United States v. Frank Canales

question whether each did not consider the have

defendant should be held to known

reasonably that the con- to have foreseen kilograms

spiracy involved more than two cocaine, we VACATE the sentences of defendants and REMAND for further

both

proceedings. AFFIRMED; sentences VA-

Convictions

CATED and REMANDED. America,

UNITED STATES of

Plaintiff-Appellee, CANALES, Defendant-Appellant.

Frank

No. 91-5644.

United States Court

Fifth Circuit.

7,May Rehearing Suggestion Petition for Rehearing

for En Banc

July (Court Appointed), San

Nancy B. Barohn Antonio, Tex., defendant-appellant. for Baumann, Atty., Richard Bill Asst. U.S. Ederer, Durbin, Jr., At- Ronald F. L. Antonio, Tex., plaintiff-appel- tys., San lee. GARWOOD, BROWN,

Before GARZA, Judges. Circuit EMILIO M. GARWOOD, Judge: (Ca- Frank Canales Defendant-appellant convicted, guilty nales) pursuant to his custody. At his escaping from plea, of hearing, modify guilty plea offense in the the sentence be- listed as a 1982 conviction (PSR). The district had not received the Report cause Canales benefit his Presentence rely on the plea bargain that it could in that he not court determined was offense, over- conviction as to serve his state and federal sen- allowed objection, and sentenced ruled Canales’s concurrently custody. in federal tences prison and twenty-four him to months copy also introduced a of an Canales supervised release. Canales years three judgment, state court dated Au- appeals. now 11,1982, gust to which the Texas court had following added the statement: Proceedings and Below Facts date, this is “Note: On above 6, 1974, March Canales was convicted On hereby amended to delete the direction to District Court for the in the United States deliver defendant to United States Mar- Texas, San Antonio Western District shal, District of Texas and to Western Division, of heroin and was of distribution concurrently that run this sentence with years prison. to fifteen On sentenced of the United States District im- Court 13, 1990, transferred to a he was June posed in SA 73CR283 due to writ- 3/6/74 Antonio to serve the halfway house San Depart- from the ten notification Au- of his 1974 sentence. On remainder ment of Justice dated 1/22/82 that said 30, 1990, reported to gust Canales was concurrent sentences from state authori- failing escaped after to return to the have disregarded as outside the ties should be 6, 1990, halfway On December house. proper jurisdiction of the state court.” arrested Canales in United States Marshal evidence, documentary this In addition to Antonio. San sentencing hearing testified at the Canales 7, 1991, pleaded February Canales plea bargain included an that the 1982 escape custody, from guilty to one count agreement the sentences would run 751(a). The in violation of 18 U.S.C. PSR concurrently that he would not have to and offense a 1982 Texas state listed as prison. any time in a Texas state serve cocaine, possession court conviction approximate- that he served Canales stated criminal and increased Canales’s ly 10 months on the state sentence state by three because of this state custody he taken into federal before was objec- filed a written conviction.1 Canales custody. There no evidence to the tion to the PSR’s statement that the 1982 contrary presented by Canales. concurrently sentence ran with Texas court evidence, receiving After the 1974 federal sentence. rely on the court concluded that it could hearing May At his The district court at one 1982 conviction. challenged the constitutional valid- point during seemed to indicate on the ity of the 1982 Texas conviction foreclosed from con- that it believed it was get the benefit of grounds that he did sidering the to the 1982 convic- plea bargain. his Canales introduced a tion: indicating judgment copy of the state court that, “Well, guess my I don’t I concern January had sentenced that he might It be an invalid conviction know. imprisonment, to run years’ 1982 to two is, proper form but if it this is not the ... federal sentence concurrently with his 1974 nothing before this for it because there’s ordering delivered to the has not been over- the conviction Marshal for of the United States turned, challenged in state has not been judg- of Texas. The the Western District a, attack on court and this is a collateral stated, bargaining “Plea ar- ment further that this court is on a defendant, rangement accepted by fol- reviewing only purposes for the Appeal is denied.” lowed the Court what sentencing guidelines to determine copy of a motion filed He also introduced sentence should be. appropriate their attorney therein case the state That, has been set unless that conviction seeking to withdraw dated March for which he possession same conviction of cocaine conviction—the 1. Canales was arrested for halfway placed house in 1990. in a parole heroin was later while on for the 1974 federal aside, resulting follow that convic- “Sentences this court will tion or use that conviction because to this that have been reversed or vacated be- challenged or set