United States v. Lazaro Roman

FAY, TJOFLAT, Judge, Chief Before ANDERSON, HATCHETT, KRAVITCH, DUBINA, BIRCH, EDMONDSON, COX, CARNES, Judges. Circuit BLACK PER CURIAM: whether must decide we this sentencing courts gives 4A1.2 U.S.S.G. § constitutional- to examine the discretion first for the state convictions ity of earlier calculating a defendant’s time is “no.” history. The answer guilty to pled Roman Lazaro Appellant cocaine with intent possess conspiring to of 21 U.S.C. in violation distribute report presentence 841(a)(1). In Roman’s gave Roman officer (PSI), probation on a 1987 based history score conviction. See burglary Florida increased 4Al.l(a). points three These id. at range. See guideline applicable A. Pt. Ch. objected that the

Roman’s have been should Florida because, uncon- on an was based counted theory guilty plea. The stitutional knowing and plea was not that Roman's En- speak he does intelligent because state at the interpreter had no glish and support hearing. But counsеl failed plea (even one with affidavits these contentions offering in- Roman) transcripts, from summary of the state only a brief stead to a appearance Similar proceedings. entries, summary seems clerk’s docket pages of four Circuit copy It records. County, Florida Dade interpret- whether nothing about shows not. present or er was ‘ Milledgeville, GA George, E. Hulane defendant-appellant. (Court-appointed), Roman’s refused The district hearing evidentiary Peterman, hold quest Solis, F. George T. Michael The court conviction.1 GA, validity of the state Macon, Thomas Attys., III, Asst. wiping convic- not “start it could explained Appellate Wyderko, Gannon, Joseph C. M. deci- record,” noted its but Justice, off of tions Div., Wash- Dept, of Section, Crim. dealing if it were might be different sion D.C., plaintiff-appellee. ington, involved, offense Roman’s and reduced cocaine granted other Roman’s to 28. level from 32 PSI, on the amount was based challenges to consider collateral “presump- cretion that was not a conviction But, the amended text de- state convictions.2 pressed, R2-1. When tively valid.” 4A1.2, plain: 6 is section of Note sentencing judge told the fense counsel can exclude convictions district courts to counsel only evidence known already ruled invalid. that have chal- supported Roman’s that 6, Nothing guidelines much less the Note was Florida conviction lenge to his themselves, courts to authorizes district hearing. summary of the state question state convictions for other rea- this court vacated panel appeal, On sons. his case remanded sentence and Roman’s amended, gen- courts Before Note 6 was section concluding that resentencing, to allow erally interpreted section 4A1.2 discretion to the district court gave 4A1.2 convictions defendants state United conviction. the earlier state review See, e.g., sentencing. at for the first time Roman, (11th Cir. v. No. 90-9084 States Brown, 677, v. F.2d United States opin- 7, 1992). panel We May vacated v. Daven- Cir.1990); (7th Cir.1992), now ion, F.2d 121, (4th Cir.1989); port, the district court. affirm Dickens, 410, v. F.2d States United (8th Cir.1989). The 1990 amend- 411-12 DISCUSSION language on specifically ments deleted I. relied, substituting a these courts which specifies what con 4A1.2 U.S.S.G. § reference to sentences more restrictive his in a count defendant’s victions “previously (emphasis ruled add- invalid” indict Roman’s At the time of tory score. ed). 6 autho- language No Note now 4A1.2 to section ment, Application Note 6 rizes collateral review. defen part: “Convictions which

