United States v. Carter

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Carter No. 02-1511

ELECTRONIC CITATION: 2004 FED App. 0187P (6th Cir.)

File Name: 04a0187p.06 STATES ATTORNEY, Detroit, Michigan, for Appellee.

Edward Carter, Pekin, Illinois, pro se.

UNITED STATES COURT OF APPEALS BOGGS, C. J., delivered the opinion of the court, in which

NORRIS, J., joined. CLAY, J. (pp. 22-30), delivered a

FOR THE SIXTH CIRCUIT separate dissenting opinion.

_________________

_________________

UNITED STATES OF AMERICA , X

OPINION

Plaintiff-Appellee, - _________________

-

- No. 02-1511

v. BOGGS, Chief Judge. Defendant, Edward Carter, a

-

> Michigan prisoner represented by counsel, appeals an

, April 12, 2002 judgment sentencing Defendant to seventy-

EDWARD CARTER , - seven months in prison for one count of being a felon in

Defendant-Appellant. - possession of a firearm, in violation of 18 U.S.C. § 922(g).

N Before the district court, Defendant pleaded guilty to the

Appeal from the United States District Court offense but conditioned his plea upon the right to appeal the

for the Eastern District of Michigan at Detroit. district court’s denial of his Motion to Suppress and the

No. 00-80692—Victoria A. Roberts, District Judge. district court’s denial of his two Motions to Reopen the

Suppression Hearing. For the reasons set forth below, we

Argued: September 19, 2003 affirm the district court’s judgment in its entirety.

Decided and Filed: June 22, 2004 BACKGROUND

Before: BOGGS, Chief Judge; and NORRIS and CLAY, The testimony of two Detroit police officers, William

Circuit Judges. Zeolla and Kevin Reed, describes the following account of

Defendant’s arrest. On August 4, 2000, at approximately

_________________ 1:23 a.m., the two testifying officers sat in a marked scout car

near the intersection of Pembroke and Shaftsbury streets in

COUNSEL Detroit, Michigan. Both officers observed a van traveling

eastbound on Pembroke. As the van turned right on

ARGUED: Suzanna Kostovski, Detroit, Michigan, for Shaftsbury from Pembroke, it disregarded a stop sign. The

Appellant. Daniel L. Lemisch, ASSISTANT UNITED police activated their vehicle’s overhead lights and attempted

STATES ATTORNEY, Detroit, Michigan, for Appellee. to stop the van.

ON BRIEF: Suzanna Kostovski, Detroit, Michigan, for

Appellant. Daniel L. Lemisch, ASSISTANT UNITED

1

No. 02-1511 United States v. Carter 3 4 United States v. Carter No. 02-1511

The van took approximately thirty seconds to stop. Neither guilty, Defendant admitted to possessing a gun in the car,

officer could see a license plate on the van as it pulled over.1 though he stated that he was not sitting on it but rather it was

While the van was pulling over, the officers observed located near him in the vehicle.

occupants of the van making movements. Officer Reed

approached the front passenger and observed the shoulder Among the other items that the police located in the vehicle

strap of a bullet-proof vest protruding from the passenger’s was a police scanner on the rear floor in the area where

shirt. In fact, the front passenger wore a vest identical to Defendant sat. The scanner was on, tuned into the Detroit

those worn by Detroit police officers, so that the strap was Police Department frequency. In addition to the two

immediately apparent to Reed as the strap of a bullet-proof handguns and the scanner, the officers found gloves, two

vest. When Reed asked him if he was wearing body armor, masks, and two walkie-talkies.

the passenger stated that he was.

On October 5, 2000, a federal grand jury indicted

Officer Reed ordered the front passenger, later identified as Defendant on one count of being a felon in possession of a

Marcellas Dunbar, to step out of the car. As Dunbar exited firearm, in violation of 18 U.S.C. § 922(g). Defendant filed

the passenger side of the van, Reed saw him make a tossing a Motion to Suppress in an attempt to exclude the evidence

motion. Reed heard a distinct “thud” from the front passenger found in the van on grounds that the officers lacked probable

area after Dunbar made the tossing motion. Officer Zeolla cause to stop the vehicle. The district court ordered a

observed a handgun drop to the floor of the vehicle as the suppression hearing, which was held before a magistrate

tossing motion was made. According to Officer Reed’s judge on January 30, 2001. Although McGruder and Dunbar

account, Dunbar was then “combative,” using vulgar testified at the hearing that they specifically remembered the

language and trying to pull away from the officer. Officer van stopping at the stop sign at Pembroke and Shaftsbury, this

Reed handcuffed Dunbar. was contrary to the testimony of the two officers. On

March 12, 2001, in his Report and Recommendation, the

Officer Zeolla then ordered the driver, later identified as magistrate judge found that McGruder and Dunbar were not

Rob McGruder,2 out of the van. Upon seeing a gun drop to credible and recommended denying Defendant’s Motion to

the floor as the front passenger exited the car, Officer Zeolla Suppress. Defendant filed timely objections to the magistrate

handcuffed McGruder. judge’s Report and Recommendation, but the district court

adopted the report’s findings and denied Defendant’s Motion

Officer Zeolla then removed Defendant, Edward Carter, to Suppress.

from the van, where he had been seated as the rear passenger.

