Title United States v. Davis
Date 1991
By Alito
Subject Criminal Law
Contents
Page 1
LEXSEE 929 F.2D 930
UNITED STATES OF AMERICA, Appellee v. ANTONIO DAVIS, Appellant
No. 90-1755
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
929 F.2d 930; 1991 U.S. App. LEXIS 5172
February 26, 1991, Argued
April 2, 1991, Filed
PRIOR HISTORY: **1 On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal No. 90-00103--01.
DISPOSITION:
Sentence Vacated, Case Remanded.
LexisNexis(R) Headnotes
COUNSEL:
Mary E. Crawley, Esq. (Argued), Office of United States Attorney, Philadelphia, Pennsylvania, Attorney for Appellee.
Bradley Bridge, Esq. (Argued), Defender Association of Philadelphia, Philadelphia, Pennsylvania, Attorney for Appellant.
JUDGES:
Stapleton, Alito and Seitz, Circuit Judges.
OPINIONBY:
ALITO
OPINION:
*931
ALITO, Circuit Judge
Antonio Davis appeals from a final judgment of sen- tence and challenges the sentence imposed under the Federal Sentencing Guidelines. Based on concessions made by the United States at oral argument, we will vacate the sentence imposed by the district court and remand for further proceedings.
I.
Davis was indicted in March 1990 in the Eastern
District of Pennsylvania for two counts of distribution
of cocaine, 21 U.S.C. § 841(a)(1), and one count of pos- session of cocaine with intent to distribute, 21 U.S.C. §
841(a)(1). Davis pled guilty to the two distribution counts under a plea agreement calling for dismissal of the pos- session count.
Davis's presentence report calculated his total offense level as 30, a calculation that Davis does not contest on ap- peal. The presentence report **2 concluded that Davis should be awarded eight criminal history points and that his criminal history category should accordingly be cat- egory IV. This computation was based on the following three juvenile adjudications in 1987 and 1988. First, ac- cording to the presentence report, Davis was charged on February 20, 1987, in Philadelphia Family Court with theft of an automobile, receiving stolen goods, conspiracy, and criminal mischief. On July 13, 1987, the presentence report states, Davis was sentenced by Judge Summers to an indeterminate term of custody at the Glen Mills School for Juveniles.
Second, according to the presentence report, Davis was charged on March 3, 1987, with theft of an automo- bile, receiving stolen property, and conspiracy. The re- port states that following the transfer of this *932 case from Montgomery County, Pennsylvania, where Davis was arrested, to the Philadelphia Family Court, Davis was sentenced on March 14, 1988, by Judge O'Neill to an indeterminate term at the Glen Mills School.
Finally, according to the report, Davis was charged, on April 22, 1987, in Philadelphia Family Court with possession and sale of dangerous drugs and conspiracy. The report states that Davis **3 was sentenced on July
28, 1987, by Judge Reynolds to an indeterminate term at the Glen Mills School. The presentence report states that Davis was discharged from the Glen Mills School on August 15, 1988.
For each of these juvenile adjudications, the presen- tence report assigned two criminal history points, citing Section 4A1.2(d)(2) of the Guidelines, which provides
929 F.2d 930, *932; 1991 U.S. App. LEXIS 5172, **3
Page 2
for the addition of two points "for each adult or juvenile sentence to confinement of at least 60 days if the de- fendant was released from such confinement within five years of his commencement of the instant offense." The presentence report also assigned two additional points under Section 4A1.1(e) on the ground that Davis had committed the instant offenses less than two years after his release from imprisonment for the offenses previously noted. Based upon an offense level of 30 and a criminal history category of IV, the presentence report calculated the Guideline range to be 135 to 168 months of imprison- ment. The district court accepted this calculation, denied Davis's request for a downward departure, and imposed the minimum sentence within the guideline range, 135 months. This appeal followed.
II.
We first consider Davis's **4 argument that the district court erred in assigning two criminal history points for each of his juvenile adjudications under Section
4A1.2(d)(2)(A), which applies only to "adult or juvenile sentence s to confinement of at least sixty days." Davis contends that this section pertains only to determinate sentences and that therefore his indeterminate sentences should not have been counted. We disagree with this in- terpretation.
Section 4A1.2(d)(2)(A) must be read together with other closely related provisions that assign criminal his- tory points based on the length of the sentence for a prior conviction. Under Section 4A1.1(a) and (b), which apply to offenses committed by someone age 18 or older, three points are assigned for each "sentence of imprisonment" for more than one year and one month, and two points are assigned for each "sentence of imprisonment" of at least 60 days. Similarly, under Section 4A1.2(d)(1) and
(2), which apply to offenses committed prior to age 18, three points are assigned for an adult "sentence of im- prisonment" for more than one year and one month, and two points may be assigned for each "adult or juvenile sentence to confinement" of at least 60 days.
