United States v. Norman L. Haymer

findings rеquired manded for fact find that additional this sufficient consider- reflects by required New York law.11 ation of the factors York under New fact, bankruptcy ap- law. the court’s law, Under New York when a contract proach ap- mirrors the “lodestar” method fees, provides attorney’s “the court will proved in reasonably Krear —“the hours losing .party order the whatever counsel, spent by by as determined the еxpended by prevail- amounts been the Court, multiplied by [are] the reasonable ing party, so as those' amounts are not hourly rate.”14 The determination that unreasonable.”12 The court’s determination $6,125 attorney’s is a reasonable fee was not requested whether the fees are reasonable is clearly erroneous. factors, by including: informed various “the reasons, foregoing For the we AFFIRM involvеd; difficulty questions the skill nondischargeability, the determination of required problem; handle the time regarding attorney’s REVERSE order lawyer’s required; experience, and labor fees, bankruptcy and REINSTATE the ability reputation; customary fee attorney’s court’s award of fees charged by services; the Bar for similar $6,125. amount of the amount involved.”13 attorneys National Union’s estimated their $30,000.

expenses They presented be evi- types

dence of the time and various work

performed litigation, in this as well as evi- general experience.

dence about their level of

Thereafter, bankruptcy court made the

following findings: taking extremely I’m conservative America, UNITED STATES of attorneys’

view of the might fees which Plaintiff-Appellee, appropriate in this case. Noting spent the amount of time HAYMER, regard participation Norman L. this trial Defendant- Appellant.

will clock in at a minimum of about ten hours, including activity yesterday and No. 92-7585. today. granting twenty-five And hours for preparation, low, which I believe to be Appeals, United States Court of considering extremely high degree of Fifth Circuit. preparation by the plaintiffs exhibited June 1993. case, again taking this a conservative view. conservatively allowing per

And $175 attorneys’

hour. I am familiar with rates region field, bankruptcy this and in the

and believe that to be a reasonable if hourly

somewhat low fee to be awarded for degree ‍‌‌‌​​‌‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌‌​​​​​‌‌​​‌‌‍of competence, which was high,

exhibited plaintiffs counsel in this case. yiеlds $6,125.

This a total amount indemnity Schaich, agreement provided (quoting 11. The Id. In re 55 A.D.2d (2d Dept.), appeal rights N.Y.S.2d parties and liabilities of the thereunder N.Y.2d 397 N.Y.S.2d 366 N.E.2d 293 were to be determined under New York law. (1977)). Trustees, 12. F.H. Krear & Co. v. Nineteen Named Barcellona, (quoting Zauderer v. (2d Cir.1987). (Civ.Ct. Misc.2d 495 N.Y.S.2d 882-83 1985)).

BARKSDALE, Judge: Circuit sentence, Norman appeals L. contending that his Sixth Amendment by counsel was violated the inclusion of an uncounseled misdemeanor cоnviction in cal- culating his Sentencing Guidelines criminal history score. We AFFIRM.