read Background does not Comment constitutionally to have been dant shows meaning, recognizes change the Note’s but in the criminal may not be counted invalid sentencing guide- from the apart that — 4A1.2, comment history score.” U.S.S.G. § federal courts bars lines —the Constitution 1989). Roman’s sen 6) (Nov. Before (n. at using certain of convictions from kinds amended to read: 6 was tencing, Note See United States from convictions resulting “[Sentences 92 S.Ct. 404 U.S. previ have been that a defendant shows Texas, (1972); L.Ed.2d 592 constitutionally invalid are ously ruled 258, 262, 109, 115, 19 L.Ed.2d 4A1.2, com U.S.S.G. to be counted.” § ac- Background Comment 1991). 6) (Nov. The same amend (n. ment guide- nothing said knowledges “Background” Com ments also added authority to remove a lines could leaves ment, says, Commission “[t]he in such cases. challenges collateral consider wheth the issue of determination for court pow- independent guidelines add no But the may collaterally attack er a defendant for collateral review. er sentencing a conviction.” 4A1.2, (bаckg’d.). comment II. argues the next Constitution these argues Roman Roman to conduct district court required the amendments, retain dis- sentencing courts sentencing) time at for the first state convictions on Novem- became effective 2. The amendments Jakobetz, F.2d was sentenced Because Roman with (2d ber date, Cir.1992) (courts to allow them. See 18 retain discretion we must after — U.S. -, Canales, 3553(a)(5); challenges), States v. U.S.C. United collateral Canales, Cir.1992) (amendments changes raise Ex Post procedural (same). opin do not panel’s are In our F.2d at 1315 960 ion, concerns). Facto Unit contained in panel relied on dicta (11th Cir. Cornog, F.2d 1504 ed States v. meaning split on Other circuits 1991), remains review to hold collateral Compare amendments. these Roman, discretionary Cir.1991) under the amendments. Hewitt, op. attacking slip (amendments from bar defendants conviction, linеs even did not authorize district court Florida hearing on his general, collat- examine the earlier state not.3 guidelines did present enough must be defense of state eral review But corpus proceedings. lay a factual foundation for collateral through habeas grounds has held view on the the state convic- Supreme rely void,” “presumptively tion the sen- Burgett, void.” AF- “presumptively imposed- tence the district court is (examining at 262 FIRMED. conviction); Tuck- an uncounseled state TJOFLAT, Judge, specially Chief (same). er, concurring: defendant, sentencing, facing So, when a (the Reform Act of 1984 that an facts that show sufficiently asserts Act),1 Guidelines,2 through Sentencing void,” “presumptively is earlier conviction to directs district courts offend- sentencing requires Constitution history In er’s be- earlier conviction court to review this offender, Roman, Lazaro ob- account.4 taking fore into jected the district court’s consideration to kinds cases that the We believe burglary on of his 1987 Florida “presumptively that can included be ground that the conviction was ob- in number and are category are small void” tained in violation of the United States uncounseled convictions. perhaps limited to district court declined Constitution. The today to no need define But we have what Roman’s invitation to review the constitu- category. fall into this kinds of convictions tionality ques- conviction. The in this proffer case was Defense counsel’s us is the district court tion before whether inadequate hearing.5 Defense coun for a so, objection, could entertain the Roman’s constitutional sel conceded that doing it erred not so. whether summary on the state claim was based summary—which did not The en banc court looks to two sources alone. And the authority question: inter affirmatively the absence answer this show require Supreme Sentencing Guidelines and preter—was too indefinite agree guide- precedent. I with the court that the district court to act. Because void,” that, regardless sumptively pro- with of our is inconsistent his 3. Roman also claims review, posed only goes we must remand standard and to the burden decision on collateral resentencing proof. district court did because the. responsi finding acceptance of on make a concurrence, Judge his Chief talks bility procedures set out and not follow questions about What not before us. the Chief Jones, in Cir.), Judge mainly about whether cate- writes is gory constitutionally that infirm convictions (1990). Roman raised neither 112 L.Ed.2d 230 beyond cannot be used at extends panel or the district issues before these Burgett the kinds of convictions at issue in and court; why compelling he offers no reason 'and Tucker. He stresses conduct as distinct from them we should consider now. trying develop He is some convictions. also application kind test or a wide rule for Burke, 334 U.S. 4. Townsend v. variety of future But decide case cases. cited L.Ed.” also us, before we do not have to decide these hard judge parties, There a state seem- is different. questions We re- of constitutional law. ingly uncounseled defendant on sentenced an because, legal every strained standard that, fact, had of earlier convictions basis (including proposed that has been to us several Court reversed convic- occurred. "presumptively void” different definitions grounds. process Id. at tion due on considered), proffer we have counsel’s hearing factually trigger too indefinite to pertinеnt earlier conviction Judge believes under both the 5. The Chief present case. Tucker, and such as Guidelines cases that cannot used at kinds of convictions (1988). 1. 18 U.S.C. §§ 3551-3586 sentencing are from a constitu- those suffer presumption tional defect that undermines Commission, Sentencing 2. United Guide- fact the under- the defendant in committed I, 1990). (Nov. lying phrase, "pre- lines act. He also believes Manual I. courts provide district do not cannot, I question.3 authority in A. precedent Supreme Court agree that the introduction of the Before entertain chal- quires Act, Reform the federal scheme prior con- void” “presumptively lenges to model, “medical” such as employed a Nevertheless, agree I victions.4 Tucker. premised This model was found present that Roman did the court prisons on the belief that could rehabilitate objection, his support sufficiеnt inmates, board, parole acting that a affirming judgment in the court’s join I “physician,” could determine when an sentence. Roman’s sen- inmate had been “cured.” Prison length, thus tences were indeterminate the court disagreement with My central imposed periods of incarceration were interpretation from its stems exclusively purpose for the of reha- almost Texas, deterrence, bilitation; punishment, general (1967),5 L.Ed.2d specific were incidental con- deterrence sequences parole Once the scheme. concludes The court that an inmate had been board believed has held Supreme Court [that] “the rehabilitated, the could release the board- rely on not parole. inmate on ” void.’ ‘presumptively that are model, the Under this court Ante, the ignores This conclusion conducted a non-adversarial sen- Guidеlines’ between the differences virtually ‍​‌​​​‌‌​​​‌‌‌​‌​​​‌​​​​​‌​​​‌​‌​​‌​​​​‌​​‌​​​​​​‍hearing, considered a limitless and sentencing models model, and the Scrog of evidence. scope and Tucker. Burgett the court Had in gins, Cir.1989), sentenc- goals the of Guideline on focused Burgett (1990).6 and sen L.Ed.2d 946 it would viewed

