Opinion
CR 15-00070-RSWL-1
11-17-2016
UNITED STATES OF AMERICA, Plaintiff, v. BRIAN SAWYERS, a.k.a. "B", Defendant.
ORDER Re: 21 U.S.C. § 851 PROVE-UP
I. INTRODUCTION
On August 4, 2016, Defendant Brian Sawyers ("Defendant") was found guilty of two counts of distribution of crack cocaine. On April 24, 2015, the Government filed an Information ("Info.") pursuant to 21 U.S.C. § 851, to establish prior convictions [39]. On October 25, 2016, Defendant filed a Response ("Resp.") to the Information [139]. On November 7, 2016, the Government filed a Reply to Defendant's Response [140]. On November 15, 2016, the Court held a prove-up hearing where all parties were provided an opportunity to address the Court and provide any arguments and evidence in support of their positions. The Court, having reviewed all papers and arguments submitted pertaining to the Information, NOW FINDS AND RULES AS FOLLOWS: the Government has met its evidentiary burden in proving beyond a reasonable doubt that the convictions in Counts One, Two, and Three in the Information occurred. Counts One, Two, and Three may be used to enhance Defendant's sentencing.
II. DISCUSSION
A. Legal Standard
21 U.S.C. § 851(a) states that there shall not be increased punishment under this section unless the Government satisfies the four procedural requirements in Section 851(a) that the Information be in writing, be filed with the court and served on the defendant or his counsel, be filed and served before trial or before a guilty plea, and the substance of the information must identify the previous conviction(s). U.S. v. Severino, 316 F.3d 939, 943 (9th Cir. 2003). If the person denies any of the allegations in the Information or alleges any conviction is invalid, he must file a written response. 28 U.S.C. § 851(c)(1). The court shall hold a hearing to determine any issues raised in the response and except as provided in Section 851(c)(2), the Government has the burden of proof beyond a reasonable doubt on any issue of fact. Id. If a person claims that any of the convictions alleged in the Information were obtained in violation of the Constitution of the United States, he
"shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge."21 U.S.C. § 851(c)(2). Section 851(e) goes on to say that "[n]o person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction." B. Analysis
1. The Government Must Prove the Convictions Occurred Beyond a Reasonable Doubt
If a defendant alleges that prior convictions sought to be used to enhance his sentence are invalid, the Government bears the burden of proof beyond a reasonable doubt. U.S. v. Luna, 768 F. Supp. 705, 708 (N.D. Cal. 1991). The Government must prove beyond a reasonable doubt that the defendant was convicted of each Count in the Information. Id. at 709. While the Government does bear this burden of proof if the defendant challenges the "accuracy or authenticity" of the judgment, if a defendant challenges the constitutionality of the actual procedure that led to the conviction, then the burden is on the defendant to prove by a preponderance of the evidence there was a constitutional violation. Id. at 710.
To determine who bears the burden of proof, the Court must determine whether Defendant questioned the fact that he was actually convicted, the constitutionality of the convictions, or both. During the prove-up hearing and in Defendant's Response, Defendant denied the prior convictions. Resp. 2:2-4. However in Defendant's Response, he goes on to say that he challenges the constitutionality of the convictions. Id. at 2:4-6. While the Government puts forth a strong argument that Defendant did not challenge the actual convictions, even if the Court found that Defendant did challenge the actual convictions, Defendant did not set forth what invalidity challenges he had to the actual convictions. And the Government nevertheless proved beyond a reasonable doubt that the convictions in Counts One, Two, and Three actually occurred.