Defendant wore a bullet-proof jacket. As Defendant exited Defendant filed a Motion to Reopen the Suppression

the vehicle, Officer Zeolla believed that he saw that Hearing, arguing that he should have the opportunity to ask

Defendant had been sitting on a handgun. When he pleaded additional questions of Special Agent Donna Averill of the

ATF, who testified for the government at the suppression

hearing. Averill had submitted an affidavit in support of the

1 federal complaint based on information she obtained from the

It was later discovered that the van had a temp orary tag, though it Detroit Police Department. According to Defendant’s

was not certain whether the tag was expired.

motion, Averill made a statement in her affidavit that

2 conflicted with the testimony of Reed and Zeolla – Averill

This individual is also referred to as Robert E lsberry, at times.

No. 02-1511 United States v. Carter 5 6 United States v. Carter No. 02-1511

had listed the location of the stop sign as being Grandville On April 17, 2002, Defendant filed a timely notice of

and Shaftsbury, not the location of the stop sign that was appeal.

reported by the officers (Shaftsbury and Pembroke). The

district court denied Defendant’s Motion to Reopen the DISCUSSION

Suppression Hearing but granted Defendant’s Motion to

Suppress certain statements that he made, due to violations of Defendant raises three issues for review on appeal: the

his Sixth Amendment rights. admissibility of the gun as evidence; the propriety of the

district court’s denial of his two Motions to Reopen the

Defendant filed a second Motion to Reopen the Suppression Hearing; and the compliance of the sentencing

Suppression Hearing.3 Defendant based this motion on the with applicable guidelines. We take these issues in order.

failure of prior counsel to call Detroit Police Sargent Herbert

Maxwell as a witness. Maxwell handled the case when Reed I

and Zeolla returned to the Detroit Police Department.

Although he was not present at the scene, Maxwell followed Defendant argues that the gun belonging to him and found

Detroit Police Department procedure and prepared an in the van by the police was inadmissible as evidence, on the

“Investigator’s Report” of the incident. Maxwell indicated grounds that there was not probable cause to stop the vehicle.

that Defendant traveled in a van with no license plate, but his

report did not mention that the van ran a stop sign. In their Officers may stop a vehicle where there is probable cause

written reports, Reed and Zeolla each indicated that the van to believe that a traffic infraction was committed. Whren v.

failed to stop at the stop sign. On November 8, 2001, the United States, 517 U.S. 806, 810 (1996) (“As a general

district court denied Defendant’s second Motion to Reopen matter, the decision to stop an automobile is reasonable where

the Suppression Hearing. the police have probable cause to believe that a traffic

violation has occurred.”) (citations omitted).

On December 3, 2001, Defendant pleaded guilty to the

offense, conditioned upon the right to appeal the district A district court’s probable cause determination potentially

court’s denial of his Motion to Suppress evidence found in the involves two steps, each subject to a different standard of

van and the court’s denial of his two Motions to Reopen the review. The first step is a determination of historical facts.

Suppression Hearing. The United States Probation Ornelas v. United States, 517 U.S. 690, 696-97 (1996). This

Department found that Defendant qualified as a “career court reviews a district court’s factual findings relating to

offender” under United States Sentencing Guidelines Manual probable cause for clear error, viewing the evidence in the

(“U.S.S.G.”) § 4B1.1. On April 11, 2001, the district court light most favorable to the government. United States v.

sentenced Defendant under the Sentencing Guidelines’ Buchanan, 72 F.3d 1217, 1223 (6th Cir. 1995). The second

“career offender” provision to seventy-seven months in prison step in the analysis is the application of the law to the facts,

followed by a three-year term of supervised release. a mixed question of law and fact that this Court reviews de

novo. Ornelas, 517 U.S. at 696-97.

The district court referred the suppression issue to a

3

Defendant used various attorneys at different stages and also chose magistrate judge for a hearing. The magistrate judge’s Report

to submit a “Pro Se App ellant Supplem ental Brief.” De fendant’s pro se and Recommendation recounts the testimony of Officers

brief fails to raise issues not co vered by his co unsel’s brief.