ing, reviewable,7 judge, a trial tences were light. in a different peti question of whether the provide of the resolution states that the 3. The court aside. engage de- have been set power" in such tioner’s conviction should independent to "no Burgett, prosecution presented the Guide- What Ante at-. In the terminations. subject, might say cannot petitioner’s prior on in lines of the by court procedures a trial utilized trigger application control the of the the state’s order to court, however, mere- fashioning The Guidelines a sentence. provisions. in trial The recidivism appropriate identify relevant to ly the facts ignore jury this evidence the to instructed not, and under Guidelines do sentence. The therefore, recidivism issue. to address cannot, by provide process trial which Act opposed as Court reversed the determining carry judicial judges task of out sentence, prose resulting to the facts. these irrelevant, jury presentation cution’s prejudicial, presumptively evidence. See but recently rejected this Supreme has 4. Burgett, 269-72. — U.S. -, Raley, approach. See Parke v. — U.S. -, -, Raley, But see Parke 517, 524, 121 L.Ed.2d 391 infra (reading 121 L.Ed.2d today implies that 24. court note holding conviction could "that precedential See ante force. has no standard its enhancement”). be used for sentence (“under every legal that has standard note (including different proposed us several to we have 'presumptively play void’ that no role at Tyрically, prosecutor would definitions considered), 6. factually proffer might was too prosecutor hearing; anything counsel's hearing trigger the earlier on to would be communicat- indefinite to want the court know present pertinent to probation office and included court’s ed to the Nevertheless, case.”). majority en banc fashioning presentence report. clearly the constitutional indicated sentence, court would consider apply should it believes district courts by standard augmented report, as corrected challenges to faced with collateral hearing, allocu- the offender's offender at tion, therefore, compelled, to ad I feel convictions. might present attorney anything his and case. directly presented in this the issues dress his behalf. Burgett because the sentenc- discuss I do not course, were, reviewable. Illegal sentences immaterial to ing there model at issue was treatment care, or other correctional to cal sentence, did not have fashioning a effective manner. the most or indi- used he how reveal by served to be goals penological cate the 3553(a)(2); Mistretta 18 U.S.C. § the sentence.8 361, 367, United, States, pris- philosophy model’s (1989). Congress The medical gradually inmates rehabilitate goals ons could penological four identified thus 1984, Congress and, in disrepute, fell into deter general sentencing: punishment, replaced with' the model abandoned deterrence, and rehabilitat rence, specific system Act’s Sentencing Reform ion.9 determinant to be sentences prison quiring sentence, fashioning a a court aid To Thus, abolished. Parole length. Sentencing Commission Act created were imprisonment terms fixed such guidelines promulgate directed it Scrog- credits. good-time subject offend- given offense indicating, for a n. 9. &1208 F.2d at gins, 880 achieved. goals er, these model, the medical from the Departing resulting Sen- 994.10 The 28 U.S.C. § inquiry focused Sentencing Act sen- circumscribe tencing Guidelines Specifical- purposes on the provide a discretion tencing court’s fash- that sentences required ly, the Act review. meaningful appellate structure ioned of the of- sentenc- “begins guideline seriousness (A) reflect law, for the circum- respect determining the fense, promote ing process punishment just offense provide of the defendant’s and to stances any history, and offense; the defendant’s guide- relevant deterrence adequate facts deemed other (B) afford (foot- conduct; Scroggins, lines.” however, only so, omitted). It does from further public 264, — U.S. -, 116 L.Ed.2d ties; (8) community — U.S. -, denied, (1991), 112 and cert. 217 offense; (9) the role in (1991), 428, and cert. 447 116 L.Ed.2d history; (10) criminal 887, denied,-U.S. -, 116 upon ac- criminal degree dependence of 983, (1992); Keys, 899 F.2d States v. United 791 tivity a livelihood. for disciplinary Cir.) (10th (holding prison that 994(d). Mogel court ob- 989 theAs § U.S.C. 28 served, departure), upward however, be used for ... record can the Guidelines "[w]hile 160, 858, 112 L.Ed.2d affect- variety identify of circumstances a wide 1288, Funt, sentence, v. component a of ing the offense-based (“[A] may entirely (11th Cir.1990) im be component almost sentence offender-based the considerations, history.” range wide of posed criminal on a based relies on the offender's 4, A). which the including, example, Pt. for (citing U.S.S.G. Ch. conduct for F.2d at 1560 (citing indicted.” been has not defendant 242, 241, un- York, of the conduct Guidelines' treatment The v. New Williams convictions, as derlying 1081, overruled 1079, reversed and Houle v. L.Ed. 1337 conduct, empha- its Cir.1974))). confirms States, well as unindicted 493 F.2d United determining fоr prior conduct criminal sis on Even if recidivism. for likelihood not make Sentencing an offender’s Commission 14.The held unconstitution- prior concerning been a conviction has the likelihood judgments normative grounds, the Guidelines underly- or reversed on other by al conduct indicated the of recidivism of the conduct provide Instead, for consideration still underlying the Commission ing prior convictions. 