point it has not been law, cause of errors of or because of is not in a aside and subsequently-discovered evidence exoner- it’s, ruling a on that if has not been make ating defendant, are not to be count- point.” to this Also, resulting ed. sentences from con- however, sentencing hearing, Later in the victions that a defendant shows to have to have con- the district court seemed constitutionally been ruled in- rejected sidered are not valid to be counted.” U.S.S.G. comment, 1982 conviction: 4A1.2, (n.6) § not convinced that there’s “The court is background The note to that same section sufficient evidence here for the court to explicitly reserves “for court determination ignore disregard or or not or overturn the issue of whether a defendant col- into account the state convic- take laterally sentencing attack at con- application tion in the of the Guidelines. comment, Id., (backg’d.). viction.” face, that it’s On it’s the court is satisfied amended, Commentary Until the was ef and the evidence a valid conviction 1990, application fective November note six presented enough is not to convince it stated that sentences should not be counted enough to convince the otherwise from convictions “which the defendant ignored.” court that it should be to constitutionally shows have been inval The district court overruled Canales’s ob- 4A1.2, (n. 6) (No id.” U.S.S.G. comment § him 24 jection and sentenced to months’ 1989). interpreted vember We have release, imprisonment, years’ supervised previous Commentary version of the as al mandatory assessment. Canales and a $50 lowing challenge prior defendants to con appeals, challenging only his sentence. now victions their federal hear Edwards, Discussion ings. v. See United States (5th Cir.1990); F.2d see also primary argument appeal Canales’s Mims, v. 928 F.2d United States relying on a that the district court erred Cir.1991); (9th Wildes, v. United States constitutionally prior state convic- invalid (7th Cir.1990); 910 F.2d computing history his criminal tion Jones, (4th Cir.1990), Based on 1982 Texas con- v. 907 F.2d 456 score. States — viction, points denied, U.S. -, the district court added three cert. S.Ct. score, history increas- to his criminal thus (1991); United States history category III ing his criminal Dickens, (8th 411-12 Cir. guideline range imprison- to IV and 1989). law, body Under this of case eighteen twelve to months to ment from proving a conviction’s constitu burden eighteen twenty-four months. person tional rested with the argues that his 1982 conviction should not challenging the conviction. history have contributed to his criminal however, that government argues, The guilty plea on a score because rested applica- the November 1990 amendment constitutionally invalid since the which was significantly narrows the tion note 6 agreement state breached the on which the challenges to convictions used to calcu- plea based. history catego- late a defendant’s criminal guidelines address The essence, argues ry. In the Government constitutionally invalid longer defendant can no attack that a computing victions be considered in a sen- prior conviction for the first time category. history criminal To defendant’s allowed under the tencing as was of a determine the criminal score guidelines; a defen- earlier version of the defendant, sentencing guidelines direct an earlier only preclude the use of dant can for each district courts to “[a]dd calculating his criminal histo- imprisonment exceeding prior sentence of collaterally independently ry if he has year and one month.” U.S.S.G. one conviction and the 4Al.l(a). attacked Commentary The 4A1.2 contrast, Ca- 6) ruled invalid. explains: (application has Hewitt, (8th background note States v. 942 F.2d 1270 Cir. nales contends 1991); Avery, F.Supp. the defendant retains the makes clear that (D.Or.1991). right conviction as constitutionally at the invalid The Second and Eleventh Circuits have hearing. adopted interpretation that harmonizes language application amended note 6 the Govern Before we address with the new note. In Jako- argu ment’s and Canales’s substantive betz, the Second Circuit held: ments, question initial ex we note that an short, newly “In revised version of ists as to whether the guidelines clarifies the commission’s gener applies note 6 even to Canales. on defendants’ direct guide in this is that al rule Circuit “[t]he validity prior to the of convictions at of provision in effect at the time sen line sentencing: may while defendants al- guide tencing version of the dictates which ways present the court with apply.” lines we must United States v. that evidence another court has ruled 358, Cir.) Ainsworth, (5th 932 F.2d prior their convictions and hence invalid 3553(a)(4)), (citing cert. de 18 U.S.C. § part unsuitable for consideration as of — 346, -, nied, S.Ct. history sentencing, the criminal score at (1991). L.Ed.2d 286 Canales was sentenced the court also retains discretion to deter- application May in after the amended mine whether a defendant mount an effective, the note 6 became but committed validity initial of such August stated offense 1990. We have Jakobetz, convictions.” 