I. Haymer pleaded guilty possession with base, the intent to distribute cocaine in viola- 841(a)(1). presen- tion 21 U.S.C. In the (PSR), investigation tence report proba- tion guideline range officer recommended a imprisonment, of 51 to 63 upon months based an offense level of 22 and a history category of III. The criminal history score 2 points included for committing the instant probation, point offense while on for a 1987 conviction, point and 1 shoplifting a 1991 subject conviction. The latter is the of this appeal. The PSR described the circum- stances of that conviction as follows: Department Records of the Jackson Police indicate May was arrested on charged shoplifting.... 1991 and with plea guilty defendant entered a charge Municipаl in Jackson Court and plus ordered to a fine of $300 13, 1991, Hay- court costs. On November mer was arrested the Jackson Police Department chárged and court for Disposition and court costs. of the con- tempt charge has not been received writing, according this defen- dant, perform days of work at County the Hinds Penal Farm in lieu of Stuart, (court-appoint- Scott Jackson MS paying the fine and court сosts. ed), defendant-appellant. Athough objections he did not file written Alen, Billups Atty., George S. Asst. U.S. PSR, objected, at the sentenc- Jackson, MS, Phillips, Atty., plain- ing hearing, to the inclusion of the tiff-appellee. score, history conviction in his criminal on ground represented by that he was not had served 18 to 19 Exclusion of that conviction would have low- score, resulting ered his criminal in a POLITZ, Judge, guideline range Before Chief of 46 to REAVLEY instead of 51 to BARKSDALE, Judges. Circuit months. hearing testimony, After the district court convictions for which no imprison original shoplift- found that the sentence for valid, ment is are fine, ing consisted and that may be introduced into pun evidence at the mer’s incarceration resulted either from con- phase ishment of a trial for tempt of court for failure to offense, may be used to calculate a de Haymer’s from decision to substitute incar- fendant’s Guidelines criminal history score. paying ceration in lieu of it. It also found 220-21; Eckford, 910 F.2d at Wilson v. Es Haymer, attorney an who ‍‌‌‌​​‌‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌‌​​​​​‌‌​​‌‌‍was Louisi- telle, 1158, (5th 625 F.2d 1159 Cir. Unit A 1976-1986, but was ana from disbarred in 1980), 912, cert. 451 U.S. 101 S.Ct. 1990, shop- acted as his own counsel on the 1985, (1981). 68 L.Ed.2d 302 lifting charge. was sentenced 51 Haymer seeks shelter under Baldasar v. imprisonment five-year months and a term of Illinois, 446 U.S. 64 supervised pay release and ordered to a $50 (1980); L.Ed.2d 169 but our court has re $1,000 special assessment fine. peatedly interpreted prohib that case

II. prior it the use of a uncounseled misdemean- or conviction “under an penalty enhanced Haymer’s sole contention is that his statute to convert a misdemeanor law, imposed sentence was in violation of or felony into a with a term.” Wilson v. application as a result of an incorrect Estelle, 1; 625 F.2d at 1159 n. see also Eck Guidelines, because the uncounseled misde ford, 910 F.2d at 220. we have meanor conviction was included in the calcu repeatedly held that pro Baldasar does not history lation of his criminal score. hibit the use of an uncounseled misdemeanor uphold “will a sentence unless it was conviction to history determine a criminal law; imposed in violation of as a category fоr a felony. crime that is a itself application of an result incorrect of the sen- Follin, 979 F.2d at 376 & n. 8. Needless to tencing guidelines; range or outside the say, possession with the intent to distribute applicable sentencing guideline and is therefore, crack felony; cocaine is a Balda Howard, unreasonable.” United States v. inapplicable. sar is (5th 195,199 Cir.1993). 991 F.2d “[W]hether prior conviction is covered under the sen- cases, Consistent with these the Guidelines tencing guidelines novo, ... de reviewed provide that “uncounseled misdemeanor sen- concerning prior while factual matters imprisonment tences where was not im- conviction are reviewed for clear error.” Id. posed” are to be in calculating included history 4A1.2, criminal § score. U.S.S.G. Illinois, In Scott v. 440 U.S. 99 comment, (backg’d) commentary (1979), S.Ct. 59 L.Ed.2d 383 the Su to that provides seсtion that “[a] preme indigent Court held that an specifies which a fine or other non-incarcera- may defendant not “be sentenced to a term tive as an alternative to a term of imprisonment” government unless the imprisonment is treated as non-impris- has afforded him the to assistance of 4A1.2, § onment sentence.” U.S.S.G. com- guaranteed by the Sixth Amendment. (n. 4). Application ment. 373, 374, § note 6 to 4A1.2 Id. at 99 S.Ct. at (emphasis added). resulting states that “sentences from Absent a valid convic- waiver of this tions that a defendant shows to right, have been “[i]f uneounseled defendant is sen previously constitutionally ruled prison, invalid are tenced the conviction itself is un not to computing be counted” in Eckford, constitutional.” United States a defen- (5th Cir.1990) dant’s criminal 910 F.2d score. U.S.S.G. comment, 4A1.2, (n. 6) (1991). added); Follín, Application United States v. 979 F.2d But, court, note 6 the Sixth “allоws district in its discre- tion, require inquire Amendment does not validity States to into the provide counsel in criminal sentencing hearings.” cases which the convictions at United Canales, (5th imprisonment. defendant is not sentenced to States v. Cir.1992). Accordingly, uncounseled misdemeanor Haymer presented no evidence that his Mr. charged shoplifting. (cid:127) shoplifting previously conviction had been He was convicted and fined Thеre $300. invalid, imprisonment imposed, ruled instead was no term of no collaterally sentencing. sought suspended, nothing. attack it at term He failed to court, They in the the fine. exercise its dis- issued a bench warrant for cretion, challenge, entertained the but found fine. Ac- Haymer’s cording Haymer, sentence for to Mr. do fine, perform days sisted his incarcera- of work at the penal farm paying tion resulted eithеr from instead of opinion court fine. our appears to us that it not a for failure to or from mandato- n ry imprisonment decision substitute incarceration lieu of as a paying findings, option it. on those result of the conviction. It Based the dis- was án part. point trict court held that the conviction was not taken on his And I will out to constitutionally invalid. Our task is to deter- Your Honor that I believe Mr. Haymer mine the is—he attоrney. dealing whether district court’s factual find- is an not We’re ignorant ings, regarding the with someone who is of the circumstances of law or rights. his mer’s conviction and incarceration, clearly are erroneous. THE COURT: The term came— the time that was set forth in the sentence testimony sentencing hearing, In his at the contempt— came as a result of a Haymer ‍‌‌‌​​‌‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌‌​​​​​‌‌​​‌‌‍described the circumstances of his [PROBATION That’s cor- OFFICER]: shоplifting conviction as follows: rect. I and I I was arrested made bond. went THE COURT: —rather than the crime working. to At the time I back court. was itself. they stealing pack ... So accused me of cigarettes. judge I I So told the didn’t. [PROBATION OFFICER]: That’s cor- I I was his chamber. wasn’t rect. thought court.... I it be a would low responded Haymer’s Defense counsel accept or whatever. But he told me he’d incarceration was “a direct rеsult of the guilty plea give