4A1.3. U.S.S.G. § that conviction. average assigned all government and of recidivism. The likelihood Schweihs, See may departure from a seek the offender 1992) ("although of one element Cir. the conviction presenting evidence that norm proved,” sen charged was not offense of recidi- greater or lesser likelihood presents a underly conduct could consider " 4A1.3; 18 Likewise, acquit- this norm. conviction). vism than 'an ing reversed the issue under only the conduct. History Score Criminal an offender’s engaged the offender is whether of crimi- presumption a raises it because thus, likely past criminal conduct inform the that conduct nal recidivate,15 is relevant such likelihood the offender’s of determination engage in the did not only if the offender recidivism. of Therefore, to raise an underlying conduct. presump- of the to the invocation C. the con- tion, deny must that the offender sentencing hear- hypothetical Consider occurred.16 duct of evidence presents government ing. challenge, here a constitu- offender’s conduct prior criminal the relia- challenge, must also attack tional specific need show the fact just the presumption bility of pres- government When deterrence. —not crim- an indicator conviction—as gov- evidence of ents Otherwise, government inal presumption conduct. invoke ernment seeks if the by arguing even respond underly- could engaged offender invalid, constitutionally were offender, may conviction ing conduct. pre- invoke nevertheless court should govern- so challenge the conviction Guidelines, the sen- sumption.17 Under evidence independent present must ment (1992) (“the ‘narrow 120 L.Ed.2d (West (departure 3553(b) Supp.1992) U.S.C.A.§ miscarriage justice no was of "aggra- exception' for shows an when the offender considered kind, petitioner of a or mitigating avail vating circumstance or occurred, violation, the admis into ‘resulted in adequately taken consider- degree, not to a inculpatory formu- Commission at trial of truthful sion ation guilt in a result guidelines should lating affect ” described”); Zant, McCleskey (quoting from that different sentence determination.’ U.S. -, -, Johnson, 113 L.Ed.2d employed Cir.1991) procedure (explaining added)); (1991)) (emphasis Kuhlmann Scores); History departures Wilson, from Criminal 455 n. comment, 4A1.1, (backg’d) (1986) ("[T]he prison see also U.S.S.G. n. imperfection ("[i]n recognition [mea- light probability ‘show a er must fair sentence,] history by the howev- suring er, evidence, alleged including to have all the sig- about the permits information § 4A1.3 (but regard illegally with due admitted been underly- similarity past conduct nificance it) tenably unreliability any used as basis ing prior convictions wrongly excluded or to to have claimed applicable outside imposing a trial, only after the become available have Thus, sentencing court range.”). guideline rea entertained a facts would trier ” from an of- upward may depart or downward Friendly, guilt.' (quoting doubt of his sonable Score, History based reli- fender's Criminal Attack on Collateral Innocence Irrelevant? Is concerning the offender’s able evidence 142, 160 Judgments, 38 U.Chi.L.Rev. Criminal (1970)). to refine its determi- in order of recidivism. the offender's likelihood nation of demonstrate that 17.Should up the ratchet offend- court can the Because 15. invoked, prior presumption not be should obstructing justice, see Level for er's Offense purposes "counted” for would not 3C1.1, deny would an offender U.S.S.G. § may, government of of course, 4A1.1. § provide U.S.S.G. by prove, a government can if the conduct evidence, including reliable still (not beyond a preponderance of pro- prior presented criminal in evidence ceedings, demonstrating Ignancio doubt), v. States see United reasonable Munio, underlying con- that Cir.1990) (11th (per F.2d Simmons, did occur. duct engaged curiam), had the offender that Cir.1991); (11th see also 192 n. 5 underlying the conviction. conduct criminal (“In any 6A1.3(a) resolving reason- U.S.S.G. object Moreover, to a need an offender important concerning to dispute a factor able simply validity if the offender conviction’s determination, court conviction over- that the to demonstrate wants regard to without relevant information See U.S.S.G. of recidivism. states his likelihood admissibility rules of its under 4A1.3; supra note 13. trial, provided applicable that the informa- sup- to of has sufficient indicia tion port requirement analogy that to this A 16. close accuracy.”); § 4A1.3 probable U.S.S.G. its deny is found the conduct must depart from See, to e.g., (requiring reliable information Saw- cases. "actual habeas innocence” supra — history category); 13. -, -, note Whitley, yer v. U.S. II. entertain must therefore court tencing (1) de- the offender objection offender’s A. objection un- and nies the holding The court reads Tucker as associated with presumption dermines district to requires the Constitution courts II, in Part IAs conclude the conviction.18 challenges “presumрtively entertain prior considering decision when Supreme Court’s void” under history. The offender’s review sentencing courts must standard, however, “presumptively void” challenges.19 such address the role the Guidelines does not convictions, and, result, prior as a assign to that is inconsistent with the

