Opinion
No. 02-40079-01-SAC
March 19, 2003
RULING ON OBJECTIONS TO PRESENTENCE REPORT
The defendant Virok Webb pleaded guilty to a single count indictment that charged him with possession with intent to distribute 5 grams or more of cocaine base. The version of the Presentence Report ("PSR") disclosed in December of 2002 recommended a base offense level of 26, a three-level reduction for acceptance of responsibility, and a total offense level of 23. The PSR calculated a criminal history category of two and determined the applicable sentencing guideline range to be 60 to 63 months after accounting for the five-year mandatory minimum sentence.
The defendant objected to the criminal history points assessed for the convictions in ¶¶ 30 and 31 of the PSR. The defendant argued that in both cases he was indigent and not represented by counsel. In his sentencing memorandum filed December 13, 2002, the defendant represented that he "could not afford counsel and no free counsel was offered" him in those cases and that "[n]o valid waiver of counsel was sought, obtained or recorded by the municipal court." (Dk. 23, p. 3). The defendant attached to his sentencing memorandum docket sheets from both municipal court cases on which appeared the words, "WAIVED," or "SIGNS WAIVER." The defendant did not argue in this sentencing memorandum that those notations had any particular meaning or held particular significance to his objection. Nor did the defendant concede that he had signed any purported written waiver of counsel which he was challenging now as invalid.
Upon reading these objections, the court on December 17, 2002, suggested that the sentencing hearing be continued in order for the probation officer to investigate the municipal court records with regard to this objection. The parties did not object to the continuance. The defendant did not argue that a continuance would be unnecessary because he was not objecting to whether the municipal record included any signed waivers but to whether any such written waivers actually were valid.
As directed, the probation officer investigated the Junction City municipal court records and filed a second addendum to the PSR reporting what she found. In the municipal court case No. 97-7339 on the charge of failure to appear pursuant to court order (¶ 30 of the PSR), the probation officer found a written waiver of counsel apparently signed by the defendant Virok Webb and witnessed by the municipal court judge. In the municipal court case No. 98-3909 on the charge of trespass (¶ 31 of the PSR), the probation officer also found a written waiver of counsel apparently signed by the defendant and witnessed by the municipal court judge. The waivers were attached to the second addendum to the PSR.
In the second addendum at ¶¶ 89 and 90, the PSR writer quoted from the defendant's sentencing memorandum and concluded that the quoted statement was "inaccurate." The PSR writer further opined that the quoted statement could constitute "false information . . . provided to the Court in substantiation of an argument which could have affected the defendant's sentence in this case." Though not recommending any enhancement based on this statement, the PSR writer noted that the court could consider it as grounds for a greater sentence within the guideline range insofar as it was "incomplete or misleading information, not amounting to a material falsehood," provided in "a presentence investigation." U.S.S.G. § 3C1.1, comment. (n. 5(c)).
In response to the second addendum to the PSR, the defendant filed a supplemental sentencing memorandum in which he argued that the written waivers were insufficient to show the defendant made a knowing, intelligent and voluntary waiver of his right to counsel and, in fact, were evidence of the judge's failure to conduct a thorough and comprehensive inquiry of the defendant. The defendant also objected to ¶¶ 89 and 90 and asked that they be stricken from the second addendum to the PSR. The defendant argued that his challenge has always been to the validity of the waivers, that the written waivers were not valid, and that the allegations in ¶¶ 89 and 90 were "reckless," "unfounded and ill-considered."
The sentencing hearing on January 29, 2003, was continued at the court's request, and the sentencing hearing on February 26, 2003, was continued at the defendant's request. The PSR writer received from defendant's counsel a letter reporting that the Municipal Court of Junction City, Kansas, had vacated the defendant's trespass conviction in case No. 98-3909. Defense counsel provided probation with a copy of this municipal court order that was entered on February 26, 2003. In response, the probation officer has modified the PSR deleting this conviction that formerly appeared at ¶ 31, reducing the defendant's criminal history category to one, and giving the defendant a safety valve adjustment. As a result of these modifications, the defendant has a total offense level of 21, a criminal history category of one, and a sentencing guideline range of 37 to 46 months.
DEFENDANT'S OBJECTION NO. 1: As reflected in the third addendum, the defendant maintains his objection to the single criminal history point scored for his conviction in ¶ 30 based on the arguments appearing in the prior addenda and in his prior sentencing memoranda. The defendant also submits a second supplemental sentencing memorandum notifying the court that his trespassing conviction had been vacated.
Ruling: As set forth in application note six of U.S.S.G. § 4A1.2, sentences resulting from convictions that have been vacated "are not to be counted." Thus, the most recent version of the PSR correctly deletes this criminal history point for the trespassing conviction. As a result of this change and the application of the safety valve adjustment, the court finds that the defendant's total offense level is 21, his criminal history category is one, and his sentencing guideline range is 37 to 46 months. The court determines that it is unnecessary to rule on the defendant's objection to the criminal history point scored for the conviction at ¶ 30. A ruling on this objection would not affect the defendant's criminal history category and will not affect the sentencing.
DEFENDANT'S OBJECTION NO. 2: The defendant and his counsel ask the court to remove ¶¶ 89 and 90 of the second addendum, now ¶¶ 91 and 92 of the most recent version of the PSR.
Ruling: The court denies the defendant's request to strike these paragraphs from the second addendum to the PSR. The court shall not consider those statements in sentencing the defendant. The court intends to sentence the defendant at the low end of the guideline range as the parties have recommended.
IT IS THEREFORE ORDERED that this filing shall constitute the court's final determination of the unresolved objections to the PSR. Because the court has determined that a ruling will not affect the sentencing, the court will impose sentence on March 25, 2003, at 10:00 a.m. without hearing further evidence or arguments concerning these specific objections.