United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2002 Decided December 27, 2002
No. 01-3137
United States of America,
Appellee
v.
Ronald T. Clipper,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00380-01)
David W. Bos, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender. Robert L. Tucker, Assis-
tant Federal Public Defender, entered an appearance.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief was Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth Tros-
man, and Wan J. Kim, Assistant U.S. Attorneys.
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: Ronald Clipper pleaded
guilty in May 2001 to unlawful possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C.
s 922(g)(1). The Sentencing Guidelines calculation yielded a
range of 57-71 months, and the district court sentenced him
at the very top of the range, noting Clipper's "dangerousness,
his recklessness, his irresponsibility." The Guidelines range
was significantly affected by several prior felony convictions,
but one of them--his 1991 conviction for possession of crack
cocaine with intent to distribute--was very likely in violation
of the Fourth Amendment as interpreted by the Supreme
Court years after that conviction became final. Clipper asked
the district court to exclude that conviction from his present
sentence calculations, but that option is plainly foreclosed by
the Guidelines, and Clipper does not pursue it on appeal.
Rather, he presses two fallback arguments: first, that the
district court should have given him a downward departure to
mitigate the effect of the 1991 conviction; and second, that
the changed outlook on that conviction called for a downward
departure for time "erroneously" served.
The district court rejected both arguments, and we agree.
The Sentencing Guidelines clearly set forth the conditions
under which a prior conviction may be discounted in sentenc-
ing calculations--conditions that Clipper's 1991 conviction
indisputably does not meet. Clipper reasons that the Guide-
lines' foreclosure of any direct exclusion of the 1991 conviction
naturally opens the door to a departure; this is unsound. If
correct, it would tend to make every explicit Guidelines
provision an invitation for courts to do the opposite. Similar-
ly, because the 1991 conviction has not been vacated, over-
turned, or set aside, Clipper has not served time in jail
erroneously and is not entitled to a downward departure on
that score. We affirm the district court in all respects.
* * *
We review the district court's departure decision for abuse
of discretion. Koon v. United States, 518 U.S. 81, 99-100
(1996). But the decision "whether a factor is a permissible
basis for departure under any circumstances is a question of
law." Id. at 100. On that point, therefore, there is no
deference to the district court. Id.
Clipper's 1991 conviction arose from an anonymous call to
the police that a person meeting a particular description and
walking in the area of a specified intersection was armed with
a gun. United States v. Clipper, 973 F.2d 944, 946 (D.C. Cir.
1992). Officers responded to the tip and saw Clipper, who
matched the description given by the caller. After a brief
chase, they stopped and frisked him, finding a thick wad of
currency and a bag of crack cocaine.
Clipper moved to suppress the money and drugs, arguing
that the officers didn't have the reasonable suspicion required
for a stop under Terry v. Ohio, 392 U.S. 1 (1968). The
district court denied the motion and the jury convicted.
Clipper appealed and we upheld the stop. Applying the
"totality of the circumstances" test set forth in Alabama v.
White, 496 U.S. 325 (1990), and stressing the tipster's claim
that the person possessed a gun, we held that the circum-
stances under which White permitted a stop included instanc-
es where an anonymous tip did not state predictive facts but
did provide "the police with verifiable facts while alerting
them to an imminent danger that the police cannot ignore
except at risk to their personal or the public's safety." Clip-
per, 973 F.2d at 949-50. The Supreme Court denied certiora-
ri. Clipper v. United States, 506 U.S. 1070 (1993).
In Florida v. J.L., 529 U.S. 266 (2000), however, the Court
resolved a judicial split on the issue, identifying Clipper as
one of the dividing cases. Id. at 269. The Court held that an
anonymous tip that a person is carrying a gun is not, without
more, sufficient to justify a police officer's stop and frisk of
that person. Although Florida v. J.L. did not reverse, va-
cate, or set aside Clipper's conviction, or even explicitly
disapprove Clipper, both parties agreed at argument that for
purposes of this case the officers' stop of Clipper should be
assumed to be unconstitutional under Florida v. J.L.
In his 2001 sentencing Clipper's 1991 conviction affected
the Guidelines calculation both of his "base offense" level (see
U.S.S.G. s 2K2.1(a)) and his criminal history category (see
U.S.S.G. s 4A1.2). The upshot was to increase his sentencing
range from 30-37 months to 57-71 months.
* * *
Clipper's request for a downward departure depends on
whether he cites factors that were "not adequately taken into
consideration" by the Sentencing Commission. U.S.S.G.
s 5K2.0. Thus, although Clipper has decided not to appeal
the district court's rejection of his claim that the Guidelines
authorized exclusion of his 1991 conviction, our analysis must
begin with this issue. In the criminal history context, the
commentary to U.S.S.G. s 4A1.2 says:
6. Reversed, Vacated, or Invalidated Convictions. Sen-
tences resulting from convictions that (A) have been
reversed or vacated because of errors of law or
because of subsequently discovered evidence exoner-
ating the defendant, or (B) have been ruled constitu-
tionally invalid in a prior case are not to be counted.
With respect to the current sentencing proceeding,
this guideline and commentary do not confer upon
the defendant any right to attack collaterally a prior
conviction or sentence beyond any such rights other-
wise recognized in law (e.g., 21 U.S.C. s 851 express-
ly provides that a defendant may collaterally attack
certain prior convictions).
U.S.S.G. s 4A1.2 (Application Note 6). For purposes of
counting convictions for the base offense level, U.S.S.G.
s 2K2.1 incorporates the standards of s 4A1.2. See U.S.S.G.
s 2K2.1 (Application Note 15). Thus Application Note 6 to
s 4A1.2 controls the inquiry for both of the ways in which the
1991 conviction raised Clipper's sentencing range.