955 F.2d at 805. in on an that “an increase sentence based Circuit, dicta, The Eleventh has inter guidelines af amendment to the effective preted application amended note 6 the committed ‘wouldbe an ter the offense was In Comog, same fashion. the Eleventh post of the ex obvious ... violation’ facto began by observing that the revised Circuit the United States clause article of language application of note 6 at first Suarez, v. Constitution.” United States only may “seems to indicate that the court Cir.1990) (5th (quoting 911 F.2d exclude from its consideration convictions Woolford, v. 896 F.2d United States invalid; thus, already that have been held (5th Cir.1990)). post 102 n. 4 “No ex facto the court would have discretion de occurs, however, change ‘if violation does validity prior termine the of a conviction in personal rights,” not alter but “substantial sentencing proceeding.” the Cornog, 945 merely changes procedure of Circuit, “modes which F.2d at 1511. The Eleventh how ’ ” ever, do not affect matters of substance.” Id. rejected interpretation light Florida, background The harmon (quoting at 1022 482 U.S. the note. Miller language ized the of the note 2446, 2451, S.Ct. “[Ujnder application with that of the note: (1987)). Because do not construe the we guidelines, only courts must exclude anything application note 6 to be previously convictions that had been held gov procedural provision more than a history invalid from the criminal score. challenges prior erns how Commission, however, The left courts brought, hold that the amended we collaterally discretion to examine the validi application applies note to Canales. In so ty convictions that the defendant doing, we observe that both Canales and challenged previously.” had not Id. The the Government have assumed that proceeded then to list Eleventh Circuit application amended version of the note is factors that a district court should consider applicable to Canales. deciding whether to exercise its discre interpreted A courts have few collaterally conviction: tion to review a application on effect of the amended note 6 court should consider the “[T]he convictions. See Unit deter that would be needed to (2d Jakobetz, 955 F.2d 786 ed States v. conviction, validity mine the includ Cir.1992); Day, United States ing is contested and whether the issue Cir.1991); (8th v. Cor apparent from the (11th Cir.1991); 1511 n. 16. record.” Id. at nog, 945 F.2d 1504 Oregon Eighth validity The Circuit and a district constitutional of convictions which seemingly ap- place jurisdictions” take within their court have taken a different Hewitt, Eighth timely sentencing sum- “the need for proach. following adjudication guilt application 6 autho- ... consistent with marily held that goal underlying Speedy including in a de- Trial rized Act.” Id. at 1407-08. history fendant’s criminal score unless showing had made a proper interpretation The ap- of amended conviction had been ruled consti- plication note 6 to section 4A1.2 is an issue Hewitt, F.2d at tutionally invalid. impression in of first this Circuit. We now (“This 1276; Day, also 949 F.2d at see hold, interpretation in accord with the tak- already that the em- Court has determined Circuits, en the Second and Eleventh change collateral attacks phasized forbids application note 6 allows district compute a de- convictions used to court, discretion, inquire its into the under the fendant’s criminal validity convictions at Guidelines.”). Oregon hearings. approach prefer- We deem this cases inter- gives after an extensive review of meaning able because to the lan- application preting guage the earlier version of found in both note 6 and the following procedure interpre- note detailed the note. Under this tation, only required a court is to challenging constitutionally invalid convic- exclude a prior computation conviction from the of hearings: sentencing at tions history category the criminal the if defen- foregoing, I find that I “Based on the previously dant shows it to “have been pri- may properly rely upon facially valid otherwise, constitutionally invalid”; ruled determining the judgments or whether the district court has discretion as to requisite convictions have been estab- not whether or to allow the defendant to In purposes for the 4B1.1. lished § challenge prior the conviction at sentenc- facially judg- valid order to overcome ing. approach the extent that the the To ment, I find that a defendant must show Eighth Oregon and the district that the conviction has been may deny court court dis- unconstitutionally inval- determined to be challenge, cretion to entertain such a we appeal or in a habeas id either on direct disagree ignores this the intent of because proceeding Applica- in accordance with expressed in the back- Commission 4A1.2. If exhaus- tion Note to § ground to allow the court pursued completed or tion has been discretion whether to entertain some prior sentencing, I find that the to then prior challenges to convictions. procedure appropriate