At the prove-up hearing, the Government offered Exhibit 1 into evidence which was received and admitted. Exhibit 1 contained fingerprints and booking photos of Defendant from his arrest on February 26, 2015. Ex. 1 at USAO_SAWYERS-00789-00793. As to Count One, the Government provided a certified copy of the Minute Order from a pre-trial conference on November 28, 1988, a certified copy of the Minute Order of Defendant's sentencing on March 3, 1989, a certified copy of Defendant's probation violation on August 31, 1989, a certified copy of the Abstract of the Judgment on September 19, 1989, a certified copy of the Information on October 31, 1988, and a certified copy of the Felony Complaint on October 17, 1988. Id. at USAO_SAWYERS-00794-00809. As to Count Two, the Government provided a certified copy of the judgment and sentence along with fingerprints and a photo of Defendant on January 28, 1992. Id. at USAO_SAWYERS-00810-00817. Additionally, in the Government's Reply, the Government provided a printed copy of the docket entries for the case. Reply, Ex. 1. Defendant himself provided the Eighth Circuit's opinion affirming his sentence of Count Two. Ex. A. As to Count Three, the Government provided a printed copy of public information on data of inmates, a photo and fingerprints of Defendant, and a certified copy of the judgment on July 11, 2003. Ex. 1 at USAO_SAWYERS-00818-00835. In the Government's Reply, the Government also provided the Findings and Recommendations of the Magistrate Judge who questioned Defendant about his guilty plea, the acceptance of the Magistrate Judge's Recommendations by the District Court Judge, and a printed copy of the docket entries for the conviction in Count Three. Reply, Exs. 2-3. A judgment of a prior conviction is sufficient to prove the conviction occurred. Luna, 768 F. Supp. at 709. Moreover, docket entries which reflect guilty pleas, sentencing, and jury verdicts may also support a finding that a conviction occurred. U.S. v. Jones, 671 F. Supp. 2d 182, 185 (D. Me. 2009). As Defendant did not assert any specific challenges that the convictions actually occurred, the Government has met its burden.
2. The Government Provided Defendant Adequate Notice as to Count One in the Information
Defendant has failed to put forth sufficient evidence that the Government did not provide adequate notice of Count One in the Information. The purpose of § 851(a)(1) is to ensure "proper notice so a defendant is able to challenge the information." U.S. v. Sperow, 494 F.3d 1223, 1226 (9th Cir. 2007) (quoting U.S. v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000)). The Government needs to include sufficient facts "so that a rational defendant can identify the prior conviction." Severino, 316 F.3d at 943 (holding inaccurate information as to the state in which a prior conviction took place provided the defendant adequate notice). Here too, it is correct that the Government failed to provide the case number of Count One in the Information. However, the Information did include the conviction date, the location of the court where the conviction took place, and the violation that led to the conviction. Info. 1:27-2:3. Other courts where the Government included the wrong date and no case number, see U.S. v. King, 127 F.3d 483, 489 (6th Cir. 1997), wrong offense, see U.S. Steen, 55 F.3d 1022, 1025-28 (5th Cir. 1995), and wrong statutory section, see U.S. v. Campbell, 980 F.2d 245, 251-52 (4th Cir. 1992) found adequate notice if the information "definitively identified the prior conviction." Severino, 316 F.3d at 944.
Moreover, while Defendant argues that the Government failed to provide adequate notice as to Count One, in Defendant's Response, he argues that if the Court finds the Government did provide adequate notice as to Count One, then he challenges that conviction on the same basis as Count Three, that his guilty plea was not knowing and voluntary. Resp. 3:26-27. If Defendant really could not identify the conviction the Government set forth in the Information, Defendant would have been unable to assert a challenge to the constitutionality of the conviction based on a guilty plea that was not knowing and voluntary. It is clear that the Government put forth more than sufficient information to put Defendant on notice as to which conviction the Government identified and Defendant did not have any trouble in understanding which conviction the Government identified. See Severino, 316 F.3d at 943-44. Therefore, the "statutory purpose of providing defendant notice has been satisfied." Id.
3. 21 U.S.C. § 851(e)'s Five-Year Statute of Limitations Precludes Defendant's Challenges to his Prior Convictions
21 U.S.C. § 851(e) states that a person who is convicted of an offense under the section may not challenge the validity of any prior conviction alleged under this section if the conviction occurred more than five years before the date of the information that alleges the prior conviction. Defendant has failed to put forth binding case law that would persuade this Court to deviate from current binding case law that states that 21 U.S.C. § 851(e)'s five-year statute of limitations is constitutionally valid.
In U.S. v. Davis, 36 F.3d 1424, 1438 (9th Cir. 1994), the defendant alleged that 21 U.S.C. § 851(e) violated the Equal Protection and Due Process Clauses of the Constitution because he was subject to increased punishment and was not afforded an opportunity to challenge the validity of the prior convictions since they were more than five years before the Government filed an information as to the prior convictions. The Ninth Circuit, following the Supreme Court case of U.S. v. Custis, 511 U.S. 485 (1994), determined that there is no constitutional right to collaterally attack prior convictions which are used to enhance a defendant's sentence except for convictions which were obtained in violation of a defendant's right to counsel. Id.
