United States Court of Appeals,
Eleventh Circuit.
No. 96-4459
Non-Argument Calendar.
Steven Gregory GASS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
April 7, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (Nos. 95-6612-Civ-JAG, 91--6004-Cr-JAG), Jose
A. Gonzalez, Jr., District Judge.
Before BIRCH and CARNES, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM:
In this appeal, we will decide the following question:
whether a district court may rely on a defendant's prior conviction
and sentence, which has been set aside under the Federal Youth
Corrections Act, 18 U.S.C. § 5021 (1976) (repealed 1984) ("FYCA"),
to increase a defendant's criminal history score. We answer this
question in the affirmative.
Appellant Steven Gregory Gass ("Gass"), pled guilty to eight
counts of bank robbery in violation of 18 U.S.C. § 2113(a). Based
upon two prior bank robbery convictions and their corresponding
three criminal history points, Gass' presentence report assigned
him a criminal history category of two. At Gass' sentencing,
neither Gass nor his counsel objected to a criminal history
category of two. In accordance with the recommended criminal
history category of two and the relevant offense level, Gass fell
within a sentencing range of seventy-eight to ninety-seven months.
The district court sentenced Gass to ninety-seven months.
Gass did not appeal his sentence, but did file a pro se motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255 (1994). In the motion, Gass contends that he should not have
been assessed three criminal history points for the prior bank
robbery convictions because the FYCA set aside and "expunged" those
convictions. Without the three criminal history points, Gass
criminal history category would have been one, resulting in a
lesser sentence.
In the government's response to Gass' motion, the government
raised two reasons why Gass' motion should be denied. First, the
government argues that Gass is procedurally barred from raising the
FYCA claim because he failed to raise the claim at sentencing or on
direct appeal. Second, Gass' FYCA argument is without merit
because the prior bank robbery convictions had not been expunged,
but only set aside.
In an "amended" § 2255 motion, Gass, again pro se, added an
ineffective assistance of counsel claim to his FYCA claim. Gass
contends that his counsel was ineffective in failing to object to
the Court's consideration of his prior convictions in calculating
his criminal history category. According to Gass, he informed his
counsel several times of the FYCA and its effect on his criminal
history level, but Gass' counsel refused to raise the issue.
The Magistrate Judge, relying on United States v. Ashburn, 20
F.3d 1336, 1343 (5th Cir.), portion of opinion reinstated on
rehearing en banc, 38 F.3d 803, 807 n. 11 (5th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995)
(convictions set aside under FYCA can be considered in computing
criminal history points), issued a Report and Recommendation
recommending that Gass' motion be denied. Gass timely filed
objections to the Magistrate Judge's Report and Recommendation.
The district court overruled Gass' objections, adopted the
Magistrate Judge's Report and denied Gass' § 2255 motion. Gass
timely appealed the district court's denial.
On appeal, both Gass and the government reiterate the
arguments advanced before the Magistrate Judge and the district
court.1 In either the government's position that Gass is
procedurally barred from asserting his FYCA claim or Gass'
ineffective assistance of counsel argument, this Court must
consider whether Gass suffered any prejudice from failing to raise
the FYCA issue before the district court. United States v. Frady,
456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816
(1982) (in collateral relief case defendant must show actual
prejudice); Thompson v. Wainwright, 784 F.2d 1103, 1105 (11th
Cir.1986) (ineffective assistance of counsel case requiring
prejudice). A finding that Gass' FYCA argument is legally without
merit, would demonstrate that Gass did not suffer any prejudice and
that the district court was legally correct in denying Gass'
motion. In addition, because the issue is one of first impression
in this Circuit, we believe it warrants discussion.
1
Gass also argues that the district court erred in not
conducting an evidentiary hearing. However, because Gass' FYCA
claim is "insufficient to establish a claim for relief under
section 2255, the district court did not err in denying [his]
motion without a hearing." Cross v. United States, 893 F.2d
1287, 1292 (11th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct.
138, 112 L.Ed.2d 105 (1990).
The issue is whether a district court may rely on a
defendant's prior sentence and conviction, which has been set aside
under the FYCA, to increase a defendant's criminal history score.
Section 5021 of the FYCA states:
(a) Upon the unconditional discharge by the Commission of a
committed youth offender before the expiration of the maximum
sentence imposed upon him, the conviction shall be
automatically set aside and the Commission shall issue to the
youth offender a certificate to that effect.
18 U.S.C. § 5021(a) (1976) (repealed 1984) (emphasis added). Gass
citing U.S.S.G. § 4A1.2(j), which provides in part that
"[s]entences for expunged convictions are not counted," argues that
his prior set aside bank robbery convictions cannot be counted in
computing his criminal history score. Thus, central to our inquiry
is "whether the "set aside' language in the [F]YCA means that the
conviction is "expunged' as that term is defined in U.S.S.G. §
4A1.2(j)." United States v. Ashburn, 20 F.3d 1336, 1342 (5th
Cir.), portion of opinion reinstated on rehearing en banc, 38 F.3d
803, 807 n. 11 (5th Cir.1994) (emphasis added). In other words,
did Congress intend by utilizing the words "set aside" in § 5021(a)
of the FYCA, to have conviction records expunged under U.S.S.G. §
4A1.2(j).
In United States v. Doe, 747 F.2d 1358 (11th Cir.1984) we
addressed this very inquiry. In Doe, we held that under § 5021(a)
of the FYCA, a defendant is not entitled to have his conviction
record expunged or destroyed. Id. at 1359-40. We agree with this
statement and reaffirm our holding in Doe. Gass is not entitled to
have his prior bank robbery convictions which were set aside under
the FYCA, expunged. Section 5021's "set aside" is not synonymous
with § 4A1.2(j)'s "expungement". We note that other circuits
courts have similarly construed § 5021 and its relationship to the
sentencing statute. United States v. Nicolace, 90 F.3d 255, 258
(8th Cir.1996); United States v. Cox, 83 F.3d 336, 340 (10th
Cir.1996); United States v. Cerverizzo, 74 F.3d 629, 631 (5th
Cir.1996); United States v. Doe, 556 F.2d 391, 393 (6th Cir.1977);
but see United States v. Doe, 980 F.2d 876, 878 (3d Cir.1992);
United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir.1991).
In accordance with this Court's decision in United States v.
Doe, 747 F.2d 1358 (11th Cir.1984), we hold that a district court
may rely on a defendant's prior sentence and conviction, which has
been set aside under the FYCA, to increase a defendant's criminal
history score. As the Fifth Circuit stated in Ashburn:
The [F]YCA was designed to give the young defendant a new
lease on life. Congress determined that a spontaneous,
youthful transgression should not inhibit a person's evolution
into productive citizenship. However, this beneficient offer
of a "second chance" to the immature offender should not be
available as a shield for those whose original encounter with
the criminal world is used as a springboard to a life of
felonious conduct.
Ashburn, 20 F.3d at 1343. The district court's denial of Gass'
motion is AFFIRMED.