Federal Defenders of Eastern Washington and Idaho Blog

In advising a client regarding the entry of a plea or in preparing for sentencing, the lawyer must be careful and must obtain as much information, as in complete criminal history records as are available, as possible to avoid unintended consequences.

In United States v. Daniels, No. 08-30558 (5th Cir. November 16, 2009), Mr. Daniels was charged with conspiracy to possess with the intent to distribute more than 100 kilograms of marijuana. Daniels entered a plea of guilty and was sentenced as a career offender to 235 months in federal prison.

Under the sentencing guidelines, a career offender “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4B1.1(a). A prior felony conviction includes a conviction in federal or state court punishable for a term exceeding one year, “regardless of the actual sentence imposed.” USSG § 4B1.2 cmt. n.1.

Mr. Daniels, as one of his prior convictions, had a deferred adjudication in Texas for aggravated assault with a deadly weapon. He entered a plea of guilty to the charge but received community supervision that would allow him to seek a dismissal after three years. After three years, the dismissal was entered. As a result, Daniels argued that this “conviction” should not count toward finding him to be a career offender.

The Fifth Circuit was not persuaded. The Court stated, “sentences resulting from convictions that . . . have been vacated because of errors of law or because of subsequently discovered evidence or have been ruled constitutionally invalid are not to be counted.” However, a dismissal entered simply due to a successful completion of supervision does not invalidate the conviction. For subsequent sentencing purposes.

Relying on criminal history listed in a pre-trial services report or in other documents that do not set out “official” criminal history may lead to the conclusion that a prior has been dismissed and therefore not to be counted for scoring purposes. This could lead to disastrous consequences. Accurate and verified criminal history records should always be consulted if there is any question regarding a criminal history category or when ascertaining applicability of special sentencing adjustments such as career offender issues.

–Rick Hoffman