provides a rule sentencing goals.20 Act’s convictions, they years brought had become "final previously his has If the offender context, ago.” held that the through In this court a tradi- challenge appeal or direct regularity” “presumption must attach (and of perhaps also in proceeding collateral tional question ‍​‌​​​‌‌​​​‌‌‌​‌​​​‌​​​​​‌​​​‌​‌​​‌​​​​‌​​‌​​​​​​‍judgments, even when the sentencing hearing), judgment to final prior federal rights. Although proceeding we waiver of constitutional in such the offender adverse to during principle perhaps with this relitigation that issue most familiar preclude would Co., actions, long corpus it has sentencing. v. Marsh Block & in habeas Harbuck Cf. Cir.1990) (holding equally other forms of applied attack_ collateral definition, fairly litigated fully Respondent, in state and collat- issues Credit). convictions; erally previous Full Faith and he be accorded attacked must his sought deprive their normal force them matter, Moreover, sen- practical if the as a proceeding that had an effect in a inde- and prior criminal find that the court can pendent purpose than to other overturn occur, upward depart it can conduct judgments. 4A1.3, and need n. 6 and 4A1.2 §§ (citations omitted). at-, Id. Thus, validity over the protracted debate engage in a expressly refused to ad- while the Court States v. See United conviction itself. today, recog- we dress the issue face Cir.1992). Cash, 983 F.2d 558 jurispru- applicability its habeas nized the challenges I case, argued collateral dence to the Government In this were faced that if the Court district court believe fair and correct for it is both principles find that this it would the Gov- issue in employ presumption. (which already comity be overridden unless offenders cannot asserted that ernment has protect procedures fail to individual opportunity to the state have a fair require through appeals validity rights) direct federalism conviction's (If judgments. See attack. collateral to honor state criminal forms of traditional merit, U.S. -, objection Whitley, it is 112 S.Ct Sawyer had sufficient Jones, chal- would have United States v. probable the offender 120 L.Ed.2d 269 Cir.1990) (Jones I) parties (Wil proper lenged the conviction when 907 kinson, J., fresh.) dissenting concurring part facts were still present and the were therefore, conviction, McCurry, stand as final (citing should U.S. part) Allen engaged Migra in the crim- judgment that the offender Educ., represented the conviction: City inal Bd. conduct Warren School Dist. judgment validity 892, 898, (1984)), would 75, 84, question the L.Ed.2d 56 weight ignore require district court undermining principle judgment, thus convictions, undermin- finality for state comity and federal- ing important principles of holding suggests that tone of the court’s 20.The ism. used cannot be presumptively void convictions any purpose. of the context of Because requires courts to interpret question presented, I consid an offender's entertain holding presumptively simply that a properly of a eration raised, of- “counted” in the be void conviction cannot the Government’s need not address I History the Score. Criminal fender’s though they may strong be. Recent arguments, 517, standard is both "presumptively void” court's Raley, - U.S. -, 113 S.Ct. ly, in Parke The standard and overinclusive. Supreme ad underinclusive Court the 121 391 L.Ed.2d permit аn it does not Kentucky because underlying is underinclusive procedures a the dressed inqui- requires detailed factual objection which procedures per Kentucky’s statute. recidivist (such cannot be claim that a challenge validity ries as Gideon of a the an offender to mitted rec- of the proven examination from a facial placed of the burden void”) i.e.,- even "presumptively that is not court found that proof on the offender. The ord— though may the with be consistent the appealed his had never the offender because 1126 and reflection “reason Black noted collateral involved in adver- recognize that our based, us to require to a sentence 2255 28 U.S.C. §

