Free Brief - District Court of Colorado - Colorado

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00032-REB-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. ANTONE RAYMOND AUSTIN, Defendant.

GOVERNMENT'S MEMORANDUM OF LAW RE CONSIDERING POST-SENTENCING CRIMINAL HISTORY UPON REMAND

The United States of America, through Philip A. Brimmer, Assistant United States Attorney, submits the following memorandum of law in response to the Court's February 28, 2006 request for briefing on the issue of whether to consider defendant's December 6, 2004 convictions in two state cases in his criminal history score for purposes of re-sentencing: A. FACTS The Court originally sentenced the defendant on September 15, 2004 to 84 months BOP and three years supervised release. The Court determined that the defendant had a total offense level of 23 and a criminal history category of V. The defendant thereafter appealed his sentence in this case, filing his notice of appeal on September 23, 2004.

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 2 of 8

While the defendant's appeal was pending in the Tenth Circuit, the defendant pled guilty and was sentenced in two state cases. Both sentencings took place on December 6, 2004. In Case No. 03CR4986 in El Paso County, Colorado, the defendant pled guilty to Failure to Register as a Sex Offender and was sentenced to one year prison. See PSIR, Addendum on Remand, p. A-1. In Case No. 04CR206 in El Paso County, Colorado, the defendant pled guilty to Criminal Mischief and was sentenced to 90 days jail with credit for 330 days time served. Id. The sentences in both cases were run concurrently to this Court's sentence. Through an opinion filed on October 14, 2005, the Tenth Circuit Court of Appeals remanded his case for resentencing "in light of both Booker and Blakely." 426 F.3d 1266, 1281. Specifically, the Tenth Circuit stated that the case was remanded "for a determination under an advisory Sentencing Guidelines scheme as to the range and subsequent length of Mr. Austin's sentence in accordance with the Supreme Court's decision in Booker." On February 28, 2006, the Court asked the parties to brief the issue of whether the Court should take into consideration the defendant's December 6, 2004 convictions for purposes of conducting a post-Booker and Blakely sentencing hearing. B. THE EFFECT OF DECEMBER 2004 CONVICTIONS ON DEFENDANT'S CRIMINAL HISTORY CATEGORY

The Addendum on Remand at p. A-1 indicates that the defendant received a oneyear sentence in El Paso County Case No. 03CR4986. The defendant would normally 2

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 3 of 8

receive two criminal history points for such a sentence. USSG § 4A1.1(b). The Addendum indicates that the defendant received a 90-day jail sentence with 330 days credit for time served in El Paso County Case No. 04CR206. The defendant would normally receive at least two criminal history points for such a sentence. USSG § 4A1.1(b). Neither side objected to the Addendum on Remand. Thus, the defendant would have at least four additional points added to the 10 criminal history points calculated in the original pre-sentence investigation report (which did not include any points for these two pending cases), giving him a total of at least 14 criminal history points.1 If the defendant's two December 6, 2004 convictions are counted in his criminal history, the defendant would fall in Criminal History Category VI, instead of Criminal History Category V as found at the September 15, 2004 sentencing. C. THE SCOPE OF THE MANDATE In that section of its opinion concerning Booker, the Tenth Circuit stated that this case was remanded "for a determination under an advisory Sentencing Guidelines scheme as to the range and subsequent length of Mr. Austin's sentence in accordance with the

There is no evidence before the Court that these two cases were formally consolidated prior to sentencing. See United States v. Humphries, 429 F.3d 1275, 1278 (10 th Cir. 2005) (simultaneous sentencing does not necessarily indicate consolidation under USSG § 4A1.2(a)(2)). See also United States v. Villareal, 960 F.2d 117, 119 (10 th Cir. 1992). The defendant has the burden to show that the two cases were consolidated for purposes of USSG § 4A1.2(a)(2), United States v. Alberty, 40 F.3d 1132, 1134 (10 th Cir. 1994), which he has failed to meet. Thus, these two cases are not "related," and USSG § 4A1.2(a)(2) and Note 3 do not apply. 3