Other than situations where there was a "jurisdictional defect" that resulted from a failure to appoint counsel, the right to challenge prior convictions is a statutory one and not derived from the Due Process Clause. Id. The Ninth Circuit went on to hold that the statutory right does not create a suspect class and is subject only to a rational basis analysis. Id. The court held the section passes the rational basis test because there are cost concerns with courts retaining records of prior convictions going too far back as well as evidentiary concerns if a witness on either side would be available years later to testify about an attack on a plea agreement. Id.; U.S. v. Williams, 954 F.2d 668, 673 (11th Cir. 1992) (citing Cirillo v. U.S., 666 F. Supp. 613, 616 (S.D.N.Y. 1987)). The Supreme Court in Custis, 511 U.S. at 496, established that the right to collaterally attack a conviction only applies to the right to have appointed counsel, and does not extend to other attacks such as those based on ineffective assistance of counsel or that a guilty plea was not knowing and intelligent.
The Eleventh Circuit has also followed suit agreeing with other courts that 21 U.S.C. § 851(e) is constitutional because it merely sets forth aggravating circumstances in sentence enhancement, is practical in limiting the records of prior criminal convictions that would need to be preserved if the section was not in place, and the likelihood of witness availability. Williams, 954 F.2d at 673.
For the reasons set forth above, Defendant has failed to set forth sufficient evidence that 21 U.S.C. § 851(e) violates the Due Process Clause in light of current case law. As such, Defendant cannot challenge the validity of the prior convictions the Government set forth in the Information and Counts One, Two, and Three can be used to enhance his sentence.
Defendant also argues that the use of his prior convictions to enhance his sentence should have been submitted to the jury to be proven beyond a reasonable doubt. Resp. 4:20-27. If a statutory provision calls for an enhanced sentence, then it need not be put in an indictment or charged separately as it is only Congress' intent to enhance a sentence, not charge a person with a separate crime. Almendarez-Torres v. U.S., 523 U.S. 224, 235 (1998).
Defendant cites Alleyne v. U.S., 133 S. Ct. 2151 (2013), which is distinguishable because in that case the Supreme Court was determining whether a sentencing factor in determining a mandatary minimum or maximum needs to be submitted to a jury, not whether prior convictions being used to enhance a sentence needs to be submitted to a jury. Defendant fails to show how his case and Alleyne are analogous to warrant such a finding. In Alleyne, the Supreme Court held that whether a fact must be provided to the jury to find beyond a reasonable doubt turns on "whether the fact constitutes an 'element' or 'ingredient' of the charged offense." Id. at 2158. Here, the prior convictions are not an "ingredient" of the charged offense and therefore did not need to be submitted to the jury to be proven beyond a reasonable doubt.
4. Defendant's Challenges to his Prior Convictions Lack Merit
It has been established that Defendant cannot challenge the validity of the three Counts alleged in the Information because of the five-year statute of limitations in 21 U.S.C. § 851(e). However, even if Defendant was not barred by the statute of limitations, Defendant's challenges to the three prior convictions lack merit. Defendant must prove by a preponderance of the evidence that the prior convictions were obtained in violation of the Constitution by setting forth the factual basis with particularity in responding to the Information. 21 U.S.C. § 851(c)(2). Defendant has failed to meet this burden in challenging the constitutionality of Counts One, Two, or Three.
Defendant alleges Counts One and Three were convictions based on guilty pleas which were not knowingly and voluntarily made. Resp. 3:14-18. In order for a guilty plea to be valid, it must be voluntary and intelligent. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Brady v. U.S., 397 U.S. 742, 748 (1970); see also McMann v. Richardson, 397 U.S. 759, 766 (1970). If a plea "is the product of threats, improper promises, or other forms of wrongful coercion" then it is involuntary. U.S. v. Hernandez, 203 F.3d 614, 626 (9th Cir. 2000) overruled on other grounds recognized by U.S. v. McChesney, 613 F. App'x. 556 (9th Cir. 2015). A plea is "unintelligent" if when the defendant enters the plea he is "without the information necessary to assess intelligently 'the advantages and disadvantages of a trial as compared with those attending a plea of guilty.'" Hernandez, 203 F.3d at 618-19; Hill v. Lockhart, 474 U.S. 52, 56 (1985); see also Brady, 397 U.S. at 754.
As to both Counts One and Three, Defendant fails to set forth any factual basis with particularity that proves by a preponderance of the evidence his guilty pleas were not knowing and voluntary and instead merely makes a conclusory statement that the guilty pleas were not knowing and voluntary. Moreover, the Magistrate Judge in Count Three issued a Report and Recommendation when the Defendant pled guilty finding that Defendant understood his rights, what rights he was giving up, and the effect of pleading guilty, which the District Court Judge accepted. Ex. 2. Defendant has failed to prove by a preponderance of the evidence that the convictions in Counts One and Three were obtained in violation of the Constitution.