under any person justice, system con- of sary uncounseled on part, least at hire poor to court, is too of Gideon who into in violation haled obtained victions 792, 9 trial un- 335, a fair 83 S.Ct. be assured cannot lawyer, U.S. Wainwright, 372 sentenc- U.S. the him.” 372 provided is 799 less L.Ed.2d the to articulate not- Black required not Justice at 796. 344, was ing court at sentence, Supreme Court the its basis ed: whether know could be, many would to be heard right The under- of the considered court had compre- if it did not avail cases, of little convic- fact of simply the or conduct lying by counsel. heard be right hend knew the Court All tion. layman and educated intelligent Even consideration specific “gave district no skill and sometimes small be- convictions previous respondent’s crime, charged with If of law. science him” and upon sentence imposing fore determining of generally, incapable, he is wholly un- were those of “two is indictment whether for himself Tucker, Gideon.” constitutional with He is unfamiliar or bad. good The Court 447, at U.S. the aid Left without of evidence. rules prоse- “that assume concluded without on trial may put he of counsel exactly the out have turned would cutions upon in- convicted charge, and proper had the had respondent if the same even irrele- evidence, or competent reject be to counsel, would of assistance inadmissi- otherwise issue or Gideon deci- vant to upon which reasoning 5,n. 92 S.Ct. at ble.... Id. based.” sion was Burgett, added);21 (emphasis 592 n. cf. at Pow- (quoting 345-46, Id. at (citation at 115, 88 S.Ct. at 389 U.S. 45, Alabama, 287 U.S. ell v. obtained a conviction omitted) (“[t]o permit Tucker, apply- (1932)). L.Ed. against used of [Gideon ] violation Burke, ing Townsend enhance or support guilt either person (1948), simply L.Ed. to erode offense is for another punishment reliable de- on emphasis Gideon’s extended (citation omit- case” of that principle sentencing con- guilt of terminations sentencing court ted)). Because text. into account taken inappropriately have Townsend, omitted); (citations convictions, the Court Tucker’s (precluding S.Ct. at sentence. versed “predicated sentences imposition with viewed language, Tucker*s misinformation”). pri- on the emphasis court’s Balda concurrence Marshall’s Justice although convictions, demonstrates Illinois, sar aas identify the Court (1980) (per cu- rea- imported Gideon’s factor, it relevant importation riam), reflects further unreliability of un- concerning the soning reliability into the principles Gideon, Justice Gideon’s convictions. counseled aware judge had ... been trial if the infra, advance discussed infirmity [offend- two mandate. Tucker’s constitutional convictions, circum- factual previous requires er’s] overinclusive standard background would respondent’s stances consideration to exclude sentencing courts dramatically different appeared in even have prior convictions void" "presumptively Instead sentencing proceeding. infirmity light un- at the does alleged constitutional legally been had confronting who as an a defendant reliability of dermine felonies, judge previous three conduct. convicted prior criminal indicator dealing a man been have then would who, unconsti- age beginning at had find that than ten more imprisoned for tutionally imposed a different court would years.... entered. not been had the 448, at 92 S.Ct. U.S. observed, Baldasar, plu- complex, In a cases are not sentencing context.22 uncounseled misde- Hamlin, Argersinger rality held meanor inherently convictions are not unre- 25, 2006, 32 L.Ed.2d 530 92 S.Ct. 2,100 liable. Id. at 233 n. S.Ct. at 1591 n. 2 Illinois, 367, and Scott ‍​‌​​​‌‌​​​‌‌‌​‌​​​‌​​​​​‌​​​‌​‌​​‌​​​​‌​​‌​​​​​​‍v. (1972), 440 U.S. (Powell, J., dissenting).23 Justice Powell (1979), 1158, prohib- 59 L.Ed.2d 383 99 S.Ct. argued also the offender’s “uncoun- misdemean- ited the use of an uncounselеd seled conviction conceded to be valid [was] trigger an Illinois enhance- or conviction to presumed and thus must be reliable.” Id. ment statute. “[d]efense [had] rebuttal, In Justice Marshall noted that in argued ... that because [the defendant] Argersinger, represented by lawyer at had not been emphasized the Court the need for the proceeding, the first the conviction was too assistance of counsel to assure reliability support enhancement of the unreliable to misdemeanor convictions: “We are Baldasar, second misdemeanor.” 446 U.S. legal no means convinced that and consti- 223, at 100 S.Ct. at 1585-86. his concur- questions tutional involved a case that rence, explained why Justice Marshall relia- actually imprisonment leads to even for a bility must be the relevant factor when period any complex brief less than deciding preclude whether person when a can be sent off for six prior using courts from “tainted” convic- months or more.” tions to enhance sentences. Id. at 227 n. 2, 100 S.Ct. at 1588 n. 2 sight underly- should not lose We (Marshall, J., concurring) (quoting Arger Argersinger, ing rationale of that unless singer, 33, 2010); U.S. at 92 S.Ct. at guiding accused has “the hand of see also id. at 47, 92 S.Ct. at 2017-18 every step proceedings counsel at (Powell, J., concurring). him,” against his conviction is not suffi- ciently support the severe reliable in Tucker reasoning The Court’s imprisonment. sanction of rely upon “presumptively void” charac- ter of the offender’s (citations conviction. Id. pre-Gideon omitted) (Marshall, J., concurring). simply held that un- Justice Powell, dissent, counseled attacked this assertion convictions could not be consid- by arguing that sentencing purposes.24 because most misdemeanor ered reliable for per opinion adopting specifically Baldosar was curiam 86 L.Ed. 1595 and which it Marshall’s, Stewart’s, reasoning overruled in Gideon. of Justices concurring opinions. Only and Blackmun’s two joined opinion. other Justices Justice Marshall’s Parke, presump- 24.After it is evident that the divergent Some circuits found that tively Burgett void nature of the convictions in concurrences in this case did not result in a (and, Tucker) therefore also in affected the bur- See, e.g., Eckford, for, rule-of-law. United States v. proof den of but not the constitutional (5th Cir.1990); of, 910 F.2d Schindler v. dimensions the offender’s claim: Court, Clerk Circuit F.2d Burgett that a convic- Court held [The ] Cir.1983), denied, 104 S.Ct. tion could not be used sentence enhance- (1984); pro- ment because the record of the earlier Robles-Sandoval, 693 n. 1 ceeding did not show that the defendant had Cir.), cert. right Respondent sug- waived his to counsel. Florida, 68 L.Ed.2d 330 Black v. cf. gests a state involved (“Baldasar (11th Cir.1991) ‘for proceeding, propo- recidivism it stands for the of a defendant to an bid[s] every previous sition conviction used to solely upon increased term of incarceration punishment "presumptively void” enhance consideration of a conviction obtained in right constitutional if waiver of claimed which, indigence proceeding due to the appear face of the record. does not from the State, the defendant or some misconduct of the broadly. We do read the decision so At ” counsel was unavailable to the defendant.’ the time the conviction at issue in Bur- Jarvis, (quoting Moore entered, gett was state criminal defendants’ (11th Cir.1989))). right to counsel had not federal yet recognized, and so it was reasonable argument “special 23. This resembles the circum- presume had not waived that the defendant providing approach right possess.... stances” counsel in state he did not -, proceedings developed (emphasis which the Court U.S. at at-, added); (relying Brady, after Betts v. id. cf. 1128 question do not model, objections that ‍​‌​​​‌‌​​​‌‌‌​‌​​​‌​​​​​‌​​​‌​‌​​‌​​​​‌​​‌​​​​​​‍lines’ holding is Tucker’s purposes