As Clipper's 1991 conviction has not been reversed, vacat-
ed, or ruled constitutionally invalid, it plainly doesn't fall
within the class of convictions whose sentences are "not to be
counted." The Guidelines' effort to limit the issues available
in a recidivist sentencing is in accord with the Supreme
Court's approach. In Custis v. United States, 511 U.S. 485
(1994), it held that in a sentencing under the Armed Career
Criminal Act of 1984, 18 U.S.C. s 924(e), a defendant had no
right to collaterally attack a prior state conviction used for
sentencing enhancement--with a narrow exception for convic-
tions obtained in a proceeding in which the accused was not
represented by counsel and had not competently and intelli-
gently waived the right to counsel. See id. at 487, 493-96.
In Daniels v. United States, 532 U.S. 374, 382 (2001), the
Court extended the rule to a challenge under 18 U.S.C.
s 2255 to a sentence enhanced under s 924(e) by a prior state
conviction. The Court was explicit that this raised no consti-
tutional problems. Custis, 511 U.S. at 493-97; Daniels, 532
U.S. at 383. Of course a prisoner adversely affected by a
prior sentence may pursue whatever avenues of collateral
relief remain open to him, and then ask the later sentencing
court to reopen the sentence. Id. at 382. But the later
sentencing does not open any doors that are otherwise closed:
"If ... a prior conviction used to enhance a federal sentence
is no longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while
they were available (or because defendant did so unsuccess-
fully), then that defendant is without recourse." Id.
The second sentence of Application Note 6 says that the
Guidelines "do not confer upon the defendant any right to
attack collaterally a prior conviction or sentence beyond any
such rights otherwise recognized in law (e.g., 21 U.S.C. s 851
expressly provides that a defendant may collaterally attack
certain prior convictions)." There is an ambiguity here that
we need not resolve. The decision in Custis makes clear that
a defendant being sentenced under s 924(e) may not use the
occasion to bring even a collateral attack that is still open to
him; he must bring that separately and if successful return to
the court that sentenced him as a recidivist. The parties
have not briefed and we need not decide whether Application
Note 6 or 18 U.S.C. s 922(g)(1) embodies any restriction like
that found in s 924(e). Here, Clipper could not obtain collat-
eral relief for his claim in any forum because it rests solely on
the Fourth Amendment and he was afforded a full and fair
opportunity to litigate the claim in federal court. See Stone
v. Powell, 428 U.S. 465, 481-82 (1976).
Clipper accordingly recognizes that the Guidelines them-
selves leave no direct basis for excluding the 1991 conviction
from his sentencing calculation. Instead he seeks a downward
departure under U.S.S.G. s 5K2.0, which reads in relevant
part:
Under 18 U.S.C. s 3553(b), the sentencing court may
impose a sentence outside the range established by the
applicable guidelines, if the court finds "that there exists
an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that
described."
U.S.S.G. s 5K2.0. Clipper argues that the Sentencing Com-
mission did not take into consideration the situation of a
defendant facing the Guidelines repercussions of a conviction
that would be unconstitutional if it occurred at the time of
sentencing but that is not subject to collateral attack outside
the recidivist sentencing.
But Application Note 6 represents the Sentencing Commis-
sion's express "consideration" of the types of convictions that
are to be disregarded in calculations of criminal history--ones
that have been "reversed," "vacated," or "ruled constitutional-
ly invalid in a prior proceeding." Id. That Clipper cannot
satisfy this test does not make his circumstance one that the
Commission failed to consider. A clearly drawn line is not a
failure to consider cases that fall on the wrong side of the
line. Doubtless the Commission understood that some invalid
convictions were beyond collateral attack. Stone v. Powell
itself, for example, was decided in 1976.
Clipper suggests, however, that in 1993 when the Sentenc-
ing Commission last amended Application Note 6 it could not
have been aware of two later legal developments which he
sees as restricting his ability to challenge the 1991 conviction:
the Supreme Court's decision in Custis, and Congress's pas-
sage of the Anti-terrorism and Effective Death Penalty Act of
1996, amending 28 U.S.C. s 2255 to impose a one-year statute
of limitations on federal habeas corpus relief. As a general
matter it seems to us improbable that the Commission could
have been blind to the fact that the Supreme Court decides
cases and that Congress occasionally legislates in relation to
collateral attack, thereby making authoritative resolutions of
the competing interests that are implicated by such attacks.
Application Note 6 appears simply to accept that process,
refraining from "confer[ing] ... any right to attack collateral-
ly a prior conviction or sentence beyond any such rights
otherwise recognized by law." But in any event, as we've
explained, Stone v. Powell already foreclosed Clipper from
challenging his 1991 conviction, and the changes to which he
points had no bearing on his case. It would mischievously
upset the Commission's rules to suppose that their application
to persons so situated had not been "taken into consider-
ation."
Clipper's argument that he is entitled to the possibility of a
departure for time served "erroneously" under his 1991 con-
viction is no stronger. The two cases he relies upon, United
States v. Romualdi, 101 F.3d 971 (3d Cir. 1996), and United
States v. Miller, 991 F.2d 552 (9th Cir. 1993), each involved
time served under a sentence for the same conviction that
had been vacated by the court of appeals. See Romualdi,
101 F.3d at 977; Miller, 991 F.2d at 554. Given the statute
providing a credit for time served, see 18 U.S.C. s 3585, it is
not altogether clear why a departure was necessary in these
cases, but in any event they plainly do not advance his claim.
Finally, we reject Clipper's argument that his first two
arguments together constitute a combination of factors that
warrants departure. As stated above, neither of these argu-
ments has merit on its own; zero plus zero equals zero.
The judgment of the district court is
Affirmed.