No. 02-1511 United States v. Carter 7 8 United States v. Carter No. 02-1511

Zeolla and Reed, stating that the van did not come to a The magistrate judge also found it “suspicious” that, in his

complete stop at the stop sign at Pembroke and Shaftsbury. interview with Averill, McGruder had become “so confused

The report describes the testimony of McGruder and Dunbar, or equivocal” about having stopped at the intersection of

the two other occupants of the vehicle besides Defendant, Grandville and Pembroke; the magistrate judge stated: “It is

stating that the vehicle did come to a full stop at the quite possible that McGruder never actually thought about

intersection. The document observes that the government stopping at Grandville and was going to claim that there was

attempted to impeach McGruder’s testimony by calling no visible stop sign at Shaftsbury.” Finally, the magistrate

Special Agent Averill to testify as to an allegedly prior judge opined:

inconsistent statement made to investigators. McGruder,

when interviewed on January 5, 2001, had allegedly stated It is . . . very hard for the Court to believe that the two

that he did not see a stop sign. Defendant had countered this sworn officers would perjure themselves, and put their

allegation with testimony from McGruder and from a federal reputations and careers in jeopardy, for what must be

investigator, indicating that McGruder’s statement made seen as a relatively minor case with no victim. . . . Mr.

about not seeing a stop sign referred to the intersection of McGruder, on the other hand, has a felony conviction for

Grandville and Pembroke (where the officers were located), fleeing and eluding, and while positively recalling that he

not to the intersection at Pembroke and Shaftsbury. fully stopped at the corner, interestingly denied seeing

any guns, masks, gloves, radios or scanner in the van . . .;

The magistrate judge, conceding that “[t]his case is the testimony of the front seat passenger, Mr. Dunbar,

difficult” because the testimony of the officers and that of regarding the circumstances of the stop was so confusing

McGruder were both “definite and clear in their differing and contradictory as to be essentially worthless . . . .

versions” of what had happened, ruled in favor of the

government on the basis of credibility determinations. The In an order adopting the magistrate judge’s credibility

magistrate judge reasoned: determinations, the district court denied Defendant’s Motion

to Suppress.

Mr. McGruder, the driver, who was not familiar with the

area . . . testified that they saw the police pull up behind The district court thus found that, as a matter of historical

them as they passed Grandville. With all of the burglar fact, the van had not stopped at the intersection of Pembroke

paraphernalia in the van, it is likely that there was a and Shaftsbury. None of the evidence relied upon by the

flurry of activity to hide the items and this would be magistrate judge – and then the district court – was

consistent with the officers’ testimony that they saw inadmissible, with the possible exception of McGruder’s

movement of the occupants in the vehicle before it felony conviction for fleeing and eluding, which was not

actually stopped. Mr. McGruder’s attention may have admissible unless the conviction was “punishable by . . .

been distracted as he came to the unfamiliar imprisonment in excess of one year under the law under

Pembroke/Shaftsbury intersection which, while it had a which the witness was convicted,” and the conviction was not

stop sign, was still somewhat of a rounded turn . . . . It more than ten years old. Fed. R. Evid. 609(a)(1) (also making

is quite possible that the van did not come to a complete the evidence subject to Rule 403), 609(b); see also Rule

stop at the corner.

No. 02-1511 United States v. Carter 9 10 United States v. Carter No. 02-1511

404(a)(3).4 Assuming, arguendo, that the evidence of (Shaftsbury and Pembroke). Defendant’s second motion was

McGruder’s prior convictions was inadmissible, then this was to reopen the suppression hearing to allow Detroit Police

the only error in the ruling – as such, there was still ample Sargent Herbert Maxwell to testify. Defendant had failed to

admissible evidence to support the finding. call Maxwell as a witness at the hearing, even though

Maxwell “Investigator’s Report” indicated that Defendant

Viewed in the light most favorable to the government, the traveled in a van with no license plate, but did not mention

officers were credible, in stating that the van did not stop at that the van ran a stop sign.

the stop sign, and the statements of McGruder and Dunbar

were not credible. The magistrate judge raised numerous We review a trial court’s ruling on a motion to reopen a

reasons for his credibility findings, only one of which – the suppression hearing for an abuse of discretion. United States

reference to prior convictions of McGruder – might be clearly v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002); United States

erroneous. There are sufficient reasons, aside from the prior v. Alexander, 948 F.2d 1002, 1003 (6th Cir. 1991).

convictions, for the credibility determinations. The district

court’s determination of historical fact, per the Report and A ruling on whether to reopen a suppression hearing is

Recommendation of the magistrate judge, withstands review governed by principles of jurisprudence that relate to

for clear error. reopening proceedings, generally. In reversing a district

court’s decision to reopen a suppression hearing, the Third

As to the second stage of the probable cause analysis, upon Circuit stated, “‘courts should be extremely reluctant to grant

de novo review there is no doubt the district court properly reopenings.’” United States v. Kithcart, 218 F.3d 213, 219-20

applied the law to the facts – i.e., if the van did not stop at the (3d Cir. 2000) (citing United States v. Blankenship, 775 F.2d

stop sign, then it is indisputable that there was probable cause 735, 740 (6th Cir. 1985)). The case quoted, Blankenship,

to believe that the van had committed a traffic infraction. involved a motion to reopen a case-in-chief. The principles

that governed the ruling on the motion to reopen a case-in-

II chief in Blankenship were cited as applicable to a motion to

reopen a suppression hearing in Kithcart. The Third Circuit

Defendant contests the district court’s denial of its two stated:

Motions to Reopen the Suppression Hearing. Defendant’s

first motion was to reopen the hearing to allow him to elicit When faced with a motion to reopen, the district court's

further testimony from Special Agent Donna Averill. Averill primary focus should be on whether the party opposing

had testified at the suppression hearing. On cross- reopening would be prejudiced if reopening is permitted.

examination, however, Defendant had not asked Averill about [Blankenship, 775 F.2d at 740]; see also 28 Charles A.

the statement in her affidavit that listed the location of the Wright & Victor J. Gold, Federal Practice And Procedure

stop sign in question at Grandville and Shaftsbury, which § 6164 (1993). However, “the trial judge must consider

conflicted with the location reported by the officers a number of factors.” Blankenship, 775 F.2d at 741

(emphasis added). Furthermore, “[t]he party moving to

reopen should provide a reasonable explanation for

4

Fleeing or eluding would not fall und er the ambit of Rule 609(a)(2), failure to present the evidence [initially].” Id. In order to

which makes admissible evidence of a conviction “if it involved properly exercise its discretion the district court must

dishonesty or false statement, regardless of the punishment.” See also evaluate that explanation and determine if it is both

609(b) (the conviction must not have been more than ten years old).

No. 02-1511 United States v. Carter 11 12 United States v. Carter No. 02-1511

reasonable, and adequate to explain why the [moving III

party] initially failed to introduce evidence that may have

been essential to meeting its burden of proof. Defendant appeals his sentencing. Defendant received a

sentence of seventy-seven months in prison followed by a

218 F.3d at 220. three-year term of supervised release, having been sentenced

as a “career offender” under U.S.S.G. § 4B1.1, which states:

Defendant presents ineffective assistance of counsel as the

reason for the failure to introduce the testimony from Averill A defendant is a career offender if (1) the defendant was

as to the affidavit and for the failure to call Maxwell as a at least eighteen years old at the time the defendant

witness. Defendant no longer retains the counsel that he had committed the instant offense of conviction; (2) the

at the suppression hearing. Defendant claims to have alerted instant offense of conviction is a felony that is either a

the prior counsel to the location of the stop sign listed in the crime of violence or a controlled substance offense; and

Averill affidavit in time for the prior counsel to have raised (3) the defendant has at least two prior felony convictions

the issue. Defendant claims that the Averill affidavit’s listing of either a crime of violence or a controlled substance

of a different location for the missed stop sign was important offense.

because the magistrate judge’s finding of probable cause

relied on assessments of the credibility of the officers. U.S.S.G. § 4B1.1(a). The dispute in the present case arises

over the third provision, stating that for a defendant to be a

Nevertheless, Defendant failed to raise the issue of “career offender,” the defendant must have a minimum “two

ineffective assistance of counsel before the district court. In prior felony convictions” of a crime of violence or a

the first motion to reopen the hearing – requesting that controlled substance offense. The applicable term is defined

Defendant be allowed to elicit testimony as to the Averill as follows:

affidavit – Defendant did not raise the issue of ineffective

counsel. In the second motion – requesting that Defendant be The term “two prior felony convictions” means (1) the

allowed to call Maxwell as a witness – Defendant refers in defendant committed the instant offense of conviction

passing to the change of counsel, but makes no argument as subsequent to sustaining at least two felony convictions

to ineffective counsel. Nor was any other reason given in of either a crime of violence or a controlled substance

either motion as to why the requested evidence had not been offense (i.e., two felony convictions of a crime of

presented at the suppression hearing. As stated in Kithcart, violence, two felony convictions of a controlled

“‘[t]he party moving to reopen should provide a reasonable substance offense, or one felony conviction of a crime of

explanation for failure to present the evidence [initially].’” violence and one felony conviction of a controlled

218 F.3d at 220 (quoting Blankenship, 775 F.2d at 741). substance offense), and (2) the sentences for at least two

Defendant presented no explanation before the district court of the aforementioned felony convictions are counted

about why he failed to present the evidence initially. Thus, separately under the provisions of § 4A1.1(a), (b), or (c).

the district court did not abuse its discretion by denying the

motions to reopen the suppression hearing. Id. § 4B1.2(c). For convictions of a defendant after he or she

reached the age of eighteen, the guidelines count “any prior

sentence of imprisonment exceeding one year and one month,

whenever imposed, that resulted in the defendant being

No. 02-1511 United States v. Carter 13 14 United States v. Carter No. 02-1511

incarcerated during any part of [the] fifteen-year period . . . Based on these facts, Defendant raised two objections to his

within fifteen years of the defendant’s commencement of the sentence. First, he challenges whether either of his two

instant offense.” Id. § 4A1.2(e)(1); see also id. § 4A1.2(e)(4) felony sentences from 1981 extended into the fifteen years