Yet, for our even prior reason- the occurrence importing by significant; still reliability of the undermine Gideon, Tucker they courts would precludes ing of See, e.g., United are irrelevant. evidence considering unreliable from v. United 1235 Lynch, Lewis See States sentences. fashioning — denied, -, 112 cert. U.S. States, Cir.1991), S.Ct. 100 U.S. Tucker (Burgett and (1992).26 L.Ed.2d L.Ed.2d subsequent conviction “found be- Amendment the Sixth violated sentence B. reliability of upon the depended cause conviction.”). past uncounseled under argues Roman mod- Guideline medical govern- Because Tucker, principle of general “our different convictions prior utilize els mandate Congress’ of lаws ment [and] were rele- objections all purposes, counting preclude the Commission” so be will model the medical under vant in an “constitutionally tainted” medical Under Guidelines. He History Score. Criminal offender’s the consideration model, objection an of whether irrespective claim makes label if the prevailed prior conviction infirmity alleged constitutional —here unreliable.25 shown “conviction” proven, plea guilty unconstitutional an —if Guidelines, the rele- Under goals undermine would prior is the inquiry vant and the Sentenc- Congress prescribed as the consideration An conduct. ing Commission. undermine must conviction aof their may vindicate offenders Because an indicator as the conviction reliability of through direct col- rights constitutional conduct, not the prior criminal not believe I do challenges, lateral the Guide- Thus, under conviction. panel sentencing. The consid- purposes of courts some state practice in on the historical exclusionary applies to rule ered whether in prohibited defendants "altogether sentencing proceedings: challenging from proceedings cidivism erroneous, opposed to void as an uncon- result of as the obtained Evidence jurisdiction."). lack unreliable; inherently is not search stitutional satisfy Tucker, in order at trial claims it is excluded Gideon ... rather with In line illegal pre- making searches. involved police from deter this standard. convictions, simply providing necessarily doc in irrelevant such evidence Nor is Gideon Thus, illegally excluding offender that the all umentary evidence the unre establishes the federal counsel the benefit would frustrate have evidence seized Parke, - codified, prior conviction. Act and liability part, in the of his policy, Yet, the medi at -, Guidelines, judges U.S. of whenever at issue to as- in order cal model facts reliable all relevant prior conviction challenge ato Gideon fender's an individu- receives defendant each sure that or not be established —whether could sentence. alized void”—but sen "presumptively Thus, omitted). permitting (footnote Id. chal to entertain refused admittedly use of an offender fashioned sen would lenge, obtained) unconstitutionally ev (though reliable prior con on unreliable tence based duct, federal directly conflicts idence right undermining constitutional thus (sentencing are "lim at policies. Id. Gideon, Burgett, 389 recognized in cf. informa that the requirement ited impor at more at reliable"). be considers the court tion that right process his due denying tantly, however, "apply might, exclusionary rule evidеnce, see reliable based to be sentenced sentencing proceedings the] [where at Townsend, solely to en unconstitutionally seized [was] be based (due requires that process n. Id. sentence." defendant's hance information); only on accurate Jessup, 966 F.2d 15; also Cir.1991), Lynch, U.S. -, — Cir.1992), denied, rt. ce U.S. -, Unit cf. (D.Colo. Gilmer, F.Supp. 578 ed States prohibited use 1993) circumstances (egregious Lynch illustrates presented in The claim sentencing). ignored of evidence can objection which

