United States v. Smith

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 4 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 98-1188

TONY SMITH,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 96-CR-498-3-N)

Jeffrey R. Edelman, Jeffrey R. Edelman, P.C., Denver, Colorado, appearing for
Defendant-Appellant.

Martha A. Paluch, Assistant United States Attorney (Thomas R. Strickland,
United States Attorney, and Kenneth R. Buck, Assistant United States Attorney,
on the brief), Denver, Colorado, appearing for Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Defendant Tony Smith appeals his sentence of life imprisonment and

challenges the constitutionality of 18 U.S.C. § 3559(c), the federal “three strikes”
statute. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. §

1291, and affirm.

I.

A federal grand jury indicted defendant on, inter alia, one count of

aggravated bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). The

government filed an information and asked the court to consider defendant’s prior

violent felony convictions at sentencing if he was convicted of bank robbery.

Defendant’s criminal record included two prior convictions under § 2113 and two

prior state robbery convictions.

A jury found defendant guilty of all charges. At defendant’s sentencing

hearing, the government presented documentary and testimonial evidence

regarding three of defendant’s prior convictions. Defendant moved for a

continuance to gather his own evidence, and the court granted the motion. At a

renewed hearing several months later, defendant produced the affidavit of a

former co-defendant stating that defendant was not present during the crime

underlying one of his prior convictions. Defendant contested his other prior

convictions, but did not offer any evidence disputing them. The court found the

affidavit unpersuasive and sentenced defendant to life imprisonment pursuant to

18 U.S.C. § 3559(c).

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 II.

“We review de novo a sentence enhancement imposed pursuant to section

3559(c).” United States v. Romero, 122 F.3d 1334, 1342 (10th Cir. 1997). We

review challenges to the constitutionality of a statute under the same standard.

United States v. Hampshire, 95 F.3d 999, 1001 (10th Cir. 1996).

Under § 3559(c), a district court must sentence a defendant to life

imprisonment if he or she (1) is convicted in federal court of a “serious violent

felony” and (2) has been convicted on separate prior occasions of two or more

serious violent felonies in federal or state court. 18 U.S.C. § 3559(c)(1)(A).

Robbery, as defined in 18 U.S.C. § 2113, generally qualifies as a serious violent

felony. 18 U.S.C. § 3559(c)(2)(F)(i). However, § 3559 treats robbery as a non-

qualifying felony

if the defendant establishes by clear and convincing evidence that–
(i) no firearm or other dangerous weapon was used in the offense and
no threat of use of a firearm or other dangerous weapon was involved
in the offense; and
(ii) the offense did not result in death or serious bodily injury . . . to
any person.

Id. § 3559(c)(3)(A).

In this case, the district court sentenced defendant to life in prison under

§ 3559 based on his instant bank robbery conviction and his prior violent felony

convictions. On appeal, defendant contends that § 3559(c)(2)(F) violates his right

to due process by failing to place an adequate burden of proof upon the

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government. 1 He also contends that § 3559(c)(3)(A) violates due process because

it requires him to establish by clear and convincing evidence that his prior

convictions are non-qualifying felonies.

A.

Defendant maintains that the government should be required to establish his

prior convictions beyond a reasonable doubt. That contention is foreclosed by our

decision in United States v. Oberle, 136 F.3d 1414 (10th Cir.), cert. denied, 119

S. Ct. 197 (1998). In Oberle, we expressly declined to hold the government to

such a high standard of proof under § 3559(c). Id. at 1424. Instead, we held that

the government satisfied its burden when it introduced certified copies of the

defendant’s four previous convictions and the defendant offered no contradictory

proof. Id. Here, the government introduced documentary and testimonial

evidence of three of defendant’s prior convictions. Thus, the government

fulfilled its burden under § 3559(c) of proving that defendant had at least two

prior serious violent felony convictions.