(imposing different rules for sentences imposed prior to the prior to his commencement of the present offense. Second,

defendant reaching the age of eighteen). he contends that the 1981 convictions were consolidated in

sentencing and thus “related.” Defendant raised these two

Whether sentences are counted as pertaining to separate objections in the sentencing proceeding before the district

convictions under U.S.S.G. § 4B1.2(c)(2) depends on whether court. The Presentence Investigation Report (“PSR”) rejected

they are “related” or “unrelated.” Id. § 4A1.2(a)(2) (“Prior both objections through brief written responses that were

sentences imposed in unrelated cases are to be counted submitted in the Addendum to the PSR.

separately. Prior sentences imposed in related cases are to be

treated as one sentence for purposes of § 4A1.1(a), (b), and At the sentencing hearing, the district court dismissed all of

(c) . . . .”). Defendant’s objections without explanation. (“I agree with

the conclusions reached by the Probation Department and I

Defendant contests his sentence on two grounds. Before believe that none of the objections raised are with merit.”).

examining each of these arguments, we should set forth the Defendant made at least eight objections to the PSR,

pertinent facts. As a nineteen-year-old, Defendant was including numerous objections that have not been renewed on

convicted in two legal proceedings, arising from two separate appeal. Yet the district judge adopted the PSR’s arguments

incidents. On March 2, 1981, Defendant was arrested for against each and every objection, without offering any

armed robbery and felony firearm, after having used a explanation.

handgun in robbing an individual of a purse, money, jewelry,

and a jacket on January 18, 1981. On March 4, 1981, The district court’s failure to offer explanations was a clear

Defendant was arrested, again for armed robbery and felony violation of Fed. R. Crim. P. 32(i)(3)(B). This Rule states:

firearm, based on an incident where Defendant and another

individual, while armed with handguns, robbed two other At sentencing, the court . . . must – for any disputed portion

individuals of various items (including a car, a briefcase, of the presentence report or other controverted matter – rule

checks, a purse, money, credit cards, and identification cards) on the dispute or determine that a ruling is unnecessary

on January 7, 1981. On June 7, 1984, Defendant was released either because the matter will not affect sentencing, or

on parole. On September 12, 1986, Defendant was arrested because the court will not consider the matter in sentencing.

by Detroit police and held in custody for attempted

possession with intent to deliver. On October 17, 1986, This court has made it clear on several occasions that the

Defendant was returned to custody on account of the parole district courts must be in “literal compliance” with the

violation and two new convictions for unlawfully driving requirements of Rule 32. See United States v. Corrado, 227

away an automobile and for possession with intent to deliver. F.3d 528, 540-41 (6th Cir. 2000) (explaining that “literal

On November 14, 1989, Defendant was again released on compliance” requires more than “summarily adopt[ing] the

parole. On March 8, 1990, Defendant was returned to findings of the presentence report or simply declar[ing] that

custody, based on a technical violation of parole. On April the enhancement in question was supported by a

13, 1990, Defendant was again released on parole, and was preponderance of the evidence”); see also United States v.

subsequently discharged on October 12, 1990. Osborne, 291 F.3d 908, 912 (6th Cir. 2002) (vacating

No. 02-1511 United States v. Carter 15 16 United States v. Carter No. 02-1511

sentence where district court did “nothing more than state August 4, 2000. Defendant had been incarcerated for parole

summarily that [it] was accepting the sentencing range as set violations from October 17, 1986 to November 14, 1989. All

forth in the presentence report”). of the original crimes (and the subsequent offenses leading to

the revocation of the parole) were felonies. In accordance

Our finding that the district court violated Rule 32(i)(3)(B) with U.S.S.G. § 4A1.2(e)(1), then, Defendant was clearly

is not, however, the end of the analysis. This court must also incarcerated for a felony after 1985, and thus during part of

determine whether the district court’s error was harmless. See the fifteen-year period prior to his commencement of the

United States v. Darwich, 337 F.3d 645, 666 (6th Cir. 2003) instant offense.

(applying harmless error analysis to Rule 32(i)(3)(B)); United

States v. Parrott, 148 F.3d 629, 633-34 (6th Cir. 1998) Defendant argues, based on Morrissey v. Brewer, 408 U.S.

