Opinion
Criminal No. SA-03-CR-496(2)-XR.
September 17, 2004
ORDER
On this date the Court considered Defendant's Motion for Downward Departure and Defendant's Objections to the Presentence Investigation Report (PSI), as revised.
Defendant was charged in a two-count indictment with (1) unlawfully, knowingly and intentionally conspiring with his father on or about October 7, 2003, to distribute and possess with intent to distribute in excess of 100 kilograms and less than 1,000 kilograms of marijuana; and (2) aiding and abetting. On February 11, 2004, he pled guilty to Count One of the Indictment.
Objections to the PSI
1. Defendant objects to paragraph 17 of the PSI because he states he is entitled to a 4 level reduction because he was a minimal participant under USSG § 3B1.2(a). The PSI only gave a two level reduction (minor participant) under USSG § 3B1.2(b). Subsection (a) is "intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." Defendant was aware of the activities his father was engaged in. He has pled guilty here to knowingly and intentionally conspiring with his father to distributing and possessing marijuana. He was aware of the drugs in the trailer he transported, and he possessed one and one-half pounds of marijuana in his private residence. Defendant's objection is overruled.
2. Defendant objects to paragraphs 23, 31 and 47 of the PSI wherein Defendant is considered a career offender and chapter four enhancements are applied. As a result of the career offender designation, Defendant's criminal history is categorized as a VI, rather than a I. The adjusted offense level is enhanced from 24 to 34. After adjusting for acceptance of responsibility (-3), the net results become that rather than basing custody guideline provisions on I, 21 (37-46 months), a VI, 31 have been applied (188-235 months). Defendant argues that his three pending burglary of habitation charges are not criminal convictions.
Defendant has been charged in three indictments in state court alleging that he burglarized three different homes on March 11, 2002, April 1, 2002 and April 3, 2002. He was arrested by state authorities on May 14, 2002. He pled nolo contendere on all three indictments on July 28, 2003. Defendant was not immediately sentenced, and the state court entertained numerous continuances in those cases.
To be designated a career offender under USSG § 4B1.1(a), a defendant must have at least two prior felony convictions of either a crime of violence or a controlled substance offense. Defendant was convicted of an assault offense in February, 2002. Without inclusion of at least one of the above burglary offenses, however, the career offender designation would not be applicable.
As stated above, Defendant pled guilty to this federal drug offense on February 11, 2004. The PSI in this case was originally prepared on May 18, 2004. Thereafter, Defendant realized he would be considered a career offender. On July 12, 2004, Defendant moved for a continuance of his federal sentencing hearing. The motion was granted and sentencing was reset to July 27. On July 22, Defendant again moved for a continuance of his federal sentencing hearing. The motion was granted, and sentencing was reset to August 27. On August 17, Defendant again moved for a continuance of his federal sentencing hearing. The motion was granted and sentencing was reset to September 17. Unbeknownst to this Court, Defendant was meanwhile preparing a motion to withdraw his nolo pleas regarding the state court burglary charges in an attempt to avoid the PSI's characterization as a career offender. Defendant filed a motion to withdraw and/or vacate his nolo pleas on August 12. An order granting the motion to withdraw was signed by the state court on September 3, 2004.
Given the above, two questions must be analyzed. First, does Defendant's July 28, 2003 nolo plea suffice to establish the career offender designation? Secondly, if so, does the order granting the motion to withdraw the nolo plea affect the career offender designation?
Despite Defendant's objection that the July 28, 2003 nolo plea was not a conviction because the state court withheld adjudication and continued the case, the Court finds that the nolo plea was properly counted in the criminal history. Pursuant to USSG § 4B1.2(c), "the date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial or plea of nolo contendere." See also USSG § 4A1.2(a)(4).
Defendant's motion to withdraw or vacate his previous nolo pleas was an obvious attempt to avoid the career offender designation. Indeed, in his motion to the state court, counsel for Defendant was candid that his filing was done to "prevent the patent miscarriage of justice set to befall Mr. Gonzales under the Federal Sentencing Guidelines." The Court next turns to the second question. Does the state court order of September 3, 2004, vacating the previous nolo pleas affect the career offender designation? Although this Court was unable to locate any cases analyzing USSG § 4B1.1 and this maneuvering, a review of USSG § 4A1.2, Application Note 10 leads to the conclusion that the state court order setting aside the nolo pleas does not affect either the computation of Defendant's criminal history nor Defendant's career offender designation. Application Note 10 states convictions are counted if they are set aside "for reasons unrelated to innocence or errors of law. . . ." Further, under § 4A1.2(f) diversionary dispositions resulting from a plea of nolo are counted, even if a conviction is not formally entered. See e.g., U.S. v. Valdez-Valdez, 143 F. 3d 196 (5th Cir. 1998) (deferred adjudication was a prior sentence for purposes of computing criminal history) ; U.S. v. Amster, 193 F.3d 779 (3rd Cir. 1999) (analyzing 4A1.2(f), the court found that a diversionary disposition resulting from a plea of nolo contendere in a judicial proceeding, in which the charges were eventually dismissed is counted). Likewise, under § 4A1.2(l), sentences that are on appeal are counted. In short, the Sentencing Guidelines are constructed in such a manner that this creative defense tactic should fail. See U.S. v. Broomer, 71 Fed. Appx. 165, 168 (3rd Cir. 2003) ("[w]hen an otherwise qualifying prior conviction is unsentenced, courts considering the issue have held that it is proper to sentence a defendant as a career offender, whether under direct application of the career offender guideline or through an upward departure to the applicable sentencing guideline range."). Defendant's objections are overruled.
In the alternative, if the Defendant's burglary offenses should not be counted as convictions, the Court departs upward from the Guidelines and will sentence Defendant pursuant to § 5K2.0 as he would have been sentenced under the career offender section. U.S. v. Jones, 908 F.2d 365, 368 (8th Cir. 1990). In the alternative, the Court also concludes that the defendant's criminal history substantially under represents the seriousness of the Defendant's criminal history or the likelihood that the defendant will commit other crimes. USSG § 4A1.3(a)(1), (2)(D), and (4)(A).
Safety Valve Request
Defendant seeks relief under the "safety valve" provision of § 5C1.2. Defendant's request is denied. Defendant has more than 1 criminal history point, and has not truthfully provided to the Government all information and evidence the defendant has concerning this drug offense.
Motion for Downward Departure
Defendant seeks a downward departure based on his diminished capacity pursuant to § 5K2.13.
A sentence below the applicable guideline range may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants. . . .
"Significantly reduced mental capacity" means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
Defendant submitted to a competency exam in January 2004. He was found competent to stand trial. A history of mild mental retardation was reported in his history, but no diagnosis of such was made. He has completed at least the 8th grade, and was reportedly in special education classes. He receives or has received social security income benefits because of his condition. Despite the above history, it has not been established that he had a significantly impaired ability to understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or control behavior that the defendant knows is wrongful. Further, the court may not depart below the applicable guideline range if the significantly reduced mental capacity was caused by the voluntary use of drugs. Defendant was in possession of marijuana in his personal residence. Defendant's motion for downward departure is DENIED.