1

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 4 of 8

Supreme Court's decision in Booker." This language, on its face, does not answer the question of whether to count criminal history subsequent to the original sentencing. In other words, this language does not explicitly state whether the scope of the Booker remand is narrow (i.e. limited to the facts known on September 15, 2004, the date of the original sentencing) or broad (i.e. de novo, based on facts now known). See United States v. Norris, 277 F. Supp. 2d 189, 193 (E.D.N.Y. 2003) (discussing limited v. de novo mandate distinction). In the context of a Booker remand, however, it is appropriate to apply a broad scope to the mandate. The entirety of sentencing factors under both the guidelines and 18 U.S.C. § 3553 are implicated upon a Booker remand, making the inference of a limited scope of remand unreasonable. D. PRE-BOOKER CASE LAW Before the Supreme Court's decision in Booker, two courts of appeal addressed the issue of whether a conviction occurring after the date of a defendant's original sentence should be considered upon resentencing. In United States v. Klump, 57 F.3d 801 (9 th Cir. 1995), the court affirmed the district court's enhancement of a defendant's sentence on remand based on a state plea to conspiracy to commit murder that was entered after the date of the original sentencing. The court held that the "court's remand was general, not limited." Id. at 803. Moreover, it noted that the conspiracy preceded by six months the original sentencing. Id. The court therefore held that it was proper to take into account at

4

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 5 of 8

resentencing "any evidence relevant to sentencing." Id., citing United States v. Caterino, 29 F.3d 1390, 1394 (9 th Cir. 1994). The court in United States v. Ticchiarelli, 171 F.3d 24 (1 st Cir. 1999), took a different approach. There the defendant's original sentence occurred in the District of Maine in November 1996. Id. at 33. This conviction was vacated in October 1997. In November 1997, the defendant was convicted and sentenced in a Florida court. Upon resentencing in the District of Maine, the court counted the Florida sentence as a prior sentence under USSG § 4A1.2(a)(1) and added three criminal history points to his criminal history score. The First Circuit reversed, holding that "the most sensible reading is that the guidelines' reference to `prior sentence' means, in this context, a sentence which is prior to the original sentence which was vacated and remanded only for resentencing." Id. at 35. The rationale for the First Circuit's decision, however, is not necessarily applicable in the context of a Booker remand since the First Circuit rule was to presume a narrow mandate. E. RECOMMENDATION The issue that the Court asked the parties to brief is a close question of law involving a Circuit split. The government believes that the Court should recalculate the guideline range to take into account the subsequent convictions. The Booker remand in this case was broad, not limited. The Tenth Circuit directed the Court to calculate the

5

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 6 of 8

"range and subsequent length" of the defendant's sentence rather than simply to correct a discrete error. Moreover, there are no equitable reasons that suggest such otherwise. On first blush, it appears that there may be policy reasons not to count such convictions. For example, the judicial system may want to encourage defendants to dispose of their pending cases. The defendant here, however, postponed the disposition of both cases in order for the convictions not to enhance his federal criminal history score. See PSIR, ¶¶ 60, 62 (noting that both cases were, at the time, "Pending ­ to trail federal case"). If it is good policy not to punish a defendant for disposing of his or her pending cases, it would be counterproductive to reward a defendant for postponing the disposition of cases, particularly if the result of doing so affected the original federal sentence. Under this view, Mr. Austin still gets the benefit of his successful appellate argument, namely, the inapplicability of mandatory guideline provisions. But he should not also get the benefit of an advisory guideline range that does not reflect his true criminal history. Despite the government's recommendation that the Court recalculate the advisory guideline range by finding that the defendant falls in Criminal History Category VI, the government nevertheless affirms what it told the Court at the beginning of the February 28, 2006 sentencing hearing ­ that the government is seeking the same sentence that the Court sentenced the defendant to in September 2004, i.e. an 84 month sentence.

6

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 7 of 8

Respectfully submitted, WILLIAM J. LEONE United States Attorney

by: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 FAX: (303) 454-0403 E-mail: [email protected] Attorney for Government

7

Case 1:04-cr-00032-REB

Document 52

Filed 03/20/2006

Page 8 of 8

CERTIFICATE OF SERVICE I hereby certify that on this 20th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S MEMORANDUM OF LAW RE CONSIDERING POST-SENTENCING CRIMINAL HISTORY UPON REMAND with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address(es): John Andrew Chanin [email protected] [email protected] and I hereby certify that I have served the document or paper to the following nonCM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Warren Williamson Office of the Federal Public Defender Caryl Ricca U.S. Probation Department Fax: (303) 294-1192

Court Mail

s/ Philip A. Brimmer Philip A. Brimmer U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100 Fax: 303-454-0403 E-mail address: [email protected]

8