(holding that even though the “[d]istrict [c]ourt did not fully 471 (1972), that due process entitled him to a parole

comply with Rule 32(c)(1) when it simply adopted the revocation hearing – which he never received. Under

[presentence] report,” the “error in this regard was Morrissey, due process requires that “the finding of a parole

harmless”).5 See also Fed. R. Crim. P. 52(a) (“Any error, violation be based on verified facts and that the exercise of

defect, irregularity, or variance that does not affect substantial discretion be informed by an accurate knowledge of the

rights must be disregarded.”). parolee’s behavior.” Id. at 484. However, Morrissey was a

habeas proceeding. Id. at 474. By contrast, the present due

For reasons explained below, both of Carter’s objections process challenge is made at the sentencing phase and is thus

clearly fail, and so the district court’s failure to provide impermissible. In United States v. Bonds, 48 F.3d 184, 186

specific determinations was harmless. Accordingly, (6th Cir. 1995), this court stated:

remanding the sentence would only be a waste of judicial

resources. Our conclusion, however, should in no way be The United States argues that this court’s decision in

seen as undermining the requirements of Rule 32. District United States v. McGlocklin, which allowed . . . a

courts are warned that they must continue to comply literally collateral attack at sentencing, has been superseded by

with Rule 32. We stress that, given the specific the decision of the United States Supreme Court in

circumstances in this case, the error was harmless because Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732,

Carter’s arguments cannot possibly afford him relief. 128 L.Ed.2d 517 (1994). In Custis, the Supreme Court

held that unless there has been a previous ruling that a

We now turn to each of Carter’s two objections. conviction has been ruled constitutionally invalid, or

unless the conviction has been obtained when counsel

A. Whether Defendant was Incarcerated for a Felony has not been available or provided, in violation of

During the Fifteen Years Prior to the Present Offense Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963), a collateral attack on the conviction

Pursuant to U.S.S.G. § 4A1.2(e)(1), Defendant contests is not allowed at sentencing.

having been incarcerated during the fifteen years prior to the

present offense. The present offense was committed on We agree with the United States that McGlocklin has

been superseded. As this court stated in United States v.

Smith, 36 F.3d 490, 492 (6th Cir. 1994):

5

Rule 32(c)(1) is an older version of the current Rule 32(i)(3)(B).

No. 02-1511 United States v. Carter 17 18 United States v. Carter No. 02-1511

Custis has now been decided and it holds that Prior sentences are not considered related if they were for

neither § 924(e) nor the Constitution permit a offenses that were separated by an intervening arrest (i.e.,

defendant to “collaterally attack the validity of the defendant is arrested for the first offense prior to

previous state convictions that are used to enhance committing the second offense). Otherwise, prior

his sentence under the ACCA . . . with the sole sentences are considered related if they resulted from

exception of convictions obtained in violation of the offenses that (A) occurred on the same occasion,

right to counsel.” (B) were part of a single common scheme or plan, or

(C) were consolidated for trial or sentencing . . . .

(citation omitted). In the present case, defendant is

alleging that his Boykin rights were violated, not his Id. § 4A1.2, Application Note 3. As stated earlier, the only

Gideon right to counsel. Therefore, according to Custis, possible objection (which Carter did raise) was that these

defendant cannot collaterally attack the validity of his offenses were consolidated for sentencing.

previous state conviction for robbery on the ground that

the guilty plea was unconstitutional, and the 1976 state In the sentencing proceeding, the PSR rejected this

conviction for robbery was therefore properly used to objection, based on three alternative arguments, each of

enhance his sentence. which would independently defeat Defendant’s claim: the

PSR argued that (1) there was an intervening arrest, making

In Bonds, the due process challenge at sentencing was to a the offenses unrelated under U.S.S.G. § 4A1.2, Application

conviction. That the challenge is to a parole revocation in the Note 3; (2) there was no formal consolidation order and thus

present case does nothing to distinguish it from Bonds. the offenses did not meet the criterion for consolidation in

Defendant’s argument that he was denied due process in not sentencing (and the offenses did not otherwise meet the

receiving a parole revocation hearing may not be used as a criteria for relatedness under U.S.S.G. § 4A1.2, Application

basis for challenging his sentencing. As a matter of law, Note 3); and (3) the issue is moot.6 The district judge

Defendant’s due process challenge could not possibly serve

as a basis for altering the sentence imposed by the district

court. 6

In full, the Pro bation De partm ent’s resp onse to Defendant’s

B. Whether the Past Offenses were “Related” objection to the treatment of the two prior offenses as unrelated stated:

Even though Defendant was sentenced on the same day for both

Defendant contests the determination that he had “two prior the armed robbery offenses, the Probation Department does not

felony convictions,” which made him a career offender under have any proof to verify that there was any formal order of

U.S.S.G. § 4B1.1(a). Sentences are counted as pertaining to consolidation filed with the court. The offenses explained in

separate convictions, under U.S.S.G. § 4B1.2(c)(2), if they are Paragraphs 29 and 32 were separated by an intervening arrest,

“unrelated.” Id. § 4A1.2(a)(2) (“Prior sentences imposed in and they did not occur on the same occasion and were not part

unrelated cases are to be counted separately. Prior sentences of a single common scheme or plan. Therefore they were not

related. Furthermore, even if the two armed robbery offenses

imposed in related cases are to be treated as one sentence for are considered consolidated for guidelines purpo ses, the base

purposes of § 4A1.1(a), (b), and (c) . . . .”). “Related” offense level of 24 is still applicable for the armed robb ery

sentences are defined as follows: offense(s) and the Possession With Intent to Deliver. Therefore,

the repo rt will rema in as written, and this m atter will be left to

the Court to decide.