is for the defen- Having determined that the petition to file a for a correction of dant in its guidelines authorize district pursuant to 2255 follow- discretion, hear constitutional to ing a determination that the conviction previ- prior to convictions which have not unconstitutionally obtained.” invalid, turn to ously ruled we now Avery, F.Supp. at 1408. in the instant case. the facts Oregon district court framed the issue reviewing “procedural expediency” instead After the statements as one of dimension,” district court at the sentenc noting findings of “constitutional ing hearing, we are unsure whether although upon a constitu- a sentence based simply court refused to let Canales tionally impermissible, invalid conviction is instead challenge the 1982 conviction or required to reach the a district court is not challenge prior con allowed Canales constitutionality underly- of an issue had not decided that Canales viction and the context of a sen- ing conviction within proving prior convic met his burden reaching tencing hearing. at 1407. In Id. point constitutionally invalid. At one tion conclusion, the court stressed district court stated that hearing, the in the comity to both state “strong interests has been set conviction appellate courts and other federal district “unless that that convic- aside, will follow determining this Court appellate courts prior nóte that a defendant convicted of a to this that conviction because tion or use challenged or set normally not been have such an point it has federal offense will not in a this Court is aside and If he is in or alternative available. it’s, not been ruling on that if has make a offense, prior federal parole for the point.” challenged to this proceeding under 28 U.S.C. can institute a discharged If he has been the district language indicates that This custody, to entertain Canales’s he can institute a coram nobis simply refused at the challenge conviction Morgan, proceeding. See United States However, a later sentencing hearing. 247, 251-53, 98 L.Ed. 346 U.S. 74 S.Ct. district court indicates that the statement (1954); Bruno, Canales to did allow (5th Cir.1990). With F.2d that Canales had not and decided conviction convictions, however, may be un- state court is not proof: “The met his burden a defendant has such an clear whether sufficient evidence convinced that there’s the issue is remedy. alternative Where ignore disregard or for the court to or here clearly ap- resolution not contested and its not take into account overturn or record, discretion should parent from the in the of the Guide- by declining to normally be exercised as to Because the record is unclear lines.” challenge to a conviction an- sider the Ca- the district court entertained if the defendant has available other court nales’s remedy (apart from a later an alternative determining such a precluded from felt proceeding in the then sen- section 2255 compelled are to remand to challenge, we itself). tencing court proceedings.2 court for further the district case, has instant because Canales remand, the district court is free custody from on his already been released deciding consider a number of factors conviction, us it is unclear to 1982 state entertain the whether to him from Texas would foreclose whether These include “the prior conviction. corpus petition bringing a state habeas needed to of the that would be TEX. challenging that conviction. See conviction, validity determine (Ver- art. 11.07 CODE CRIM.PROC.ANN. including the issue is contested whether Renier, 1977); 734 S.W.2d Ex Parte non invalidity apparent from and whether the (“[A]n (Tex.Crim.App.1987) 354 n. 8 F.2d at 1511 n. Cornog, record.” relief under Article applicant [who seeks] those of considerations include 16. Other 11.07, suffering collat- 3 must be §§ comity, especially where the felony legal consequences of a final eral by a state but also conviction is in order for while confinement conviction A by federal court. where it is another relief.”).3 ap- It also grant this Court however, consideration, may often be key not afford Canales pears that Texas would remedy has a other the defendant a of coram nobis opportunity to file writ sentencing proceeding through than the Parte relief. Ex We or seek other similar See attack the conviction. which to error, two under U.S.S.G. point nal Canales makes a 2. As his second 4Al.l(e). very cursory argument that because he was halfway serving portion of his sentence in a Although Canales is barred it is clear that 3. longer escaped, he was no house when petition filing with the Texas a habeas prison the district court erred in add and thus Appeals under TEX.CODE of Criminal Court having history points ing for com two criminal no because he is art. 11.07 CRIM.PROC.ANN. longer imprisoned he was for mitted the offense while sentence, it is on his state justice sentence. See U.S.S.G. a criminal petition arguable could file a habeas that he 4Al.l(e). argument is meritless. See This Rodriguez v. court. See a Texas district with Vickers, (5th Cir. 891 F.2d 86 United. States 1989) Eighth