United States v. White

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 2, 2003
No. 02-12614
THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 01-00765-CR -CC-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DER RICK WH ITE, a.k .a. Earne st Wilbo rn, Jr.,
a.k.a. Zac hary Jon es, etc.,

Defen dant-A ppellant.

__________________________

Appeal from the United States District Court
for the N orthern District o f Geor gia
_________________________
(July 2, 2003)

Before EDMONDSON, Chief Judge, KRAVITCH and GIBSON *, Circuit Judges.

*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
KRAV ITCH, Circuit Judge:

Defendant-appellant Derrick White a ppeals h is sentence for being in the United

States illegally. White argues that the district court misapplied the term “relevant

condu ct” pursuant to U nited States Se ntencing G uideline (“U.S.S.G.”) § 4 A1.2 in

calculating his criminal history. Resolving this issue requires us to determine the

proper standard for reviewing a district court’s application of the Sentencing

Guidelines to the facts.

I. BACKGROUND

The Douglasville Police Department arrested Derrick White in early 2001 for

violating Georgia drug laws. White told the officers that his name was “Earnest

Wilborn, Jr.” The Douglasville Police took White’s fingerprints and sent them to the

Law Enforcement Support Center, which receives FBI criminal histories on foreign-

born persons arrested in the United States. The Douglasville Police then released

White on bond.

Upon discovering that “Wilborn’s” fingerprints and alien registration number

matched White’s , the Un ited States Immig ration an d Natu ralization Service (the

“INS”) investigated White’s case for illegal re-entry. INS agents obtained a federal

warrant and asked the DeKalb County Police Department to help them execute the

2
warran t. On July 9, 2001 INS agents went to White’s residence, and when White left

his apartment, the INS agents approached him and identified themselves. He refused

to talk, and the INS agents detained him until the DeKalb County officers arrived.

After the DeKalb County officers arrived, one of them asked White for his name, and

White responded that his name was “Wilborn.” The officer immediately arrested

White for giving a f alse name to a p olice officer. Th e INS sea rched W hite’s

apartment and foun d a fake d river’s licen se in the n ame of “E arnest W ilborn, Jr .”

White was charged in state court with forgery and with giving false information to the

police; the state prosecutor dismissed the forgery charge when, without the assistance

of counse l, White p leaded g uilty to giv ing the p olice false in formation. White was

sentence d on O ctober 2 , 2001 to the eighty-three days’ imprisonment he had already

served.

Immed iately after White received his state sentence, INS agents to ok him into

federal custody and interrogated him. W hite admitted that his name was “Derrick

White” and that he had been deported in 1987 and again in 1991. Both deportations

followed convictions for drug trafficking, which is an aggravated felony. Because the

U.S. Attorn ey Gen eral had n ot conse nted to W hite’s re-entries following the

deportations, the federal govern ment ch arged W hite with being found in this country

after deporta tion follo wing c onvictio n for an aggrav ated felon y, which the

3
government claimed was a violation of 8 U.S.C. § 1326(b)(2). 1 White entered a non-

negotiated guilty plea on February 8, 2002.

Before the sentencing hearing, the probation officer prepared a presentence

investigation report (the “PSI Report”), in which she assessed five criminal-history

points, two of which were for the false-information sentence. This calculation placed

White in criminal-history category III; he would have been classified in category II

but for the inclusion of the false-information sentence. White objected to the PSI

Report’s inclusion of this previous sentence.

At the sentencing hearing, White again objected to the assessment of two

criminal-history points for the state false-information sentence, arguing that the

conduct underly ing this conviction was part of the instant §1326 offense and that the

two additional criminal-history points should not be assigned. The sentencing court

ruled against White, applying U.S.S.G. § 4A1.2 and holding that the false-information

convictio n arose f rom “sep arate con duct.”

White raises a second ground for challenging the assessment of the two

1
Title 8 U.S.C. § 1326(a) identifies three separate offenses: entering the U.S. illegally,
attempting to enter the U.S. illegally, and being found in the U.S. illegally. Section 1326(b)(2)
provides that aliens “whose removal was subsequent to a conviction for commission of an
aggravated felony . . . shall be fined under such Title, imprisoned not more than 20 years, or
both.” The indictment charges White with “being found in the U.S.” in violation of § 1326(b).
Although the judgment and PSI Report indicate that White’s conviction was for “entering the
U.S.,” both parties conceded at oral argument that White’s crime was for being found illegally in
the United States on July 9, 2001. Accordingly, we assume that White’s offense was for being
found illegally in the United States on July 9, 2001 in violation of 8 U.S.C. § 1326(a).