No. 02-1511 United States v. Carter 19 20 United States v. Carter No. 02-1511

adopted the PSR’s conclusion without explanation. (“I agree was arrested and charged with the robberies at the same

with the conclusions reached by the Probation Department time; . . . made an initial appearance as to both offenses at

and I believe that none of the objections raised are with the same time; the cases were set for trial on the same date;

merit”). Any one of the three grounds raised in the PSR the same counsel represented defendant as to both offenses;

would have been dispositive. Because the district court a guilty plea was entered for each offense on the same day;

denied Defendant’s objections without explanation, we cannot and defendant was sentenced for both offenses on the same

know whether the district court relied on only one of the day with sentences to run concurrently.

PSR’s arguments (and if so, which one), or whether the

district court relied on two (and, again, if so, which two), or Id. at 614. Horn presented a more compelling case for

whether the district court accepted all three. consolidation than Carter does because the defendant in Horn

“was arrested and charged with the robberies at the same

Indeed, because there was no intervening arrest, it is time.” Id. at 614. Carter was not. He was arrested on

possible that the district court made a mistake if it relied March 2, 1981 for one of his armed robberies. Two days

solely on the first argument in dismissing the objection. later, and presumably while in custody, he was arrested for

However, even assuming the court did rely on this argument, the second robbery. There is simply no legal basis to support

its error was harmless given that Carter’s argument clearly Carter’s claim of consolidation.

fails for other reasons. United States v. Allen, 106 F.3d 695,

700 n.4 (6th Cir. 1997) (“[W]e may affirm on any grounds But even assuming, contrary to fact, that the 1981

supported by the record, even though different from the convictions were consolidated (and thus counted as one,

grounds relied on by the district court.”). rather than two, prior convictions), the issue is moot because

Carter’s 1986 conviction (attempted possession with intent to

First, this court’s recent decision in United States v. Horn, deliver), when combined with the 1981 conviction, would be

355 F.3d 610 (6th Cir. 2004), makes it clear that Carter’s sufficient to justify the sentencing enhancement. In the

prior convictions could not possibly have been consolidated objections to the PSR, Carter’s attorney explicitly conceded

for purposes of § 4A1.2. Horn states that we “must review that the 1986 conviction would qualify as a “prior felony

deferentially, that is, for clear error, the entirety of the district conviction” involving a controlled substance. She wrote:

court's determination that Horn's prior robbery convictions

were not related.” Id. at 613. Even assuming that the district [N]either of the 1981 convictions for armed robbery qualify

court clearly erred, Horn goes on to explain that “cases are Defendant for an enhancement. The only conviction that

not consolidated when offenses proceed to sentencing under qualifies is described in paragraph 36 [i.e., the 1986

separate docket numbers, cases are not factually related, and possession with intent conviction], which places Defendant

there was no order of consolidation.” Id. at 614. Carter’s two at the base level of 20. The offense referenced in paragraph

convictions proceeded under different docket numbers, 41 [simple possession] does not qualify as a prior

resulted from unrelated crimes separated by eleven days, and controlled substance conviction since it was simple

lacked an order of consolidation. possession and did not involve the intent to manufacture,

import, export, distribute, or dispense.

In Horn, we declined to find that the convictions were

consolidated even though the defendant: The clear statement is that the 1986 conviction (in

paragraph 36) did qualify as a prior controlled substance

No. 02-1511 United States v. Carter 21 22 United States v. Carter No. 02-1511

conviction. Therefore, even if the 1981 convictions were _______________

related, that single prior felony conviction must be combined

with the 1986 conviction. Combining these two convictions DISSENT

makes it clear that Carter had two prior felony convictions _______________

within the relevant time period, which makes the

consolidation issue moot. CLAY, Circuit Judge, dissenting. On appeal, Defendant

renews his objection, made originally at sentencing, to the

Carter’s arguments cannot possibly succeed. The district Probation Department’s assessment that Defendant had two

court’s error was thus harmless, and remand would only be a prior unrelated felony convictions. Pursuant to Federal Rule

waste of judicial resources. of Criminal Procedure 32, the district court was required to

rule on this matter, but the district court failed to comply with

CONCLUSION this rule. As a result, the case is required to be remanded for

a ruling by the district court on Defendant’s objection.

