United States Court of Appeals,
Eleventh Circuit.
No. 95-8850.
UNITED STATES of America, Plaintiff-Appellant,
v.
Robert PHILLIPS, Defendant-Appellee.
Aug. 22, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:88-cr-569-
1), Marvin H. Shoob, Judge.
Before CARNES, Circuit Judge, and HENDERSON and GIBSON*, Senior Circuit Judges.
CARNES, Circuit Judge:
The district court has sentenced Robert Phillips three times in this case, the government has
appealed twice, and this is the third time the case has been before this Court. Technically speaking,
this appeal presents issues involving the law of the case doctrine, the career offender sentencing
guidelines, and downward departure. More broadly speaking, this is one of those cases in which the
district judge struggles against the constraints of the guidelines in order to impose what he feels is
a proper sentence, only to be reined in by the court of appeals. We do so, holding that the district
court abused its discretion in departing downward from the career offender guidelines, U.S.S.G. §
4B1.1, on grounds relating to the circumstances leading to one of the predicate offense convictions
or the leniency of the sentence imposed for that conviction.
I. FACTS AND PROCEDURAL HISTORY
After a one-day bench trial, Phillips was found guilty on eleven counts of narcotics and
firearm possession. At sentencing, the district court found that between 50 and 150 kilograms of
cocaine were attributable to Phillips, which meant a base offense level of 36. The court added two
levels for obstruction of justice and four levels for Phillips' leadership role, producing an adjusted
offense level of 42. The court calculated Phillips' criminal history category at III, resulting in a
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
guideline range of 360 months to life. The court also determined that Phillips was a career offender
under § 4B1.1(A), which corresponded to a base offense level of 37 and a criminal history category
of VI. The applicable guideline range was again 360 months to life, and the court sentenced Phillips
to 360 months, to be followed by a mandatory 60 additional months for a violation of 18 U.S.C. §
924(c), and it imposed a $50,000 fine.
Phillips appealed both his conviction and sentence. We affirmed the conviction, but
remanded for resentencing because the district court failed to address Phillips personally to ascertain
if he had any statement regarding his sentence, as required by Federal Rule of Criminal Procedure
32(a)(1)(C) (current version at Fed.R.Crim.P. 32(c)(3)(C)). See United States v. Phillips, 936 F.2d
1252 (11th Cir.1991).
On remand, the district court revisited Phillips' sentence, reducing the amount of drugs
attributable to Phillips, thereby lowering his offense level to 26. The court applied a two-level
increase for obstruction of justice, as it had the first time; but this time it applied only a two-level
increase for Phillips' role as a manager, as opposed to the four-level increase it had originally applied
for that reason. These changes resulted in an adjusted offense level of 30. The district court again
determined that Phillips was a career offender under § 4B1.1, which automatically gave him an
offense level of 37, a criminal history category of VI, and a guideline range of 360 months to life.
However, the district court did not sentence Phillips as a career offender. Instead, it departed
downward and sentenced Phillips as if he were not a career offender. Disregarding Phillips' career
offender status left him with an adjusted offense level of 30, a criminal history category of III, and
a guideline range of 121 to 151 months. The district court chose the lower end of the guideline
range and sentenced Phillips to 121 months to be followed by the mandatory 60-month sentence
required by 18 U.S.C. § 924(c). The district court explained its downward departure from the career
offender status and offense level by noting that Phillips had received a probated sentence on his
aggravated assault conviction, one of the two predicate offenses upon which his career offender
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status was based. The court did not specify what guideline, if any, authorized the downward
departure it applied.
The government appealed the sentence, and a divided panel of this Court vacated and
remanded. See United States v. Phillips, No. 93-8429, 47 F.3d 430, slip op. at 5 (11th Cir. Feb.3,
1995). The majority opinion concluded that the district court's stated ground for departure—the
probated sentence on the aggravated assault charge—was an improper basis for departure. The
majority explained that the Sentencing Commission had taken into consideration the fact that a
variety of sentences might be imposed for the same predicate offense depending upon application
of the career offender guideline. Thus, the Commission had determined that certain felony
convictions will count as predicate offenses regardless of the sentence imposed, whether it be
imprisonment or probation. See id. at 4-5. Because the Commission had already determined what
impact the type of sentence would have on the applicability of the career offender guidelines, the
majority held that Phillips' probated sentence was an inappropriate ground for a downward
departure. See id. at 5.
Judge Johnson dissented. He construed the district court's departure as actually made under
§ 5K2.0, although the district court had not specified which guideline the departure was based upon.
Judge Johnson considered any error the district court made in utilizing § 5K2.0 to be harmless,
because he thought the district court could have departed downward under § 4A1.3, which allows
for departure if the guideline sentence over-represents a defendant's past criminal history. See id.
at 6 (Johnson, J., dissenting).