4
criminal-history points for the false-information sentence—namely, that the false-

information conviction was the result of an uncounseled plea. White’s counsel,

however, did not o bject in the district court to the government’s use of the

uncounseled plea.

There are thus two issues on appeal: first, whether the district court erred in

assessing two criminal-history points for White’s false-information sentence on the

ground that giving false information to the police was part of the instant federal

offense; and seco nd, wh ether the d istrict cour t plainly err ed wh en it relied on an

uncounseled guilty plea in calculating White’s criminal history.

II. WHETHER FALSE-INFORMATION SENTENCE WAS A “PRIOR
SENTENCE” UNDER THE SENTENCING GUIDELINES

Section 4A1.1 of the U nited States S entencin g Guid elines assig ns a certain

number of points for a defendant’s “prior sentences.” The type of crime and the

length of a defendant’s prior sentence af fect the nu mber o f crimina l-history p oints

assigned to each “prior sentence.” A court calculates the defendant’s criminal-history

category by totaling all of the de fendan t’s crimina l-history p oints. U.S.S .G. § 4A1.1

and com ment.

Here, White received two criminal-history points p ursuan t to U.S .S.G. §

4A1.1(b) for the sta te false-informatio n senten ce, whic h placed him in cr iminal-

5
history category III rather than in category II. Had the sentencing court not counted

the two points for the false-information sentence, White may have received a shorter

sentence than his current 18-month sentence.2 White argues that the sentencing court

should not have counted his state false-information sentence as a “prior sentence”

when it calculated his criminal-history category.

“The term ‘prior sen tence’ means any sentence previously imposed upon

adjudication for guilt . . . for conduct not part of the instant offense.” U.S.S.G.

§ 4A1.2(a)(1). “Conduct that is part of the instant offense means conduct that is

relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant

Conduct).” U.S.S.G. § 4A1.2 comment. (n.1). In turn, “relevant conduct” includes,

inter alia, “all acts and omissions committed . . . by the defendant that occurred during

the commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense . . . .”

U.S.S.G. § 1B1.3(a)(1) (emphasis added). This court has never defined what conduct

constitutes “an action taken to avoid detection or responsibility for” an offense under

U.S.S.G. § 1B1.3(a)(1), nor, until now, have we prescribed the proper standard for

review ing a distr ict court’s a pplication of U.S .S.G. § 4A1.2 and § 1B1.3(a)(1) to the

facts in light of Buford v. United States, 532 U.S. 59 (2001).

2
In White’s case, a category III criminal history prescribes a sentencing range between 18 and
24 months, whereas a category II classification prescribes one between 15 and 21 months.

6
A. Standard of Review

Congress has prescribed three standards for reviewing a district court’s use of

the Sentencing Guidelines: appellate courts are to review purely legal questions de

novo, a district court’s factual findings for clear error, and, in most cases, 3 a district

court’s application of the Guidelines to the facts with “due deference.” See 18 U.S.C.

§ 3742( e); see also Buford v. United States, 532 U .S. 59, 6 3 (200 1). Yet, despite the

instruction in 18 U.S.C. § 3742(e), confusion exists concerning the proper standard

for reviewing a district court’s application of the Sentencing Guidelines to the facts.

Compare, e.g., United States v. Saavedra, 148 F.3d 1311, 13 13 (11th C ir. 1998) (“W e

review de novo the district court’s application of the S entencin g Guid elines to a given

set of facts.”) and United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003)

(“This Court reviews the district cou rt's findings of fac t for clear e rror and its

application of the sentencing guidelines to those facts de novo.”), with United States

v. Hunter, 323 F .3d 1314, 1322 (11th Cir. 2003) (“We review for clear error the

finding that prior convictio ns are un related un der § 4A 1.2.”). Hunter is a recent

3
The PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat. 650, amended 18 U.S.C. § 3742(e),
thereby changing the standard of review for certain cases in which a district court has applied a
sentence outside the applicable guideline range. Nevertheless, because our review falls under
subsection (e)(2) of § 3742 rather than subsection (e)(3), the PROTECT Act’s amendments do
not change the standard of review in this case.

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Eleven th Circuit decision about the Sentencing Guide lines’ con cept of “re latedness ,”

and Saavedra and Anderson prescrib e the standard for reviewing a district court’s

application of the Guidelines to the facts. None of these cases, however, has

considered the effect of Buford v. United States, 532 U.S. 59 (2001), on our standard-

of-review analysis in cases involving the application of the S entencing Guidelines.