H29 proper forum hearings are the vindication of constitu- MOORE, for the wholesale Plaintiff-Appellant, Judith earlier criminal infringed an rights tional The focus proceeding.27 determine, based on must be to

hearings BAKER; Roy Neurological Institute of evidence, appropriate and indi- reliable Savannah, and Memorial P.C. Medical sentence. vidualized Center, Defendants-Appellees. No. 91-8944. III. Appeals, United States Court of presented ambiguous state Roman Eleventh Circuit. he record as the sole evidence that

court guilty plea. He knowingly enter a did not April engaged in the con- deny that he by the More- represented conviction. duct

over, he presented no other evidence: he corroborating testimony, and did no

offered testimony as to proffer

not even his own court, The district

the relevant events.28 hearing, it held a could not have deter-

had improperly

mined that the conviction was ‍​‌​​​‌‌​​​‌‌‌​‌​​​‌​​​​​‌​​​‌​‌​​‌​​​​‌​​‌​​​​​​‍fashioning by the court when

considered

his sentence. proper and a inter-

Under the Guidelines

pretation of challenge to

must consider a constitutional (1) underlying occurrence of the

denies the the constitutional

infirmity of the undermines

conviction. In this Roman’s burglary conviction failed on

to his counts.

both judgment

I therefore concur

court. challenge. prevail Lynch provides in his an illustration of a constitu- man could contrary, proffered testimony to a conviction that would tional had he sentencing purposes. false, See su- clearly be irrelevant Roman's had it been shown pra note 26. might have been increased the sen- obstructing justice. may be because the PSR that "Ro- notes (C) protect presentence detailed defendant; reviewing after crimes offi- probation by a (PSR) prepared port with needed defendant (D) provide entertaining the parties’ cer,11 and after training, medi- or vocational educational values, an Of- employ two however, 10. The Guidelines occasion, 404 such as 8. On Score, History I, judge Criminal a trial n. Level and fense n. 92 U.S. at 444 thought impor- and offend- quantify evidence he offense-based might point to the the relevant the sentence. reasons for Level indicate the The Offense tant and characteristics. er-based offense,” and the seriousness ”evaluate[s] determining need for in purposes For 9. just will receive the offender ”ensure[s] carceration, specified that Congress offend- and that the punishment his crime general deter punishment, goals, three first others deter adequately punishment will er’s deterrence, rence, could consid specific Scroggins, 880 committing his crime.” from Congress Scroggins, F.2d 880 ered. prohibited Level thus addresses Offense at 1208. The pur F.2d incarcerating offender for an general de- punishment and rehabilitation, Congress’ goals of the fourth poses of — History Dunnigan, acts Score Criminal goal. -, -, United States terrence. See 1111, 1118, determining 445 122 L.Ed.2d offend- predicate factual 994(k)). Rehabilita crimi- (1993) (citing § 28 U.S.C. and future of recidivism "likelihood er's intro, however, tion, plays in the Guide role behavior,” still A com- Pt. U.S.S.G. Ch. nal ment., process. goal specific lines’ Congress’ determinative serving thus rehabilitative to offer continue will [P]risons deterrence. offenders, will who programs for incarcerated advantage of them. hopefully take Guidelines, report presentence Under the permits the sen- Act Reform stipulation pre-trial purposes similar to a serves offender’s need tencing judge consider an report what identifies in a civil case. prescribing the condi- rehabilitation the Guidelines’ believes are probation officer supervised release. probation or tions case applicable to the offender's provisions (citing 10 18 at 1208 n. Scroggins, F.2d 880 and offender-based relevant offense-based the characteristics; Supp.1989)); 3563(b) (West &1985 § U.S.C.A. report also identifies Mogel, F.2d see also remaining (or issues guideline) and factual legal — U.S. -, denied, Cir.), (11th cert. court, litigated. The district (1992); 18 U.S.C. 121 L.Ed.2d report. bound 3562(a). underly- existence of reflect they the sentenc- report. At to that objections ing has the bur- criminal conduct. government hearing, ing demonstrating constitutes what den of presents government When the the Guidelines. appropriate shifts to of a burden his to show that overstates the offender B. 4A1.3. of recidivism. U.S.S.G. likelihood preclude was called consideration the district In this sen purpose third “shows focus on upon to The Sentenc specific deterrence. constitution- previously ruled to have been — comment, of concluded ing Commission 4A1.2 ally invalid.” U.S.S.G. § good indica history” is “criminal fender’s cases, may (n. 6). the government In such recidivism. or her likelihood of his tor likeli- attempt to establish Mogel, F.2d United through evidence hood of recidivism — U.S. -, denied, cert. Cir.), (11th Id. the conviction. underlying conduct (1992).12 Guidelines, “prior convic- Under are relevant: of evidence classes Two proxy for evidence acts as a tion” label prior convictions. conduct the conduct the convic- gave rise to Convictions 4A1.1-4A1.3.13 §§ “counted” in prior conviction is tion.14 because, the extent A and to relevant consid court from tal does not bar a initially eleven Congress identified offender- imposing ering acquitted sent conduct in characteristics: based Lynch, F.2d ence’...." (1) age; Cir.1991) (quoting United n. 8 education; (2) Rivera-Lopez, States v. skills; (3) vocational curiam)), Cir.1991) (per (4) condition to and emotional mental -, mitigates defen- that such condition extent Johnson, United States v. also such the extent that culpability or to dant's (11th Cir.1991) (permitting consideration relevant; plainly is otherwise condition conviction); leading to a conduct condition, including drug depen- (5) physical Thomas, States v. dence; cf. Cir.1991) (holding that courts record; employment previous conviction), cert. count of outside the conduct denied, responsibilities; (7) family ties and

Notes

28. This notes (2 increase obstruc- U.S.S.G. 3C1.1 level represented at the time of man was Dedeker, justice); tion of argue[d] plea and that he was made the fully [he] (11th Cir.1992). F.2d 164 felony implications aware of Here, unlikely it seems that Ro- conviction.”

Case Details

Case Name: United States v. Lazaro Roman

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 30, 1993

Citation: 989 F.2d 1117

Docket Number: 90-9084

Court Abbreviation: 11th Cir.