Defendant claims he was denied effective assistance of counsel in his conviction of Count Two. Resp. 2-3. To make a showing of ineffective assistance of counsel, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The objective standard of reasonableness has two components. The defendant must show that a counsel's performance was deficient and the deficient performance prejudiced the defendant. Id. at 687. To show performance was deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. To show the deficient performance prejudiced the defense, a defendant must show that the "the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
Additionally, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In making a determination, courts shall focus on the "fundamental fairness" of the challenged proceeding. Id. at 696. While there is a strong presumption of reliability in a counsel's performance, courts need to determine if a result of a proceeding is unreliable because of a breakdown in the judicial process. Id.
In looking at the totality of the circumstances, courts must determine if the acts or omissions were "outside the wide range of professionally competent assistance." Id. at 690. There is a strong presumption that a counsel has provided adequate assistance that is within reasonable professional judgment. Id. A defendant must show that within reasonable probability, there would have been a different result in the proceedings, not merely that the alleged errors had some conceivable effect on the proceedings. Id. at 693. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In determining whether there was sufficient prejudice, a court may presume that a judge or jury acted according to the law. Id. at 694.
Here, Defendant alleges his trial counsel in Nebraska in Count Two failed to advise Defendant of the consequences of going to trial, failed to convey information about a pretrial resolution, and failed to investigate Defendant's background and possible prior convictions. Resp. 3:7-13. Exhibit A is a § 2255 motion Defendant made after his conviction in Count Two where he alleged ineffective assistance of counsel claiming his counsel failed to investigate a prior conviction that was not constitutionally valid, failed to review the record for appeal, and failed to oppose continuances that were granted in the trial. This Court was not given the district court's ruling on the § 2255 motion. However, Defendant did appeal his conviction and the Eighth Circuit affirmed it finding that the seventy-day period set forth in the Speedy Trial Act, 18 U.S.C. § 3161 was tolled as a result of Defendant and his co-defendant's pretrial motions so that Defendant was tried within the seventy-day requirement and there was no violation of the Speedy Trial Act. Ex. A.
It is unclear what exactly Defendant means or is attempting to argue when he states that counsel failed to advise Defendant of the consequences of going to trial or about a pretrial resolution. It is possible Defendant is asserting that his counsel failed to advise him of his chances of losing at trial and/or Defendant is alleging there was a possible plea offer by the Government that counsel failed to inform Defendant about, none of which Defendant specifically asserts in his Response. As Defendant only points to his § 2255 motion in asserting his ineffective assistance of counsel claim, it appears Defendant is alleging he was denied effective assistance of counsel as a result of his counsel's trial strategy decisions in failing to investigate a prior conviction of Defendant and/or counsel's failure to review the record for appeal. A counsel's strategic decisions is given deference and there is a strong presumption that a counsel has exercised reasonable professional judgment and provided adequate assistance. Strickland, 466 U.S. at 690. In looking at the totality of the circumstances (with what little Defendant has provided), it does not appear that counsel acted "outside the wide range of professionally competent assistance." Id. Defendant fails to set forth what exact actions taken by his trial counsel or results of those alleged actions affected the outcome of the case and how Defendant was prejudiced by his counsel's strategic decisions.
Defendant has provided no evidence to the Court showing how an alleged failure by trial counsel to advise him of the consequences of going to trial or about a pretrial resolution resulted in a conviction in violation of the Constitution. And Defendant has also failed to provide any evidence on how counsel's decision not to investigate Defendant's prior convictions resulted in his denial of effective assistance of counsel. Defendant fails to prove by a preponderance of the evidence that the conviction in Count Two was obtained in violation of the Constitution.
III. CONCLUSION
For the foregoing reasons, the Court finds the Government satisfied the evidentiary burden and proved beyond a reasonable doubt that the convictions in Counts One, Two, and Three in the Information occurred. Defendant is barred based on 21 U.S.C. § 851(e)'s five-year statute of limitations from challenging Counts One, Two, or Three. Additionally, Defendant fails to prove by a preponderance of the evidence that the convictions in Counts One, Two, or Three were obtained in violation of the Constitution. /// /// /// Defendant was advised any further challenges to the convictions in Counts One, Two, or Three not asserted are waived. Defendant's sentencing will take place on December 7, 2016.
IT IS SO ORDERED. DATED: November 17, 2016
s/ RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge