Opinion
No. 4:CR-05-28.
August 5, 2005
Ronald C. Travis, Esquire, RIEDERS, TRAVIS, HUMPHREY, HARRIS, WATERS WAFFENSCHMIDT, PA ID#08819, Williamsport, PA, Attorney for Defendant.
DEFENDANT'S BRIEF IN SUPPORT OF OBJECTIONS TO PSR
A. INTRODUCTION
By letter dated June 27, 2005, counsel for Defendant Speaks filed multiple objections to the pre-sentence report. Because the submitted PSR indicates that Defendant Speaks' sentencing exposure is driven by his classification as a career offender, the Brief submitted in support of the objections will address the career offender issue first. A decision with respect to the classification of Speaks as a "career offender" will have impact with respect to some of the other objections which have been raised.
1. THE INDICTMENT RETURNED NEITHER CHARGED SPEAKS AS A CAREER OFFENDER NOR DURING THE GUILTY PLEA DID SPEAKS ADMIT BEING A CAREER OFFENDER.
An objection was raised to the classification of Speaks as a "career offender" on the basis that such a conclusion is constitutionally impermissible since Speaks was neither charged in the indictment with being a career offender, nor did he admit during the course of his guilty plea that he was a career offender. In response to this objection, the probation office takes the position that since a finding of "career offender" status is allowed under the sentencing guidelines, this negates the requirement that this status be formerly charged or that the Defendant admit this status at the time of his plea. The probation office cites no cases to support its position.
The position taken by the probation office is untenable, given the post-Apprendi decisional authority by the United States Supreme Court and in the Third Circuit explaining that "elements of an offense" need to be either charged and proven beyond a reasonable doubt or admitted in order to allow for the imposition of a sentence in excess of the maximum sentence a defendant is otherwise exposed to. There is no question that the designation of Speaks as a "career offender" increases the maximum sentence to which he is exposed, as more fully set forth hereinafter.
Although the Defendant has challenged the components of certain of the factors used to calculate the adjusted offense level under the guidelines, and also challenged the counting of the Defendant's prior criminal history, for purpose of showing the increased sentencing exposure counsel will use the calculations made by the probation office. According to the calculations by the probation office, without career offender status, Defendant Speaks has an adjusted offense level of 29 (paragraph 23), and with a three-point reduction for acceptance of responsibility (paragraph 24) he would have a total offense level of 26. The probation office calculates his prior criminal history points at 12, which would give him a Criminal History Category of V. Level 26, Criminal History Category V would expose Mr. Speaks to a sentence of between 110-137 months. Treating Mr. Speaks as a career offender his total offense level is 31 (paragraphs 25, 26 27), with a Criminal History Category of VI (paragraph 36), and his sentencing exposure is deemed 188-235 months. Due to the "career criminal" designation, Mr. Speaks' sentencing exposure has been increased by 78-98 months, depending on where within the guidelines the actual sentence is imposed. Thus, there can be no question that the maximum sentence to which Mr. Speaks is exposed, has been significantly increased as a result of his classification as a "career offender." Reviewing the teachings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, leads to the conclusion that the classification of an individual as a "career offender" is a factual determination to be made and thus is included in the ambit of what constitutes an "element of the offense" triggering the requirement that the element be pled and proven beyond a reasonable doubt, or admitted by the Defendant at the time of guilty plea. It is the position of the Defendant that the classification of someone as a "career offender" differs from the use of prior convictions to enhance a sentence which appear to be permissible pursuant toAlmendarez-Torres v. United States, 523 U.S. 224 (1998) as this decision, although questioned in Apprendi v. New Jersey, 530 U.S. 466 (2000). See, Id. at 521 (Thomas, J., concurring), has yet to be overruled.
The use of prior convictions to classify Speaks as a career offender is more akin to the "factual determination" required under the New Jersey hate crime statute, which was disapproved of in Apprendi, than to the sentencing enhancement which was approved in Almendarez-Torres. For an individual to be classified as a career offender pursuant to Section 4B1.1, the sentencing court must do more than merely look at the Defendant's prior criminal convictions. The sentencing court is required to make a factual finding that the person to be sentenced was at least eighteen years of age at the time of the instant offense, and also must make a factual determination that the person to be sentenced suffered at least two prior felony convictions for either a crime of violence or a controlled substance offense. It is the requirement the court make factual findings which causes the classification of an individual as a career offender to run afowl of Sixth Amendment juris prudence unless the classification is pled in an indictment and submitted to a jury for proof beyond a reasonable doubt or the status is admitted by the Defendant during a guilty plea colloquy. It is the position of Speaks in the instant case that the probation officer was not at liberty to seek to classify Speaks as a career offender notwithstanding the career offender provisions set forth in the sentencing guidelines. By analogy, the requirement that the government plead career offender status and prove same to a jury beyond a reasonable doubt or the Defendant admit career offender status as part of a guilty plea colloquy is essentially the same as the post-Apprendi requirement that in drug cases the government plead and prove drug identity as well as quantity allegedly distributed. United States v. Vazquez, 271 F.3d 93 (2001) (concurring Opinion by Chief Judge Becker). United States v. Barbosa, 271 F.3d 438 (2001).
For the reasons as more fully set forth above this court should find that the conclusion by the probation office that Speaks should be deemed a "career offender" is a conclusion reached in violation of the Sixth Amendment rights of Speaks, and therefore should be rejected. 2. THE DEFENDANTS PRIOR CONVICTIONS SHOULD NOT BE DEEMED PREDICATE OFFENSES FOR CAREER OFFENDER PURPOSES.
If the court rejects the argument that the Sixth Amendment precludes classifying Speaks as a career offender, it must determine whether Speaks has the predicate convictions to properly be classified as a career offender. In the pre-sentence report, the probation office relies on the convictions set forth in paragraphs 32 and 35 of the pre-sentence report as the basis for classifying Speaks as a "career offender." The probation office rejects the objection raised, and cites in support of its position a Third Circuit decision dealing with the offense of "reckless endangerment" under the statutory law of the state of Delaware. For the reasons as set forth hereinafter, the probation office reliance on the Third Circuit's handling of the statutory offense of reckless endangerment pursuant to the Delaware statute is misplaced.
Under Section 4B1.2(a) the term "crime of violence" requires that a potentially countable state law conviction "has an element that the use, attempted use, or threatened use of physical force against the person of another." The reckless endangerment offense for which Speaks was convicted is a violation of 18 Pa.C.S.A. § 2705. To constitute this offense, a person "recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." One engaging in reckless conduct which may place another person in danger of death or serious bodily injury is significantly different from an individual using, attempting to use, or threatening to use physical force against the person of another. A review of the alleged conduct engaged in by Speaks on September 17, 2000, (page 7 of pre-sentence report) fails to show that Speaks used, attempted to use, or threatened to use physical force against the person of another. The underlying criminal conduct of Speaks was failure to come to a complete stop and speeding. Both motor vehicle code violations are summary offenses, and a significant question exists whether it was appropriate for the police department to engage in a high-speed chase where the underlying offenses are summary motor vehicle offenses. While it is true that the Speaks vehicle did not come to a stop when the police signaled the driver to do so, it is the police who made the decision to engage in the chase and thus created the hazard. A review of the application notes with respect to Section 4B1.2 mitigate against considering the Pennsylvania reckless endangerment offense as a crime having as an element the use, attempted use, or threatened use of physical force against the person of another, and thus being deemed a "crime of violence." In Application Notes 1 the enumerated offenses constituting "crimes of violence" all specifically involve deliberate physical interaction between the victim and the person to be sentenced. The physical interaction is also interaction initiated by the person to be sentenced. There is no factual information set forth in the write up of the alleged conduct which indicates that Speaks used, attempted to use, or threatened use of physical force against the person of another. A review of the Pennsylvania Suggested Standard Criminal Jury Instructions with respect to the offense of recklessly endangering another person conclusively shows that an element of this offense is not the use, attempted use, or threatened use of physical force against the person of another. (A copy of the suggested standard instruction is attached as Exhibit "1" to this Brief).
The Delaware Sentencing Accountability Commission classified the Delaware statutory offense of reckless endangering in the first degree as a "violent felony," and therefore the case cited by the probation office, United States v. Parson, 955 F.2d 858 (1992) is not determinative of whether the Pennsylvania charge of reckless endangerment is a "violent felony." Since the Parson case is not controlling, and the Pennsylvania statutory scheme does not have as an element of the offense of reckless endangerment, the use, attempted use, or threatened use of physical force against the person of another, it is inappropriate to deem the conviction for reckless endangerment as a predicate offense for career offender status.
We next turn our attention to the countability of the two possession with intent to distribute marijuana offenses set forth in paragraphs 32 and 35 of the pre-sentence report. In both instances, the marijuana possessed was significantly less than a pound of marijuana. Under the sentencing matrix in Pennsylvania, a conviction for possession with intent to distribute less than a pound of marijuana carries a standard range sentence of from RS to 1 month on the minimum end. Clearly, the Commonwealth of Pennsylvania has chosen to treat sales of marijuana, where the quantity is less than a pound, in a very lenient fashion. While technically it can be argued that since the offense is an ungraded felony a sentence in excess of one year could be imposed, the reality is that the sentencing guidelines make it virtually impossible for a sentencing court to justify such a sentence given the fact that the sentence called for is RS to 1 at the minimum end, and the maximum sentence need only be double the minimum. The RS designation means restorative sanctions, and essentially consists of a probationary sentence. Given the harsh enhancement with respect to the sentencing exposure for Speaks, if he is classified as a career offender, the use of these two minor drug offenses to achieve that classification smacks of extreme unfairness. It is ludicrous to suggest that drug offenses as insignificant as the two under consideration were the type of prior drug convictions envisioned as a proper basis for invoking career offender status.
Speaks requests the court find that he lacks the necessary predicate convictions to be classified as a career offender. 3. IF THE COURT HOLDS THAT SPEAKS SHOULD NOT BE CLASSIFIED AS A CAREER OFFENDER, OBJECTIONS RAISED WITH RESPECT TO THE SENTENCING GUIDELINE CALCULATION MUST BE CONSIDERED AND DECIDED. A. SPEAKS SHOULD NOT RECEIVE A SEVEN LEVEL INCREASE FOR THE DISCHARGE OF A FIREARM.
It is undisputed that co-defendant Mojica is the individual who carried the firearm, and also undisputed, he is the individual who fired the firearm. It also appears to be undisputed that the shot was fired into the floor of the bank, and that the firing of the firearm was a gratuitous act on the part of the co-defendant. The probation officer rejects the objection raised and asserts that the gratuitous firing of the firearm by the co-defendant should be deemed "reasonably foreseeable" by Speaks. It is the position of Speaks that the gratuitous firing of the handgun into the bank floor after the bank robbery had been completed, does not fall within the parameter of conduct which is properly deemed "reasonably foreseeable." Had the firearm been discharged as Speaks and the co-defendant entered the bank for the purpose of getting the attention of those in the bank and controlling their conduct during the robbery, such an act is arguably "reasonably foreseeable." Had the firing occurred during the course of the robbery itself in order to cause the tellers to "hurry up" in turning over the money, or to deter a teller or some other individual from interfering with the robbery, again you have an act which is arguably "reasonably foreseeable." However, in the instant case the individuals within the bank had cooperated and the robbery had been completed when co-defendant Mojica for no apparent reason discharged the gun into the bank floor. Under those particular circumstances the discharge of the weapon should not be deemed "reasonably foreseeable" on the part of Mr. Speaks.
Section 1B1.3(a)(1)(B) does potentially serve to make Speaks responsible for the conduct of Mojica, provided the conduct is both "reasonably foreseeable" and undertaken "in furtherance of the jointly undertaken criminal activity." The jointly undertaken criminal activity was the robbery of the bank, and at the time the gratuitous shot was fired the criminal activity had been completed. The explanation by the probation office as to why it deems this seven level enhancement appropriate does not include any explanation as to how the firing of the shot into the floor was an act "in furtherance" of the robbery of the bank, which had already concluded.
Defendant Speaks urges the court to find that the seven level enhancement for the discharge of the firearm should not be applied to him so that the adjusted offense level should be deemed 22 instead of 29. (paragraph 23). The Defendant's total offense level should be deemed to be 19, level 22 less three levels for acceptance of responsibility. (paragraph 27). B. OBJECTIONS TO CRIMINAL HISTORY CALCULATION
a. Objection to the one point assigned under paragraph 29. The Defendant was arrested on October 10, 1999, and charged as a juvenile with criminal conspiracy and robbery. According to the pre-sentence report, the underlying offense occurred on May 28, 1999. In the instant case the bank robbery occurred on November 13, 2004. Clearly, the criminal conduct, as well as the arrest of Speaks, occurred more than five years prior to the instant bank robbery. The date of adjudication on the juvenile offense was December 15, 1999, four years and eleven months prior to the instant bank robbery. The PSR assigns one criminal history point for this juvenile adjudication under Sections 4A1.1(c) and 4A1.2(d)(2). Given the fact that both the offensive conduct and arrest were outside the five-year time frame, and four years and eleven months had passed between the date of adjudication and the instant offense, Speaks requests the court to decline to impose the one point criminal history for this particular offense.
b. Objection was also made to paragraph 31 of the pre-sentence report assigning one criminal history point for failure to file earned income tax. The probation office relies on application Note 12 of Section 4A1.2 to support the assignment of this one point to Speaks' criminal history. A review of this Application Note shows same to not support the position taken by the probation office. The Application Note identifies that certain local jurisdictions have ordinances which cover certain offenses that are also violations of state criminal law. In other words, if the conduct is a criminal offense under state law, the violation of the local ordinance results in one criminal history point. The problem is that a review of the State Penal Code fails to establish that the failure to file a local earned income tax return is a state criminal offense. Thus, this particular charged offense appears to be a criminal offense created by a local ordinance with respect to the earned income tax scheme for the City of Harrisburg. Section 4A1.2(c)(1) excludes the one point assigned to Speaks' criminal history based on the violation of the failure to file an earned income tax return in the City of Harrisburg.
c. An objection was also raised to the assignment of three criminal history points as a result of the conviction set forth in paragraph 32. After reviewing the appropriate guideline language, it appears that the assignment of three points for the convictions referenced in paragraph 32 are proper.C. CONCLUSION
It is the position of Speaks that he is a level 19 with a Criminal History Category V so that his sentencing exposure should be 57-71.