Free Statement - District Court of Colorado - Colorado

Case 1:04-cr-00032-REB

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Filed 03/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00032-REB UNITED STATES OF AMERICA, Plaintiff, v. ANTONE R. AUSTIN, Defendant. _____________________________________________________________________________ MEMORANDUM OF LAW _____________________________________________________________________________ Defendant Antone Raymond Austin, by and through his undersigned counsel, submits the following memorandum on the question raised by the Court on February 28, 2006.1 Question In the context of re-sentencing after remand, what does the term "prior sentence" mean? In determining criminal history under the Sentencing Guidelines after a remand for resentencing, may the court count only sentences imposed before the original sentence (i.e., the sentence that was vacated), or may it also count sentences imposed after the original sentencing? Facts The defendant was sentenced on September 15, 2004, to an 84 months sentence under the Sentencing Guidelines. His criminal history category was V, based on 10 criminal history points. See PSIR¶ 64.

As indicated at the February 28, 2006 hearing, counsel for the parties have conferred about the issue. They have differing positions, so each will file his own brief.

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At the time of the original sentencing, the defendant had three pending, unresolved, local, criminal cases. PSIR ¶¶ 58-62. The offense conduct in the first of these occurred in 2003, and, in the latter two, on same date the defendant was arrested on the charges in the federal case, January 13, 2004. While his sentencing appeal was pending, the defendant resolved the three pending cases. The first case was dismissed. On the second the defendant received a one year prison term. On the third, he received 90 days in jail. Addendum on Remand, January 24, 2006. These sentences were imposed on the same day, December 6, 2004, in the same courtroom in Colorado Springs and were ordered to run concurrently with the federal sentence. Id.2 On October 14, 2005, the Court of Appeals reversed the defendant's federal sentence and remanded his case for re-sentencing. At the re-sentencing hearing on February 28, 2006, the Court asked the parties to brief the question outlined above.

It is the defendant's position that the two interim sentences are "related" under Guideline §4A1.2 app. note 3. Thus, even if they can be counted for re-sentencing, it would not effect the defendant's Criminal History Category. This is because he would receive a total of two additional criminal history points for both cases, putting him at 12 points. This is still in Category V. The government disagrees with this position. See Government's Memorandum, page 3, note 1. It is the defendant's position that the Humphries case (United States v. Humphries, 429 F.3d 1275 (01th Cir. 2005)) cited by the government is inapposite. There the defendant's juvenile cases, that he claimed were related, were not consolidated by formal judicial action, but for convenience and judicial economy. In the defendant's case, he was arrested at the same time on both cases, January 13, 2004, and thereafter (following his original sentencing in the instant case) requested that he be brought to court on both. El Paso County ordered he be brought to court on both cases, set both cases at the same time on the same docket, and imposed concurrent sentences. 2

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Analysis There is a split of authority on whether a prior sentence, i.e., one that may be used in calculating the Guidelines at re-sentencing, includes sentences imposed after the original sentence. Federal Sentencing Guidelines Handbook, p. 1185 (2006 ed.). The most recent case on this issue is United States v. Ticchiarelli, 171 F.3d 24, 27 (1st Cir. 1999), where the court held, in the context of remand for resentencing, a "prior sentence " ­ i.e., a sentence that may be considered in determining criminal history ­ is a sentence imposed before the sentence that was vacated and remanded. The court based this conclusion on a combination of "the mandate rule, . . . statutes limiting resentencing, and . . . the distinction the law has long drawn between remands where a conviction has been vacated and remands where only a sentence has been vacated." 171 F.3d 35-36. In coming to this conclusion, the First Circuit specifically disagreed with an earlier decision of the 9th Circuit in United States v. Klump, 57 F.3d 801, 802-03 (1995), that allowed consideration at re-sentencing of a state sentence imposed after the original sentence. The only other case counsel has been able to find on this issue is United States v Bleike, 915 F.2d 692, a 1991 Fifth Circuit case, where the defendant appealed his 24 months sentence. This was at the low end of a 24 to 30 months Guideline range. The Fifth Circuit held that a state court conviction that postdated the imposition of the 24 months federal sentence but predated the sentencing after remand was properly included in the criminal history score. Unlike Klump or Ticchiarelli, the Bleike opinion does not analyze whether it was proper for the sentencing court to count the interim conviction at re-sentencing. Rather it turned on the fact that Bleike had failed to object to its use, meaning the sentence could be reversed only if the 3

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counting of the interim conviction constituted plain error. The Fifth Circuit found it was not and affirmed the sentence. 915 F.2d 221.3 Conclusion Counsel has been unable to find any post-Booker cases on the question presented. Reviewing the two cases that discuss the question in any depth, a split of authority appears regarding whether sentences imposed while a case is on appeal can be counted when the case is remanded for re-sentencing. The defendant, of course, agrees with the Ticchiarelli decision, and would object to the use of his interim convictions being used to increase his Criminal History Category at re-sentencing. However, given that even if the interim sentences were counted, it is the defendant's position he would remain in Criminal History Category V, and, therefore, the resolution of the issue either way should have no impact on the advisory guideline calculations. Respectfully submitted, RAYMOND P. MOORE Federal Public Defender

s/ Warren R. Williamson Warren R. Williamson Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 [email protected] Attorney for Defendant The court also noted that there was no plain error because "the 30 months' sentence was available in any event (upper end), had the district court not counted the state conviction as a prior conviction and therefore held the criminal history category at I." United States v. Bleike, 950 F.2d 214, 221 (5th Cir.1991). 4
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CERTIFICATE OF SERVICE I hereby certify that on March 17, 2006, I electronically filed the foregoing MEMORANDUM OF LAW with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Philip Brimmer, Assistant U.S. Attorney email: [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Caryl Ricca (Via email) U.S. Probation Officer

s/ Warren R. Williamson Warren R. Williamson Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 [email protected] Attorney for Defendant

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