the always must exist some factual “[tjhere there basis' states, government succinctly for a conclusion of before a court can thing disposition], [as no such indeed, accept plea; a factual separate least not and distinct from a “an basis such conclusion is essential guilty.”3 part” of an plea. Willett Geor Maekins, nonetheless, argues that his (5th Cir.1979) (“In gia, regarded should not be as an judicial face a claim of innocence *6 “adjudication guilt” of because the under- finding of some factual basis for defen lying at the pled guilty record time he to guilt dant’s an essential of part attempted grand larceny lacked a factual constitutionally-required finding of a vol basis from which it could be concluded that untary intelligent plead and decision to charged he was of the offense. He Casscles, guilty.”); United States v. 494 claims that is not one iota “[t]here of evi- (2d 397, Cir.1974) F.2d 399-400 (explaining dence that the government ‘strong had a that the District Court took “too narrow a case’, case, ‘overwhelming’ an or that the by simply focusing view of on the Alford” against ‘substantially negat- [him] fact that a voluntary the defendant “made ” ed his claim of innocence.’ intelligent plead guilty and choice” to with making out sure “that there a factual was assuming Even that Maekins for the plea”). Accordingly,
basis
we con
time,
is,
doubt, made a “claim of innocence” at that
clude that an
plea without
Alford
and the record is far from clear on that
adjudication
an
of
and is no different
any
point,
than
amounts
an attack
purposes
argument
of
§ 4A1.1.
on
factual
underlying
basis for his
1,
Parenthetically,
3.
we observe that a Note to
on November
1987. Not to have included
"
§
'[p]rior
adjudi
plea
§
8A1.2 states
an
inclu
its
Alford
8A1.2,
later,
by
plea
§
cation1 means conviction
of
sion in
four
cannot be
guilty (including
plea),
plea
part
of
read
evidence an intent on the
of
comment,
8A1.2,
(n.
§
nolo contendere."
drafters of the Guidelines to exclude Alford
Guidelines,
4A1.2(a)(l).
3(g)).
Eight
Chapter
pleas
contrary,
§
of the
deal
To the
ing
sentencing
organizations,
§
with the
of
how
the Note to 8A1.2 could be read as evidenc
ever,
by
ing
understanding by
was added
amendment on November
the drafters of
contrast,
that,
concluded,
language
§
In
8A1.2
as we have
an Alford
4A1.2(a)(1)
nothing
guilty.
at issue in this
enacted
case was
more than
not
upon
he is no dif
do
confer
regard,
In that
plea. 4
who, having
any
attack
right
collaterally
than
defendant
defendant
ferent
time,
jury
prior
at some
prior
beyond
convicted
conviction or sentence
any
before a
Court
the time
District
rights
recognized in
such
otherwise
law.”
comment,
conviction that
sentencing
(n.6).
on his new
4A1.2,
U.S.S.G.
Accord
not be included
prior conviction should
ingly, we accord Mackins’s
plea the
the verdict
4A1.1 because
was
under
any other
finality
“adjudi
same
we accord
legally
on
insufficient evidence.
It
based
of guilt,
guilty plea,
cation
whether
that,
very
principle
is a well-settled
trial, or plea of nolo contendere.” Id.
exceptions, a
conviction can
prior
limited
sum,
because
is an
in the
collaterally
not be
attacked
District
adjudication
§ 4A1.2(a)(1),
on a
sentencing
at the time of
new
pursuant
to an
imposed
Al-
States,
v.
See Moore
United
conviction.
is a
for sentence”
ford
(8th Cir.)
(“Generally,
F.3d
Court,
therefore,
4A1.1. The
collaterally attack
may
pri-
defendants
not
including
not
did
err
sentence on
enhancements.”),
sentencing
or convictions used for
in the
Mackins’s
calculation of
—
denied,
U.S. —,
t.
cer
category.