While all **5 of these provisions are cast in the same basic pattern, they contain slight differences in ter- minology. On the one hand, Section 4A1.1(a) and (b) and Section 4A1.2(d)(1) use the phrase "sentence of im- prisonment," which is defined by Section 4A1.2(b)(1) to mean "the maximum sentence imposed." See also Section
4A1.2, application note 2 ("Criminal History points are based on the sentence pronounced, not the length of time actually served.") The slightly different term employed in Section 4A1.2(d)(2) -- "sentence to confinement" -- is not defined, but we conclude, based upon the close rela- tionship between Section 4A1.2(d)(2) and the other pro- visions noted above, that the same definition was meant
to apply.
As previously noted, Section 4A1.2(d)(2) and the other provisions discussed above all assign criminal his- tory points based on the length of the sentence for a prior conviction or adjudication. There is no apparent reason why the Sentencing Commission would have wanted to use one standard ("the maximum sentence imposed") to measure the length of a sentence under Sections 4A1.1(a) and (b) and Section 4A1.2(d)(1) and another measure un- der Section 4A1.2(d)(2).
*933 If Section 4A1.2(d)(2) **6 applied exclu- sively to juvenile adjudications, it could be argued that the Commission selected different methods for measur- ing juvenile and adult sentences. But Section 4A1.2(d)(2) also applies to some adult convictions, i.e., adult convic- tions for offenses committed before age 18 that result in sentences of confinement of at least 60 days. We can think of no reason why the Commission might have wanted to measure the length of such adult sentences using a differ- ent method from that employed in measuring adult sen- tences under all of the other closely related provisions. Thus, we conclude that the term "sentence to confine- ment" in Section 4A1.2(d)(2) has the same meaning as the term "sentence of imprisonment" in the other provisions. In all likelihood, the Commission used the term "confine- ment" rather than "imprisonment" in Section 4A1.2(d)(2) simply because that provision applies to juvenile adjudi- cations, as well as some adult adjudications, and the term
"imprisonment" is not customarily used when referring to juvenile adjudications.
Based on this analysis, each of Davis's prior juvenile adjudications qualifies for two criminal history points un- der Section 4A1.2(d)(2) because in each **7 case "the maximum sentence imposed" was at least 60 days. Davis was sentenced under the Pennsylvania Juvenile Act, 42
PA. CONS. STAT. ANN. § 6353(a) (Purdon Supp. 1990). That Act provides that a juvenile may be committed to an institution for a period that may not exceed either four years or the maximum adult sentence for the offense. With respect to Davis's prior adjudications, the maximum adult sentence for each principal offense was greater than
60 days. Therefore, the "maximum sentence imposed" for each of Davis's juvenile adjudications was at least 60 days, and two criminal history points were properly assigned for each juvenile adjudication under Section 4A1.2(d)(2). n1
n1 Although not relied upon as a source of authority, we note that our analysis is consistent with the Sentencing Commission's Supplementary Illustrations of Operation of Sentencing Guidelines for Multiple Counts and Criminal History. Criminal
929 F.2d 930, *933; 1991 U.S. App. LEXIS 5172, **7
Page 3
History Example F.2 provides:
The instant offense (a robbery) was committed on 12-6--87. The defen- dant's criminal history follows. On
7-1--82, the defendant (age 15) was charged in juvenile court with delin- quency (robbery). On 8-9--82, the de- fendant was adjudged delinquent and committed to the state training school for boys for a term of confinement not to exceed eighteen months. He was re- leased to aftercare (juvenile parole) on
3-7--83.
Two criminal history points are as- signed under § 4A1.1(b) because the defendant committed the offense prior to age eighteen. See § 4A1.2(d)(2)(A). The sentence is counted because the
**9
n2 This analysis is equally applicable to Davis's contention that the assignment of two criminal his- tory points for each indeterminate sentence im- posed in juvenile court would violate the consti- tutional guarantees of due process and equal pro- tection. Asserting that an indeterminate juvenile sentence may not reflect the seriousness of a ju- venile's offense, Davis contends that the guidelines are unconstitutional if they treat "a juvenile dispo- sition precisely like an adult sentence." However, because downward departure is available to rem- edy cases where a defendant's criminal history cat- egory significantly over-represents the seriousness of a defendant's criminal history, the factual pred- icate of Davis's constitutional argument is clearly unsound.
**8
defendant was released from confine- ment within five years of his com- mission of the instant offense. See
§ 4A1.2(d)(2)(A). Had an adult sen- tence of the same length (eighteen months) been imposed, three points rather than two points would have been assigned under § 4A1.1(a) and the ap- plicable time period would have been fifteen rather than five years. See §
4A1.2(d)(1).
*934 Davis contends that the sentencing court did not recognize the availability of a departure on this basis. We do not believe, however, that it is necessary for us to parse the colloquy at the sentencing proceeding to de- termine whether the defendant ever sought a downward departure on this precise ground or whether the sentencing judge recognized the possibility of such a departure. Nor is it necessary for us to decide at this time whether such a departure would be warranted in this case based upon the nature of the offenses that resulted in Davis's juvenile adjudications. Because this case must be remanded for sentencing for the reasons discussed below, Davis will have the opportunity to present these arguments to the sentencing judge.
III.