Defendant correctly observes that a heightened burden of proof might be

appropriate in cases of extraordinary upward adjustments in sentences. See

United States v. Watts, 519 U.S. 148, 156 (1997) (“acknowledg[ing] a divergence

of opinion among the Circuits as to whether, in extreme circumstances, relevant

1
The statute does not specify a burden of proof.

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conduct that would dramatically increase the sentence must be based on clear and

convincing evidence”). At the time of his sentencing, defendant was 42 years old

and would have been subject to a sentencing range of approximately 27 to 32

years even without his three strikes enhancement. The enhancement therefore

was not substantial enough to qualify as dramatic or extreme. See United States

v. Segien, 114 F.3d 1014, 1019-20 (10th Cir. 1997) (upholding a three-fold

sentencing enhancement and cataloging cases in which sentences were greatly

enhanced after prior offenses were proved by a preponderance of the evidence);

United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (upholding

application of the preponderance standard in the enhancement of a sentence from

twenty years to consecutive forty-year terms).

B.

Defendant also contends that § 3559(c)(3)(A) violates due process by

shifting to him the burden of proving, by clear and convincing evidence, that he

qualifies for exemption from the three strikes sentencing enhancement. He argues

first that the statute’s burden-shifting scheme itself is unconstitutional. Second,

he claims that the burden of proof demanded by § 3559(c)(3)(A) is too high.

Section 3559(c) is a sentencing enhancement statute. Oberle, 136 F.3d at

1424. The Supreme Court has recognized that sentencing and trial are distinct

judicial phases in which different processes are due. See Watts, 519 U.S. at 155

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(noting that different standards of proof govern at trial and sentencing); Nichols

v. United States, 511 U.S. 738, 747 (1994) (recognizing that the sentencing

process is “less exacting than the process of establishing guilt”). Thus, due

process requires only that a court sentence defendant in proceedings that are

fundamentally fair. See Parke v. Raley, 506 U.S. 20, 34 (1992) (concluding that a

burden-shifting sentencing statute was not fundamentally unfair and therefore did

not violate due process); United States v. Wicks, 132 F.3d 383, 388 (7th Cir.

1997) (“[T]he [D]ue [P]rocess [C]lause requires only that [sentencing]

proceedings be fundamentally fair . . . .”).

In Parke, the Supreme Court held that Kentucky’s persistent felony

offender sentencing statute, a burden-shifting rule similar to § 3559(c)(1)(A),

“easily passes constitutional muster.” 506 U.S. at 28. Kentucky’s law provided

mandatory minimum sentences for repeat felons. Id. at 22. Under the statute,

defendants could challenge their prior convictions, id., but bore the ultimate

burden of proving those convictions invalid, id. at 31. The Court held that “even

when a collateral attack on a final conviction rests on constitutional grounds, the

presumption of regularity that attaches to final judgments makes it appropriate to

assign a proof burden to the defendant.” Id.

Furthermore, it is clear that the legislative branch may constitutionally

allocate the burden of proving an affirmative defense to the defendant. Patterson

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v. New York, 432 U.S. 197, 207-08, 210 (1977). “If Patterson allows such a

result even at the stage of the trial where guilt or innocence is decided, it follows

that due process does not prohibit the kind of affirmative defense at the

sentencing stage found in § 3559(c)(3)(A).” Wicks, 132 F.3d at 389 (rejecting a

due process challenge to the three strikes law). Under Parke, Patterson and

Wicks, we hold that the burden shifting scheme found in § 3559(c)(3)(A) does not

violate due process.

We need not reach defendant’s challenge to the weight of § 3559(c)(3)(A)’s

proof burden. Under any standard of proof, defendant cannot establish that he is

exempt from the three strikes enhancement. The government introduced evidence

of three prior convictions. Defendant produced evidence which, if believed,

would call into question only one of these prior convictions. 2 Thus, defendant

had three strikes even if the district court did not count the contested conviction.

In light of this, we will not proceed further. United States v. Kaluna, 192 F.3d

1188, 1196-98 (9th Cir. 1999) (en banc) (declining to reach the defendant’s

challenge to the burden of proof demanded by § 3559(c)(3)(A) because the

defendant would lose under any standard of proof), cert. denied, ___ S. Ct. ___

2
With respect to his other convictions, defendant did no more than
challenge the sufficiency of the government’s evidence. For purposes of §
3559(c)(3)(A), he therefore failed to carry even the minimal burden of production
upheld in Parke. See 506 U.S. at 32-33.

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(Apr. 3, 2000).

Appellant’s third motion to supplement the record and to withdraw the

second motion to supplement the record is granted.

AFFIRMED.

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