his criminal history
(1999);
tencing a as a defendant classified career raising applicability the 3B1.4 sua 4B1.1, under section cannot en offender sure, sponte, it although, to be could not challenge a to the tertain constitutional imposed have the unless the underlying except in a convictions case given had been notified and been parties which the defendant’s to counsel had right opportunity prior to brief the issue denied.”); Garcia, v. United States (10th Cir.1994) (“[W]ith sentencing, they which were. Burns v. 42 F.3d Cf. States, 129, 138, 111 501 U.S. S.Ct. exception of a attack collateral based (1991) (“We counsel, hold L.Ed.2d a complete on the denial of district depart before a court can district sentencing a under upward not ground on a identified provisions offender of the career Guide upward departure for either ground lines cannot consider a collateral attack on conviction.”). Moreover, in a presentence report prehearing a Note to sub prior Government, by [Federal 4A1.2 makes clear that “this mission Rule Although purposes transcripts for that the Mackins's Alford it is not relevant discussion, any protestations lack of his it is relevant to our inno- our dissenting colleague's analysis, point App. cence. See out at 34a-38a. history category. Section requires dant’s Procedure] of Criminal provides definitions and instructions give parties reason- 4A1.2 district court defining § 4A1.1. implementing such a When contemplating it is able notice that 4A1.2(a)(1) sentence,” § of the “prior contention that ruling.”)- As for Mackins’s ‘prior term sen- guidelines states: “The not clear as to whether Sta- the record is previously im- means joined minor when the con- tence’ ples was a he upon adjudication guilt, whether only posed contention is not raised spiracy, that trial, or of nolo conten- by guilty plea, but also appeal, the first time dere, of the instant the Dis- for conduct not his concession before contradicts 4A1.2(a)(l) not offense.” Section does “Staples was not over 18 trict Court does, however, It pleas. of the mention age throughout the course Thus, We, therefore, “adjudication guilt.” require review conspiracy.” plain considering proper application error. when solely for See Knobloch, language v. United States (3d Cir.1997). I am to conclude that such pleas, of the forced Upon record, is not a sentence for we find that the District Court did error, history calculations—at least not plain much less error. not commit an actu- represented
without indicia that it “adjudication guilt.” al III. matter, of the general As a the structure reasons, we will af- foregoing
For
sentencing guidelines punishes an individu-
firm
of the District Court.
judgment
all prior
al for both the instant offense and
BRIGHT,
Judge, dissenting.
Circuit
totaling points on
offenses.
It does so
majority
concludes that an
Although
by the
comprised
a matrix
on one axis
plea falls within the definition of
offense,
characteristics of the instant
U.S.S.G.
sentence”
by points
accrued
on the
axis
4A1.2(a)(l),
agree.
I cannot
Such a
through prior
Normally,
offenses.
the law
reading need not and should not be read
prove con-
requires
government
that the
guidelines, for to do so
into the
of the instant offense
at least a
duct
may well lead to an unfair result.
However,
preponderance of the evidence.
An
results when defendant
sentencing, prior convictions need
when
imposi-
and consents to the
pleads
they
automatically
are
en-
proven:
not be
proclaiming
tion of a sentence while still
tered on the criminal
axis.
charged
offense. See
proof
his innocence
of the defen-
prior conviction itself
400 U.S.
North Carolina
guilt.