Davis contends that this methodology may overvalue the severity of prior juvenile adjudications because the length of a juvenile commitment is often based, not solely on the nature of the offense, but on other factors such as the length of available juvenile treatment programs, the juve- nile's need for training or rehabilitation, and the lack of a suitable home environment to which the juvenile may be returned. The Guidelines, however, provide a method for dealing with cases in which the standard criminal history calculation overvalues or undervalues the seriousness of a defendant's past criminal conduct. Under Section 4A1.3, a court may depart from the Guideline range "if reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defen- dant's past criminal conduct." We believe that this provi- sion authorizes a court to grant a downward departure if a court concludes that a prior juvenile adjudication resulted in a "sentence to confinement" of sixty days or more, not because of the severity of the offense, but solely because of factors such as those cited by Davis. n2
Davis contends that one of his prior juvenile adjudica- tions -- i.e., the adjudication for which he was sentenced by Judge O'Neill on March 14, 1988 -- is constitution- ally infirm because the record of that proceeding does not establish that his guilty plea was voluntary. At oral argument, the government conceded that this adjudica- tion was infirm and that it should not have been counted in calculating the defendant's criminal history category. Accordingly, **10 Davis must be resentenced.
IV.
Finally, Davis argues that his two constitutionally valid juvenile adjudications should have been merged for purposes of calculating his criminal history category because those cases were "consolidated for disposition"
(Brief at 27) and were therefore "related" under Section
4A1.2(a)(2). That provision states that "prior sentences imposed in related cases are to be treated as one sentence for purposes of the criminal history." The Commentary
929 F.2d 930, *934; 1991 U.S. App. LEXIS 5172, **10
Page 4
explains (Section 4A1.2, Application Note 3) (emphasis added).)
Cases are considered related if they (1) oc- curred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
Under this definition, cases may not be treated as re- lated simply because concurrent sentences were imposed. United States v. Davis, 922 F.2d 1385, 1390-91 (9th Cir.
1991); United States v. Paulk, 917 F.2d 879, 884 (5th Cir.
1990); United States v. Smith, 905 F.2d 1296, 1303 (9th
Cir. 1990); United States v. Jones, 898 F.2d 1461, 1463-
64 (10th Cir.), cert. denied, 498 U.S. 838, 111 S. Ct. 111,
112 L. Ed. 2d 81 (1990); **11 United States v. Metcalf,
898 F.2d 43, 46 (5th Cir. 1990); United States v. Flores,
875 F.2d 1110, 1114 (5th Cir. 1989).
In the present case, it is unclear whether Davis's two constitutionally valid juvenile adjudications simply re- sulted in concurrent sentences or whether they were ac- tually consolidated for sentencing. As previously noted, the presentence report indicated that concurrent sentences were imposed by two different judges on two different oc- casions. Specifically, the report indicated that on July 13,
1987, Judge Summers sentenced Davis for the first of these offenses to an indeterminate term of confinement and that on July 28 Judge Reynolds sentenced Davis for the second of these offenses to what was essentially a concurrent indeterminate term of confinement. The de- fendant's sentencing memorandum recounted exactly the same sequence of events (App. 16a).
At the sentencing hearing, however, defense counsel provided the following account which may or may not differ in substance from the presentence report (App. at
55a-56a) (emphasis added):
On the 13th of July, Judge Summers . . . committed Mr. Davis to Glen Mills , but de- ferred disposition **12 and transferred disposition . . . to a hearing in *935 front of Judge Reynolds on the 28th of July, 1987. .
. . On the 28th of July, 1987, Judge Reynolds ordered that Mr. Davis remain, as committed,
to Glen Mills .
On appeal, Davis's brief asserted that the following sequence of events occurred (Brief at 26-27 (emphasis added)):
On July 13, 1987 Judge Edward Summers adjudicated Mr. Davis delinquent but did not decide what to do with him. . . . Judge Summers transferred disposition of that case to Judge Abram Frank Reynolds, who had heard one of the other cases, and on July 28,
1987 Judge Reynolds ordered Davis commit- ted to Glen Mills on both cases.
At oral argument before us, the government urged that the case be remanded so that the precise sequence of events may be established. In order to ensure that the defendant's sentence is based upon accurate information, we will follow that course. n3
n3 The facts relating to Davis's valid juve- nile adjudications have not yet been established, and therefore we do not address the application of Section 4A1.2(a)(2) to what are at present hypothet- ical factual situations. Consequently, we express no view on the question whether consolidation for sen- tencing requires a formal procedure under the rules of the relevant jurisdiction. Nor do we express a view regarding the correctness of the passage in the Commentary stating that consolidation for sen- tencing is sufficient to render cases "related" un- der Section 4A1.2(d)(2). Compare United States v. Delvecchio, 920 F.2d 810, 812-13 (11th Cir. 1991)
(passage valid); United States v. Metcalf, 898 F.2d
43, 46 n.6 (5th Cir. 1990) (passage valid), with
United States v. Gross, 897 F.2d 414, 416 (9th Cir.
1990) (passage invalid); United States v. Davis, 922
F.2d 1385, 1391 (9th Cir. 1991) (applying Gross).
**13 IV.
We will vacate the sentence imposed by the district court and remand for further proceedings in accordance with this opinion.
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