Court: Court of Appeals for the Seventh Circuit; December 26, 1996; Federal Appellate Court
Dennis Redding and William Perez, after pleading guilty to conspiracy to possess cocaine with intent to distribute, were each sentenced to 90 months in prison. They contested their sentences, claiming the district court improperly calculated their criminal histories under the Sentencing Guidelines. The court determined that the defendants correctly fell into Criminal History Category III, contrary to their belief of Category I.
The Presentence Investigation Reports (PSR) outlined Redding's criminal history, which included four misdemeanors resulting in a total of four criminal history points. These were: a juvenile conviction for possession of a controlled substance, an adult conviction for operating a vehicle while intoxicated, a conviction for possession of a controlled substance, and a conviction for carrying a concealed weapon. Redding's counsel argued against including the latter two as they were municipal ordinance violations, but the district court rejected this argument. Thus, the court calculated Redding's sentencing range at 135-168 months, ultimately granting the government’s motion for a downward departure to 90 months as per the plea agreement. The court affirmed the sentence, validating its interpretation of the Sentencing Guidelines.
Defendant Perez had five prior convictions, resulting in a total of six criminal history points, placing him in Criminal History Category III. This included two points for a 1993 conviction of fleeing an officer, and one point each for four juvenile convictions: a 1988 attempted theft (one year probation), possession of a dangerous weapon by a child (ten months probation), vandalism (failure to appear, $55 fine, 90-day license suspension), and assault and battery (failure to appear, $55 fine, 90-day license suspension). Perez's counsel initially objected to including the failed appearances in his criminal history but withdrew the objection after learning it would not affect his category. Perez did not file any written objections to the Presentence Report (PSR) or object during sentencing. The court ultimately sentenced Perez to ninety months in prison after a downward departure.
Defendant Redding asserted on appeal that the sentencing court improperly included a 1988 drunk driving incident and a 1993 concealed weapon charge in his criminal history, arguing they were violations of city ordinances rather than criminal convictions. Redding contended that under Wisconsin law, municipalities lack the authority to enact criminal statutes, implying these should not be counted as prior convictions. However, the court noted that prior case law in the circuit allows for local ordinance violations to be considered in criminal history calculations under the Sentencing Guidelines. Redding’s argument was viewed as overly technical, as it did not address the municipalities' authority to impose penalties or the enforcement capabilities of state courts, focusing instead on the nature of the conduct rather than its labeling.
Redding's conviction for possessing a concealed weapon qualifies as a "prior sentence" under the Guidelines, despite not being explicitly discussed by the sentencing court. The Guidelines exclude certain local ordinance violations, but not those that are also criminal offenses under state law, such as Wisconsin's prohibition against carrying a concealed weapon. Redding's argument that his conviction should not count due to a lack of representation by counsel is insufficient; the record is ambiguous regarding his legal representation, and the burden is on him to prove any constitutional error. The presumption of constitutional validity for state judicial proceedings limits his ability to challenge the conviction.
In contrast, Perez attempted to contest his criminal history calculation based on default judgments for municipal ordinance violations and a juvenile weapons possession conviction, arguing these should not count. However, he waived these arguments during his sentencing hearing by accepting the criminal history calculations, which precludes him from raising the issue on appeal. The court affirmed that both Redding and Perez were correctly sentenced under the Guidelines and their plea agreements.