Buford involved a bank robber who received a career-offender enhancement to

her sentence pursua nt to U.S .S.G. § 4B1.1 . Apply ing § 4A 1.2, wh ich instructs a

sentencing court to count “related offenses” as a single offense, the district court ruled

that one of Buford’s five prior convictions was not “functionally consolidated”

with—and hence n ot “related” to—th e other fo ur conv ictions. Id. at 61S 62. On

appeal, the Seventh Circuit characterized the district c ourt’s de cision ab out whether

the convictions were “related” and “consolidated” as follow s:

We have . . . a classic mixed issue, wh ere the [district court applied] legal norms

to classify the facts. And disputes about the proper characterization of events,

when legal norm s guide rather than d etermine the answer, a re principally

committed to district courts, with deferential appellate review. . . . Questions

concerning application o f the Guidelin es ge nera lly are reviewe d defere ntial ly,

unless th e district c ourt ma kes an i dentifia ble lega l mistak e . . . .

United Stated v. Buford, 201 F.3d 937, 941S 42 (7th Cir. 2000) (internal citation

omitted). Accordingly, the Seventh Circuit reviewed the district court’s application

8
of the Guidelines for clear error and affirmed the district court’s decision.

The Supreme Court affirmed the Seventh Circuit’s standard of review,

explaining that appellate courts must give “due deference” to a district court’s

application of a “Sen tencing G uidelines term” to th e facts. Buford v. United States,

532 U.S. 59, 63S 64 (2001). The Court explained that the “deference that is due

depends on the nature of the question presented.” Id. at 63 (quoting Koon v. United

States, 518 U.S. 81, 98 (1996)). The Court did not explicitly prescribe a clear-error

standard for reviewing a district court’s application of §§ 4A1.2, 4B1.1, and 4B1.2 .

Nevertheless, the Court stated, “In light of the fact-bound nature of the legal decision,

the compa ratively greater expertise of the District Court [at sentencing], and the limited

value of uniform court of appeals precedent, we conclude that t he Cou rt of Ap peals

proper ly reviewed the District Court’s ‘functional consolidation’ decision

deferentially.” Buford, 532 U.S. at 66.

Reading our recent decision in Hunter in light of Buford, a district court’s

determination that multiple convictions are “related” is not a factual finding ; rather, it

is a determination reached by applying the Sentencing Guide lines to the facts of a case.

Therefore, following Buford, we must give “due deferen ce” to a district court’s

application of the Guidelines to the facts.

Deciding to give “due deference” to the district court’s application of § 4A1.2(a)

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(the phrases “conduct not part of the instant offense” and “[p]rior sentences imposed

in unrelated cases”) an d § 1B 1.3(a)(1 ) (the ph rase “acts an d omissions committed . .

. in the cou rse of attem pting to a void de tection or respon sibility for that offense”) does

not end the standard-of-review inquiry. The Supreme Court did not define deferential

review in Buford, so we must decide what deference is due in this case.4 Although the

circuit courts of appeals have used va rying standards to review district courts’

applications of the G uidelines,5 we will review the district court’s application of §

4A1.2 and § 1B1.3(a)(1) to the facts for clear error.

Deciding whether an ac t was co mmitted “in the cou rse of attem pting to a void

detection or responsibility for [an] offense” is almost always a question of fact. It

requires the sentencing judge to assess the defendant’s intent for committing the

additional crime. Because a district court has a “detailed understanding of the case

4
The Supreme Court did not indicate whether appellate courts should determine “what kind of
‘deference’ is ‘due,’” Buford v. United States, 532 U.S. 59, 63 (2001), based on the facts of each
particular case or whether courts should assign the appropriate standard of review according to
the particular Guidelines section applied by the district court.
5
See, e.g., United States v. Thomas, 327 F.3d 253, 257 (3d Cir. 2003) (applying clear-error
review); United States v. Goodwin, 317 F.3d 293, 297 (D.C. Cir. 2003) (describing “due
deference” as an “intermediate standard” between de novo and clear-error review); United States
v. Zats, 298 F.3d 182, 185 (3d Cir. 2002) (applying clear-error review); United States v.
Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002) (applying clear-error review); United
States v. Paul, 274 F.3d 155, 162 (5th Cir. 2001) (applying “a deferential standard of review”);
United States v. Lewis, No. 00-4313, 2001 WL 789063, at *5 (4th Cir. 2001) (per curiam)
(explaining that the reviewing court will apply clear-error review to mixed questions that are
essentially factual and de novo review if the mixed question requires consideration of legal
concepts and requires the court to “exercise judgment about the values that animate legal
principles”).

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before it” and greater experien ce in sente ncing d efendan ts, Buford, 532 U .S. at 65, it

is generally better suited to determine wheth er the add itional crim e was co mmitted “in

the course of attemp ting to av oid detec tion or re sponsib ility for [an ] offense .”

