Opinion
Cause No. SA-03-CR-547-XR.
July 20, 2004
ORDER
I. Background
On March 11, 2004, Defendant pled guilty to counts two and three of an indictment. Count two charged Defendant with possession with intent to distribute 50 grams or more of cocaine base on or about October 30, 2003. Count three charged Defendant with possession of firearms in furtherance of a drug trafficking crime. In his plea agreement, Defendant admitted that he was in possession of 330 grams of cocaine base, a Glock model 22, 510 grams of cocaine and a .38 caliber semiautomatic pistol. He further admitted to manufacturing cocaine base from the powder cocaine.
On May 27, 2004, Defendant filed a motion for downward departure pursuant to USSG § 5K2.0. In that motion, and the amended motion filed June 3, 2004, he argues that the Presentence Investigation Report (PSR) incorrectly stated that he was a career offender. This characterization placed him in a category VI. He argues that he is not a career offender, and that he should have been sentenced pursuant to a category V.
On July 13, 2004, Defendant filed a "Constitutional Objection to Enhanced Sentencing Guideline Range" arguing that the United States Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004) precludes this Court from making a finding of career offender and applying that finding to his sentence.
The sentencing hearing was held in this case on May 28, 2004, and the Court adopted the factual statements contained in the PSR. The Court found that given the amounts of admitted cocaine base and cocaine the total offense level was 34. Three points were deducted for acceptance of responsibility, which made the total offense level 31.
The Court, however, concluded that a USSG § 4B1.1 enhancement applied because Defendant was a career offender. Because the offense level for a career criminal from the Offense Statutory Maximum Table was greater (37) than the offense level otherwise applicable (34), the Court applied the offense level from the Offense Statutory Maximum Table. After deducting three points for acceptance of responsibility, the Court found that the total offense level was 34.
II. Career Criminal
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1.
Defendant's PSR indicates the following felony convictions occurring after he was eighteen years of age: (1) on May 26, 1987, he pled guilty in the United States District Court, Western District of Texas to distribution of cocaine within 1,000 feet of a public school. SA-87-CR-60; (2) on December 14, 1990, he pled guilty in the Western District of Texas to distribution of 5.97 grams of cocaine, which distribution took place on March 8, 1990. SA-90-CR-157; and (3) on August 12, 1991, he pled guilty in the 226th Judicial District Court of Bexar Country, Texas to delivery of less than 28 grams of cocaine. It is uncertain from the records before this Court when that illegal delivery took place.
Defendant argues that acts 2 and 3 described above "arose from the same arrest" and "arose out of the one occurrence. . . ." While, prior sentences imposed in unrelated cases are to be counted separately, prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c). USSG § 4A1.2(a)(2); see also U.S. v. Robinson, 187 F.3d 516 (5th Cir. 1999). Defendant thus argues that the two convictions arose out of one occurrence that allegedly took place on or about November 21, 1989, and should be treated as one sentence.
Assuming that the state offense occurred on or about November 21, 1989, Defendant's argument does not explain the federal offense which occurred on March 8, 1990. Further, even though the state court sentence and fine ran concurrently with the federal case, this fact alone does not establish that the cases were related. "Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." USSG § 4A1.2, Commentary, Related Cases.
Further, assuming that the two convictions arose out of one occurrence, Defendant fails to explain why the career offender enhancement does not apply. The term "two prior felony convictions" means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere. USSG § 4B1.2(c). Assuming Defendant is correct that there is only one conviction for an act occurring in 1989, Defendant also was convicted for an act occurring in 1987. Thus, there still remains two prior felony convictions.
During the sentencing hearing Defendant also sought relief pursuant to USSG § 5K2.0. He argued that because his last illegal acts prior to this instant offense took place almost 14 years ago, he should not be characterized as a career offender. Defendant acknowledges that there is no case law to support his argument. The Court does not find that there exists a mitigating circumstance. The Court denies Defendant's first amended motion for downward departure.
III. Blakely
Defendant argues that Blakely precludes this Court from making a finding of career offender and applying the finding to his sentencing. Restating the rule it expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court stated: " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S.Ct. at 2537 (emphasis added). Otherwise, the Fifth Circuit has held that Blakely does not extend to the federal guidelines. U.S. v. Pineiro, ___ F.3d ___, 2004 WL 1543170 (5th Cir. 2004). Defendant's objection is overruled.
IV. Conclusion
Defendant's First Amended Motion for Downward Departure is DENIED. Defendant's "Constitutional Objection to Enhanced Sentencing Guideline Range" is OVERRULED.