the me a fíne. I crime itself. What Mr. did was $50, thought probably the fine would be work off this fine.” know, you pack cigarettes; for a and he The district court then asked the probation 300-and-something fined me dollars. I any officer if showing she had documentation money, eventually they didn’t have the so jail contempt that the time resulted from the jail sent me to to it off. work charge, rather than the initial sentence for shoplifting. responded She that she did not I advised that I had a wasn’t contempt have documentation as to the lawyer at the time or I would have chose charge, the of the because records Jackson lawyer, if I have knew that “awful”, municipal “[t]he court were but that particular thing come back and haunt could contempt as to the the 18 got me at a later date. Or if I could have days days penal or 19 on the farm came jail you some time. I know I didn’t straight Haymer.” from Mr. She testified was— know, going because he told me it was that she did have documentation as to the a fine. original imposed, which a fine sentence was (That only. documentation was not intro- counsel, relying Defense on Baldosar and hearing, duced into evidence at the and is not that, argued because had reсord.) part 18 or 19 “as a result of served the pay,” conviction and failure convic- Haymer then testified: unconstitutional, and tion was could not be the time I I was or- [A]t was sentenced used to calculate the criminal score. pay judge If I had dered told $342. questioned probation pay, I did not $342 The court then at that time have officer, have me to I told who testified as would sentenced follows: $342, history scоre. criminal subse if I could raise which I would see

him quently because he failed or weeks or about a week two incarcerated gave me Regardless up pay come the fine. whether I couldn’t whatever. on a penal was based farm because incarceration I went money. $342, charge fine of not because to serve time lieu or his choice pay couldn’t I I shop didn’t but becausе not invalidate his was in it does I pay. conviction, I money Even after lifting for which the arrested, they if asked I could the constitution a fine. stress that out, $200, they you any subsequent contempt charge let me re ality would issue, know, I told get I could balance. be sulting until in incarceration is at money. Therefore have that calculate didn’t cause it not used to them volun- they sent me to—and wasn’t history score.* I— mandatory gоI tary. It was I couldn’t it. it. off since work III. testimony, conflicting on this Based reasons, foregoing the sentence is For the court found: AFFIRMED. original one that re- sentence was [T]he him to a fine and his subse- quired POLITZ, Judge, dissenting: Chief a result of incarceration came as quent majority suggests Haymer went that The pay the and there- his failure to either for penal farm of his own accord or to a or some other his arrest forе failure to a result of his to wherein he decided substitute situation speculation proba- Apart fine. from the paying the fine that was in lieu of time officer, I no evidence in the record tion find upon him. event, and, perceive con- either no of clearly err in court did not district The conclusions, significance in those ab- trolling shoplift- that finding ultimately punishment that the sent evidence finding That only of a fine. ing cоnsisted of the conviction independent assessed was testimony on the uncontradicted based