On remand, the district court followed Judge Johnson's suggestion. Explicitly invoking §
4A1.3, the district court found that the career offender designation "significantly over-represents the
seriousness of defendant's criminal history." The court further explained that in view of the practices
of the Fulton County courts (where Phillips received his aggravated assault conviction) and the
circumstances surrounding his conviction, a downward departure was warranted. The district court
again departed downward and sentenced Phillips as if the career offender guidelines did not apply:
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an offense level of 30, a criminal history category of III, and a guideline range of 121 to 151 months.
The district court selected the lower end of the range, and sentenced Phillips to 121 months, to be
followed by the mandatory 60-month sentence required under § 924(c).
Thus, the district court reached the same result after being reversed as it had before. The
government appealed again, and here we are for a third time with sentencing issues in this case.
II. STANDARD OF REVIEW
We review a district court's decision to depart from the guidelines for abuse of discretion.
See Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996).
III. DISCUSSION
A. LAW OF THE CASE
The government's first argument is that the district court's downward departure was
precluded under the law of the case doctrine. The government points to several places in the latest
sentencing hearing where the district court stated that it was acting pursuant to Judge Johnson's
dissent. According to the government, those statements show "complete disregard" for the majority
opinion, which constitutes the law of the case. In response, Phillips argues that the majority panel
opinion rejected only the district court's previous reliance upon the probated sentence as a ground
for departure, leaving the district court free to depart on other grounds. Phillips contends that the
district court followed the law of the case because it did not depart based upon the probated
sentence. Instead he suggests that what the district court did was rely upon the circumstances
surrounding the conviction that led to the probated sentence. Doing that was not explicitly forbidden
by our prior opinion in this case, Phillips argues.
Phillips is trying to draw a fine line of distinction, but we do realize that both this Court's
prior opinion and the transcript of the district court's latest sentencing hearing are open to differing
interpretations. We need not choose between those competing interpretations and resolve the law
of the case issue, because on the merits of the matter the downward departure was not authorized.
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In other words, even assuming the district court's latest downward departure theory is not barred by
the law of the case doctrine, it is still wrong.
B. DOWNWARD DEPARTURE
The district court offered the following explanation for its downward departure:
[B]ased on my many years of experience in the Fulton County courts, and recognizing the
substantial case load of the criminal cases carried by those courts, and the practice of
charging the more serious offenses available for plea bargain purposes with the summary
disposition of the less serious cases by sentences of probation, and that aggravated assault
would not ordinarily result in a probated sentence, and that no arrest was made in this case
but that the officer charged the defendant with reckless conduct and aggravated assault, and
recognizing that many defendants accept plea agreements of probation rather than make
numerous appearances for trial, and this defendant, I believe, made three appearances
according to the testimony, I think it's reasonable to conclude and I find the defendant pled
guilty to the charges and accepted probation to forgo the burdens of litigation.
The government neither concedes nor contests the accuracy of the district court's findings, either as
to the practices in Fulton County courts or as to the circumstances surrounding Phillips' aggravated
assault conviction. Instead, the government contests the legal effect the district court gave those
findings by making them the basis for a downward departure.
Assuming for present purposes the accuracy of the district court's findings, we agree with
the government that they do not provide a sufficient basis for a downward departure. Parsed to its
core, the district court's explanation reveals that it departed downward for one of two reasons. The
court departed downward either because it believed for the reasons stated that Phillips had not been
guilty of the aggravated assault crime for which he had been convicted in Fulton County, or because
it believed he had received a lenient sentence for that crime. As we explain below, neither reason
is an appropriate basis for departure.
1. Departure Because Phillips Was Not Guilty of Aggravated Assault
Several times in the sentencing transcript, the district court indicated its belief that Phillips
was not guilty of the aggravated assault charge, which served as a predicate offense for his treatment
as a career offender. The court expressed its familiarity with the Fulton County "assembly-line type
of justice," whereby a court "would dispose of 20 or 30 felony cases in about ten minutes with pleas
and so forth." The court also referred to Fulton County's "practice of charging the more serious
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offenses available for plea bargain purposes with the summary disposition of the less serious cases
by sentences of probation," with apparent disregard for whether the defendant was guilty of any of
the charges.
Further reflecting its skepticism about the result in the aggravated assault case, the district
court focused on the procedural events of that case. The court mentioned three times that Phillips
was never arrested on the aggravated assault charge. On four occasions, the district court referred
to Phillips' statement that he had pleaded guilty rather than continue to make futile trips to the
courthouse. Indeed, the district court expressly found that Phillips "pled guilty to the charges and
accepted probation to forego the burdens of litigation." In effect, the district court found that
Phillips was not guilty of aggravated assault, but that he had pleaded guilty because the Fulton
County system made it easier to plead guilty than to protest his innocence.