dant’s
a situation such as this
(1970);
one,
ford evidence of exists. On the rec- dent the guilt” independent dence of actual court, there is no evidence ord before this Alford, 400 defendant’s statements. did commit the crime to Mackins at protesta- pleaded guilty which he is clear that Mac- sentencing guide- 4A1.1 of the tions of innocence. It Section avoid- primarily calculation of a defen- kins was concerned governs lines the (including an plea), plea in Rikers Island ing imprisonment prison nolo Alford agreed disposi- at the he to time the Sentencing contendere.” Because Alford larceny. grand tion on He had charges included Commission Alford at year Rikers Island spent more than one pleas “guilty plea” within the definition stages pre-trial various awaiting 8A1.2, yet simultaneously in excluded trial, in persisted seeking case. Had he 4A1.2, pleas such we must assume he have been returned to Rikers would If that this exclusion was intentional. the period indefinite of time Island for an Commission intended to include Alford addition, In proceeded. while case the in both have pleas sections would done him with charged attempted state had so. murder, in the larceny fourth de- grand gree, degree, in the first criminal robbery addition, In fundamental fairness re- weapon, attempted possession murder quires allow district courts robbery in the counts of degree, second six particular discretion examine the cir- grand degree, attempted in the larce- first cumstances of criminal cases which his- four ny degree, and counts of the fourth tory pleas. calculations include Alford kidnapping. After Maekins’s co-defendant The are sentencing guidelines rigid, and separate at a the state acquitted they very allow little discretion to district if offered this case dispose he would judges. presents This ease this (under innocence) plea protestations grant court with the opportunity district for which Class A misdemeanor Mackins judges unique discretion in an area where beyond year would no time he serve circumstances are relevant to the funda- already served at Rikers Island and mental fairness of a defendant’s ultimate subjected for which he would not be to a pleas sentence. Because are sub- Alford parole Mackins had violation. a tremen- innocence, mitted under protestation of dous incentive to take rather than judge vigilant district particularly must be return and face to Rikers Island the risk ensuring about that sufficient evidence was charges of trial multitude of against on the adduced the time the him. plea represented a virtu- The Alford including taken before in a al “no situation in which circum- lose” history calculation of criminal category; stances indicate Mackins now vigilance necessary have of one of the such to ensure that crimes that category contributes to his properly treated as an of IV. adjudication guilt. recognize guidelines difference Mackins, twenty-four years David who is types between an old, appeals thirty-year sentence for pleas. Supreme Court decided drug sentencing, various At offenses. than ten case more before adopted recommenda- guidelines incorporated 4A1 a pre-sentence report tions of that as- presume can 1987. We the Sen- eight sessed a total of tencing intentionally Commission excluded history points, placing him in a criminal § 4A1.2 pleas from because the history category Excluding of IV. the Al- did not include the Commission term its Mackins with a criminal leaves ford “adjudication list of what constitutes result history category of III and could guilt.” support pre- Additional such lesser sentence. an instance sumption Sentencing exists because *9 one, this court should have district expressly refers the “Al- Commission evidentiary hearing freedom to hold in plea” guidelines. in 8A1.2
ford which the court can determine whether 3(g) n. The at 8A1.2 “ independent guilt underlay adjudication’ states: ‘Prior plea. means conviction Many judges agree and others discussing article federal
In a recent law review guidelines law are a disaster and can sentencing guidelines, two that the the federal unfair, heavy prison F. in sentences. L. Miller and Ronald result professors, Marc Here, removing approximately Mackins must serve Wright, explain problems judges who most of his adult thirty years prison, substantial discretion from complicated as process life, over a thereof attrib- preside with a substantial sentencing: federal crime that he alleged utable to relates to a steadfastly denies. This case begin where to It is hard to know this guidelines area of the where small that has become describing the disaster improve decision can appellate court its past reform over the federal by giving administration the sen- This is all the twenty years. disaster power inquire and tencing judge because the reform disheartening more evi- independent determine whether or not promise. with much Few re- started so guilt supports plea. in the area of dence especially form efforts — justice, especially and I would remand case to hope as much system federal —have possible resentencing for consistent core. thought their opinion. with this However, sentencing guidelines emerged from the new administra- process great
tive have been one of history. at law reform in U.S.
failures collapse quick, and it has be- sys- difficult to defend the current
come principled sys- tem as the reasoned and America, UNITED STATES of Congress tem believe and reformers guidelines are envisioned. The current widely many ways dysfunc- hated and in HERNANDEZ, Appellant. M. Charles expert agency that creates tional. The guidelines' and monitors the No. 99-5577. —the Sentencing morphed Commission—has Appeals, United States Court caricature of an ad- into ineffectual Third Circuit. agency. Rather than ministrative honest, sentenc- achieving equal wise or Argued: May 2000. ing, primary guidelines effects of the Filed: June (albeit conjunction develop- with other ments) occupy increasing have been to workload, judicial
portions of the federal analysis probation officers
to raise the arguments lawyers
above the type
reasoning judges, to shift system, to shift
offenders the federal systems, to federal
offenders from state pris- federal pour
and to offenders into
ons, longer longer periods. Wright, L. F. Your
Marc Miller & Ronald Heart(land): Long
Cheatin’ Search Justice, 2 Sentencing Administrative 723, 723, BUFFALO CRIM. L. REV. (footnotes
(1999) omitted).