was respectfully Accordingly, I now we review. officer, Haymer does probation of the dissent. Instead, Haymer challenge it. contends not provides: all amendment “In The sixth that, incarcerated for failure because he was the accused shall have prosecutions, sentenced for the fine to which he was to pay of right to have Assistance Coun- shoplifting is his conviction for shoplifting, important That is an sel for his defence.” disagree. The constitutionally invalid. We Indeed, right. Supreme Court has Haymer’s incarcera- found that district court aspect recognized a fundamental of that is shoplifting con- not result from his did tion trial, strongly impli- the denial of which a fair viction, contempt charge for fail- but from a рro- reliability fact-finding cates the pay the or because ure imperative applies constitutional cess.1 This it. The evidence paying time in lieu of serve process through the due clause to the states hearing amply supports sentencing at the the fourteenth amendment.2 clearly erroneous. finding; it is not that pretermits review majority prudently to a not “sentenced Because ” that of the district court’s conclusion shoplifting, his imprisonment represented himself not waived counsel conviction is unconstitution uncounseled is no prosecution. There evidence S.Ct. at 1162 his 1991 440 U.S. at al. added). is no evidence that there Accordingly, the convic of either. County Penal to the Hinds calculating Haymer was sent included in his properly tion * Collins, 1. Smith v. unnecessary for us to address the It is that, finding alternative becausе court's practiced ten attorney had law for who was an Wainwright, 2. Gideon right to had the years, he "knew full well 792, 9 L.Ed.2d 799 "represented himself”. counsel" and indigent defendant had been of- from his theft unless for conduct discrete Farm appointed only thing the rec- fered counsel.”5 cigarettes. The pack of stealing Haymer admitted shows is that ord Any doubt about whether Court store, grocery from a pack cigarettеs potential pun- concerned with the actual and, pay a fine guilty, was unable to pled put rest in ishment Scott v. completely inadequate state according to the Illinois.6 There the Court held that an indi- records, way to the somehow found his court gent misdemeanant could not obtain relief days. county penal for 18 or 19 farm which,' from an uncounseled conviction al- have, though ultimately re- is not whether a it could did not before us question sult in incarceration. The Court was is careful uncounseled misdemeanor conviction valid pur- preserve Argersinger being invalid rule and summa- used for a previous holding as prior interpretations of the Su- rized its follows: pose. Our “The Court in its opinion [Argersinger opinion’repeatedly ] in Baldasar preme plurality Court’s accused challenge limit to cases referred to trials where an' is de- v. Illinois3 being prived liberty case subsequent conviction is en- his and to a that leads which a felony. imprisonment period.”7 brief to a even for a hanced from a misdemeanor whether, Thus, Rather, indigent if an defendant has been question us is before light punishment victed without the assistance of counsel and imposed, same,’ without,expressly waiving right itself valid. conviction is punishment.8 incarceration not an available Supreme Argersinger v. Hamlin4 the Sending Haymer because he could rejected argument petty of- Court -providing him afford the. fine without first insignifi- misdemeanors are too fenses and Arger- counsel violated the rule announced in appointment of counsel for cant to warrant and, moreover, singer also violated the due Distinguishing ap- indigents. process guarantee9 controlling state right to trial pointed counsel from law.10 bright-line rule jury, the Court established- a suggest during or ultimately imposed, I do not after the punishment based on the the defendant is or concluding “that incarceration was so severe of the case punishment be immune from for eon- sanction that it should not be should 222, 1585, example accused in traffic 64 L.Ed.2d 169 and noted that the 3. 446 U.S. 100 S.Ct. (1980). possibility jail court in that state faced the scenarios, ‍‌‌‌​​‌‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌‌​​​​​‌‌​​‌‌‍including cases in which time in three 25, 2006, individual was unable to "the convicted 92 S.Ct. 32 L.Ed.2d 530 4. 407 U.S. 10, imposed." Id. at 38 n. 92 S.Ct. at 2013 (1972). fine Junker, (citing Right The to Counsel n. 10 Cases, 685, 43 Wash.L.Rev. 711 367, 1158, Misdemeanor Illinois, 59 5. Scott v. 440 U.S. 99 S.Ct. Withworth, (1968)). Wang also v. 811 F.2d See (1979) holding (paraphrasing the L.Ed.2d 383 1051, 952, (6th Cir.), 956 cert. 481 U.S. Argersinger). (1987); 2185, Sweeten 107 S.Ct. 95 L.Ed.2d 842 Sneddon, 713, (10th Cir.1972); v. 716 1158, 59 L.Ed.2d 383 6. 440 U.S. 99 S.Ct. (D.Me.1986), Joyce, F.Supp. 646 102 Colson v. Eckford, See also United States v. 910 (1st Cir.1987); aff'd, v. F.2d 29 United States 816 (5th 1990) ("If an F.2d 218 Cir. uncounseled Ramirez, (E.D.Cal.1983); F.Supp. Lin 555 736 prison, sentenced to the conviction defendant is (W.D.Va.1975). Jordan, F.Supp. 1175 kous v. unconstitutionаl.”). itself is Georgia, 9. Bearden v. 461 U.S. (quota- 440 U.S. at 99 S.Ct. at 1162 (1983) (state may not con- omitted). 76 L.Ed.2d tions finding that defen- vert fine to term absent bona fide effort to dant has not made jail judge preserve option die 8. "The can punishment could serve the or that no alternative by offering defen- interests). state’s on his own." Ar- dant unable to retain counsel (Burg- gersinger, 407 U.S. at 92 S.Ct. at 2014 99-19-20(2); er, C.J., Cassibry concurring). Ann. v. that traf- 10. Miss.Code Court noted (Miss.1984) ("So State, typically require сounsel. 453 So.2d fic offenses do not ‘financially Cassibry prosecutions only require appointed unable to Such would finds,- may actually not be "imprisonment occurs." fine’ and the trial court so counsel where original). study Washington imprisoned, period.") pointed as an The court to a tempt.11 suggest, however, I do that when reviewing validity underlying America, STATES of UNITED