Supreme Dis- Judicial Court of provisions (holding trict, (Tex.Crim.App.1989); that the enhancement S.W.2d (e) 1.1(d) Renier, apply guideline at In Rodri- sections 4A 734 S.W.2d see also Appeals serving stat- escapes guez, of Criminal while the Texas Court when the defendant center). ed: We address at a residential clarify "Although post writ of ha- argument simply the district 'final' conviction 11.07, supra, corpus pursuant to Art. increasing crimi- beas not err court did (Tex.Crim.App. ON FOR AND McCune, PETITION REHEARING 246 S.W.2d SUGGESTION FOR REHEARING 1952); Massey, 249 S.W.2d Ex Parte EN BANC general As a (Tex.Crim.App.1952). rule, ordinarily en July court should a district in a challenge to a tertain a GARWOOD, Judge: appear hearing if it does not deny petition We the Government’s for has an alternative reme rehearing. opinion speaks only Our to situ- challenge the convic dy through which ations in is at- which Therefore, court on if the district tion. that, grounds if tacked on nonforfeited has no that Canales established, remand determines render would (or subject viction to federal court collateral avenue, besides attack as invalid under proceeding in subsequent section It is not claimed Constitution. court), through which to here falls challenge to the 1982 conviction conviction, category. The Government outside of that discretion and exercise its court should recognizes precludes that the Constitution prior state challenge to the hear Canales’s sentencing purposes reliance on at least conviction, special circum absent some unconstitutionally certain obtained here.4 If to our attention stance called Tucker, convictions. United States exercise discre court does the district 443, 92 S.Ct. tion, time allow Canales sufficient should however, (1972). implies, The Government re present his evidence and opportunity other that there plea guilty garding that, being though subject to set aside on and make collateral attack because of his 1982 conviction federal court supporting infirmities, constitutional are other federal re specific findings in that appropriately not so infirm that the Consti- nevertheless gard. precludes their consideration for sen- tution cited tencing purposes. No authorities are Conclusion assertion, examples no support given, and it is not such convictions are above, we vacate reasons stated For the argued that the 1982convic- expressly even remand for further sentence and category. within that tion here falls proceedings consistent herewith. argument no demonstrates Government’s judgment. prior opinion and error in REMANDED our and VACATED apparently the relevant custody’ We witnesses applicant 'in be mandates Court, locally issues available and the factual is entertainable were before the writ corpus relatively simple. Art. ... the writs of habeas under were under Art. Texas Constitution and 8 of the adopted interpretation we have Because 11.07, V.A.C.C.P., 11.05, and Art. to de- today gives district court discretion limited_ V.A.C.C.P., A writ of are not so challenge, the to hear a cide whether pursu- corpus filed in the district court habeas ant to its wheth- to determine court is in the best only original jurisdiction demands challenge to consider the appropriately it can er applicant be under restrained it be best or whether would 11.22, supra." Rodríguez, of Art. definition sentencing court separate If the review. left for Hargett, Accord Ex Parte S.W.2d at 558. appropri- it can is one decides that (Tex.Crim.App.1991) 819 S.W.2d (“Even though of, impose "proce- dispose can ately the court applicant not be presentation of dis- requirements for the dural V, fined, CONST., provides an Art. 8§ TEX. factors,” requiring as puted such legal consequences collateral which avenue (with specific object state- timely challenged.”) of a conviction reasons) prior convictions included ment of of Criminal of the Texas Code 11.22 Article PSR, prevent the in order in the broadly as "the kind restraint defines Procedure “parade of disintegrating into a horribles." person over an- exercises of other, which one control challenged prior Jones, If the at 465. limits, him within certain not to confine deter- the district court is one which authority general subject and him to the but to decision affect its mines right.” will claiming TEX. person power of the event, may record and any state on the (Vernon so art. 11.22 CRIM.PROC.ANN. CODE that basis. hear the 1977). decline to DENIED Rehearing is The Petition Judge in panel nor of this no member having on the Court

regular service active polled on re- thé Court be

requested that (Federal Appel- Rules of

hearing en banc 35) Sug- and Local Rule

late Procedure DE- Rehearing En Banc is

gestion for

NIED. AND LOAN

SECURITY SAVINGS

DIRECTOR, THRIFT OFFICE OF

SUPERVISION, etc., FDIC,

etc., Defendants-Appellants.

No. 91-1570. States Court of

Fifth Circuit.

May

Case Details

Case Name: United States v. Frank Canales

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 8, 1992

Citation: 960 F.2d 1311

Docket Number: 91-5644

Court Abbreviation: 5th Cir.