Accordingly, clear-error review is appropriate in this case.6

B. Application

Because we apply the clear-error standard, the question presented is whether the

district court clearly erred when it concluded that White’s giving a false name to a

police officer was not an act taken “in the course of attempting to avoid detection or

responsibility” for the offense of illegally being in the United States. Applying this

standard, “[w]e will not find clear error unless our review of the record leaves us ‘with

the definite and firm conviction that a mistake has been committed.’” Coggin v.

Commissioner, 71 F.3d 855, 860 (11th Cir. 1996) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 39 5 (1948)). Nevertheless, that high stan dard is m et in this

case.

At White’s sentencing hearing, the district judge briefly discussed his reason

for deciding that the state false-information conviction was not related to the federal

6
We note, however, that White pleaded guilty to the federal offense and that, as a consequence,
the sentencing judge did not possess the same level of familiarity with the facts and with White
that he would have had if White’s case had gone to trial.

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offense of being in the Un ited States illegally. H e stated tha t he wo uld “reso lve this

issue in favor of the government and against the defendant because of the factual

situation as relates to the two state charg es. It appe ars . . . that the INS had go ne to

arrest the defen dant for being illegally in this country and while arresting the

defend ant, the defendant then gave a false name and subsequently the government

searched his apartment and obtained a false I.D. which was the same as the false name

that the defen dant had given to the gov ernmen t. So, therefore, the conduct is not

relevant a nd is sep arate.” 7

The district court’s explanation for ruling that the offenses wer e unrelate d is

merely a chron ology o f what h appene d. Thes e observ ations do not allow us to make

any inferences abo ut White’s intent, which is the relevant inquiry in deciding whether

the state false-information crime was an attempt to avoid detection for the federal

crime. Furthermore, we are not persuaded by the government’s argument in support

of the district court. The government contends, “These two offenses arose from

different courses of action s.” 8 The pr incipal ba sis for this claim is that White violated

§ 1326 when he entere d the U .S. and th at “[h]is decision , once in th e United States, to

live under [a different name] is a different issue.” This argument would be convincing

7
R. 2:13:22–24 and 2:14:2–9.
8
Appellant’s br. at 9.

12
if the government had in fact indicted White of entering the U.S. in violation of

§ 1326(a), whereas the false statement to the office r occurr ed on Ju ly 9, 200 1 in

DeK alb County, Georgia—a place far from the border and at a time months after

White’s entry into the United States. The problem is that the government charged

White with “being in” the United States in violation of § 1326(b),9 and, in many

circumstances, giving false information to a police officer could constitute an action

taken to avoid detection for this o ffense. F or this rea son, the relevan t inquiry is

whether, in this particular case, White lied to the p olice offic ers in ord er to avo id

detection for being in the United States.

The facts are undisputed: White had been deported previously, and when he

returned to and remained in the United States illegally, he assume d severa l aliases. On

the day of the arrest, th e INS agents fir st identified themselv es to W hite, but W hite

refused to give them his name. When the DeK alb Cou nty officers a rrived, b ut still in

the presence of the INS agents, White gave the false name.

White’s arguments about the relevancy of these facts are convincing. He

maintains that if “he had given his true identity, his crime of being illegally in the

United States . . . would have been readily discovered”—and not only by the local

9
Additionally, during the sentencing hearing on this very matter, the government’s attorney
conceded that “what [White] is charged with is the simple fact that his body is in the United
States and it is here illegally.” R. 2:8:7–8.

13
officers but by the INS agents responsible for enforcing § 1326.10 The fact that he

initially refused to give his real name to the INS agents is strong evidence that he gave

a false name to avoid detection for violating federal immigration laws. Additionally,

White argues that it is common know ledge that illegal aliens frequently assume false

identities in order to hide their illegal status from law-enforcement officials and

employers, and he claims that his own long-term use of aliases, and his use of a fake

driver’s license, was part of a concentrated effort to avoid detection for being in the

United States illegally.

Admittedly, White’s aliases may have prevented law-enforcement officials from

linking him to other crimes, b ut, given the und isputed f acts of W hite’s enco unter w ith

the INS officers, there is little doub t that Wh ite gave a f alse nam e “to avoid detection

or responsibility for [the federal] offense.” Therefore, we conclude that the district

court clearly erred when it assessed two criminal-history points for the state false-

information conviction.

Because we resolve this issue in White’s favor, we need not address whether the

uncounseled false-info rmation conviction was presumptively void for purposes of

calculating White’s criminal history.

10
Appellant’s br. at 9.

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III. CONCLUSION

For the reasons stated, we VACA TE Wh ite’s sentence and REMA ND the case

for resen tencing c onsisten t with this opinion .

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