viction we should ask whether there is a Plaintiff-Appellee, meaningful punish- difference between the contempt punishment ment for for the

offense. Alejos GARCIA, Defendant-Appellant. majority record, assumes from a silent No. 92-5623 court, as did the district must Summary Calendar. jail been sent for contempt as a to pay result the fíne. The United Appeals States Court of gives no record indication whatever that this , Fifth Circuit. punishment assumed for was dis- punishment from his tinct for stealing ciga- June Indeed, government rettes.13 suggested contempt charge really a vehicle converting the form of punish- ment in inability pay.14 view his Under circumstances,

these characterizing the sub- jail

sequent time as a result of underlying

rather than the conviction ele-

vates form over substance.

Ultimately, Haymer’s punishment

stealing cigarettes, and apparently being impoverished

too imposed, afford 18 or hard labor. The conviction

is invalid absent some indication either ‍‌‌‌​​‌‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​‌‌​​​​​‌‌​​‌‌‍that waived the to counsel before that

punishment or that time for conduct other giving than that rise to underlying conviction. would not allow

the same conviction lead to another five

months of incarceration. respectfully DISSENT. course, prosecution hopes 11. Of if рunish Again, support the record does not such incarceration, contempt with that then it must finding. majority apparently assumes provide Baker, point. Ridgway counsel at that v. simply time was substituted for the fine F.2d The existence of punishment. according acuity counsel varies jeopardy. Mempa defendant’s Rhay, evidence, example, There is no 128, 134, 254, 256, 19 L.Ed.2d disrespectful mer was brazenly court or (1967). Sentencing аmong is those critical despite being refused to the able finan- stages during of trial presence which counsel's is cially to do so. The evidence indicates to the constitutionally required. when a contrary; impecunious simply and could is quantum converted to a term leap not afford it. severity is affected availability and counsel’s imperative. Argersinger. See course, 14. Of this also would be unconstitutional. true, If expect this were then one would Bearden. discharged fine would after his time in

Case Details

Case Name: United States v. Norman L. Haymer

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 30, 1993

Citation: 995 F.2d 550

Docket Number: 92-7585

Court Abbreviation: 5th Cir.