For all intents and purposes, the district court engaged in a collateral attack on Phillips'
aggravated assault conviction. The court essentially utilized the downward departure to nullify that
conviction, based upon its determination that, under the circumstances, Phillips probably had not
been guilty of the crime for which the Fulton County court adjudged him guilty. It was error for the
district court to do that. Collateral attacks on prior convictions are allowed in federal sentencing
proceedings in one narrow circumstance only: when the conviction was obtained in violation of the
defendant's right to counsel. See Custis v. United States, 511 U.S. 485, 486-89, 114 S.Ct. 1732,
1734, 128 L.Ed.2d 517 (1994); see also United States v. Roman, 989 F.2d 1117, 1120 (11th
Cir.1993) (holding that unless a prior conviction is "presumptively void," it is not open to collateral
attack in a federal sentencing proceeding) (en banc). Neither Custis nor Roman involved a sentence
enhancement under § 4B1.1, the career offender provision. However, we have previously held that
both Custis and Roman are applicable to the determination of career offender status under § 4B1.1.
See United States v. Farris, 77 F.3d 391, 397 & n. 10 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct.
241, 136 L.Ed.2d 170 (1996). The result is that in sentencing a defendant a district court cannot
ignore or discount for any purpose a prior conviction that has not been invalidated in a prior
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proceeding, unless there was an unwaived absence of counsel in the proceedings resulting in that
conviction. See U.S.S.G. § 4A1.2 cmt. 6.
Phillips was represented by an attorney when he pleaded guilty to aggravated assault in
Fulton County, and that conviction has not been invalidated in any prior proceeding. The district
court was not free to ignore or discount the aggravated assault conviction based upon its concerns
about the Fulton County criminal justice system and its treatment of Phillips' case. Such a collateral
attack on a prior conviction is not permitted under the guidelines. Just as a district court may not
directly negate a prior conviction because of doubts about the verity of the result, it also may not do
that indirectly by departing downward because of those same doubts. If that is what the district
court did, and we think it is, the court abused its discretion.
Phillips contends that the district court did not collaterally attack the prior conviction but
instead made a permissible departure under § 4A1.3, which involves the adequacy of a defendant's
criminal history category. He argues that a district court can examine the circumstances surrounding
a conviction to determine whether "a defendant's criminal history category significantly
over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant
will commit further crimes," § 4A1.3, and depart downward on that basis where appropriate. See
id. Our cases addressing § 4A1.3 appear to have applied it to a pattern of criminal conduct, not to
an individual crime. See, e.g., United States v. Santos, 93 F.3d 761, 763 (11th Cir.1996) (affirming
upward departure based upon prior convictions that were not reflected in criminal history score),
cert. denied, --- U.S. ----, 117 S.Ct. 1437, 137 L.Ed.2d 544 (1997); United States v. Maurice, 69
F.3d 1553, 1559 (11th Cir.1995) (affirming upward departure under § 4A1.3 to take into account
nine convictions more than 10 years old); see also United States v. Adudu, 993 F.2d 821, 823 (11th
Cir.1993) (reversing where upward departure based on circumstances of current crime, not past
criminal conduct).
In any event, Phillips' argument misapprehends the focus of § 4A1.3. That guideline policy
statement is concerned with the pattern or timing of prior convictions, not with doubts about their
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validity. The proper focus is evident in the illustrative situation described in the guideline: "An
example might include the case of a defendant with two minor misdemeanor convictions close to
ten years prior to the instant offense and no other evidence of prior criminal behavior in the
intervening period." § 4A1.3. When § 4A1.3 is applied, the validity of the convictions are assumed.
A sentencing judge may not use the guideline to circumvent the rule prohibiting a collateral attack
on a prior conviction in a sentence proceeding. Section 4A1.3 does not permit what Roman and
Custis prohibit: a lower sentencing range resulting from the judge's doubts about whether the
defendant was truly guilty or fairly convicted of a prior crime. To use § 4A1.3 for that purpose is
an abuse of discretion.
2. Departure Because Phillips Received Lenient Treatment for the Aggravated Assault
Conviction
The only other reason for departing downward that might be inferred from the district court's
explanation is that Phillips had received lenient treatment for his aggravated assault conviction.
Twice, the district court noted that a probated sentence for an aggravated assault conviction was
unusual. From that, it could be inferred the district court thought that the lenient sentence that
Phillips received for his prior conviction was less serious than that imposed for similar crimes and
departed downward for that reason. Such an approach would conflict with § 4A1.3, which explains
that an upward departure may be appropriate where the defendant "had previously received an
extremely lenient sentence for a serious offense." Because the guidelines contemplate an upward
departure for prior lenient treatment, the district court abused its discretion in departing downward
for that reason, if that was the reason.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the sentence the district court imposed. The
sentencing of this defendant has been litigated long enough. All possible non-frivolous issues have
been explored and decided. Accordingly, we direct the district court to enter a sentence pursuant
to the career offender guideline, within the 360 month to life range, to be followed by the 60-month
consecutive § 924(c) sentence, and to impose any appropriate fine.
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