For the foregoing reasons, we AFFIRM the judgment of

the district court as to Carter’s conviction and sentencing. At sentencing, Defendant objected to the Probation

Department’s finding that there were two prior unrelated

felony convictions. Defendant argued that two prior felony

convictions for offenses committed in January 1981 were

consolidated for sentencing and thus were related under

U.S.S.G. § 4A1.2, Application Note 3(C). The district court

denied the objection, along with seven other objections,1

without ever addressing any of the objections individually.

The district court’s entire consideration of all eight objections

consisted of a single statement summarily adopting the

presentence report: “. . . I agree with the conclusions reached

by the Probation Department and I believe that none of the

objections raised are with merit . . . .” (J.A. at 316.)

The district court’s failure to address Defendant’s

objections violated Federal Rule of Criminal Procedure 32,

which states,

At sentencing, the court . . . must–for any disputed

portion of the presentence report or other controverted

1

None of the other objections are renewed on app eal. Thus, the case

should be remanded but only for a ruling on the issue presented before

this Court–the question of whether there were two prior related felony

convictions.

No. 02-1511 United States v. Carter 23 24 United States v. Carter No. 02-1511

matter–rule on the dispute or determine that a ruling is relied solely on the presentence report; this Court remanded,

unnecessary either because the matter will not affect requiring “literal compliance” with Rule 32:

sentencing, or because the court will not consider the

matter in sentencing. The Federal Rules of Criminal Procedure provide that,

for each sentencing matter controverted,

Fed. R. Crim. P. 32(i)(3)(B). In requiring the district court to

“rule” on all disputed matters, Rule 32 does not define what the court must make either a finding on the

is required by the term “rule”–Rule 32 never specifies allegation or a determination that no finding is

precisely what level of depth or explanation is required from necessary because the controverted matter will not

the district court. Thus, it is conceivable that in certain cases be taken into account in, or will not affect,

there might be uncertainty as to whether a district court’s sentencing. A written record of these findings and

terse explanation for denying an objection would satisfy Rule determinations must be appended to any copy of the

32. presentence report made available to the Bureau of

Prisons.

However, such theoretical questions regarding the level of

depth needed to constitute a ruling are unnecessary for the Fed. R. Crim. P. 32(c)(1).[2] This court has required

purposes of deciding the present case. This Court has held “literal compliance” with this provision, stating that it

that a district court’s blanket reliance on the presentence “helps to ensure that defendants are sentenced on the

report–as occurred in the present case–does not constitute a basis of accurate information and provides a clear record

“ruling.” United States v. Darwich, 337 F.3d 645, 667 (6th for appellate courts, prison officials, and administrative

Cir. 2003) (“exclusive reliance on the PSR when a matter is agencies who may later be involved in the case.” United

in dispute cannot be considered a ruling.”). See also United States v. Tackett, 113 F.3d 603, 613-14 (6th Cir. 1997).

States v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002)

(“Because the purpose of the rule is to ensure that sentencing In the present case, the district court did not comply with

is based on reliable facts found by the court itself after the requirements of Rule 32(c)(1). Both Corrado and

deliberation, a court may not merely summarily adopt the Tocco objected to several findings in the presentence

factual findings in the presentence report or simply declare report, including the leadership role of the defendants,

that the facts are supported by a preponderance of the the finding of a conspiracy to murder Bowman, and the

evidence. United States v. Corrado, 227 F.3d 528, 540 (6th determination that Corrado was armed at the time that the

Cir. 2000); United States v. Tackett, 113 F.3d 603, 613 (6th defendants extorted money from Sophiea. The district

Cir. 1997).”). Indisputably, the district court violated Rule court did not set out findings as to any of these issues at

32, in the present case.

Established precedent in this Circuit makes clear that a 2

This provision fro m the fo rmer Rule 32(c)(1) is now found in Rule

remand is required where the district court has violated Rule 32(i)(3). See, e.g., United States v. M ontgo mery, 2003 U.S. App. LEX IS

32 by relying solely on the presentence report. In United 21950, at *2, *2 n.1 (10th Cir. Oct. 27, 2003) (“Mo ntgomery ap peals,

States v. Corrado, 227 F.3d 528 (6th Cir. 2000), and arguing that the trial judge should have disqualified himself, erred by

predecessor cases cited in Corrado, the district court had departing upward, and erred by failing to comply with Federal Rule of

Criminal Procedure 32(i)(3). . . . Formerly this provision was contained

in Fed. R. Crim. P. 32(c).”).

No. 02-1511 United States v. Carter 25 26 United States v. Carter No. 02-1511

sentencing. Instead, it either summarily adopted the the presentence report held Osborne responsible for

findings of the presentence report or simply declared that distr ibuti n g a p p r o x i m ately 24 grams of

the enhancement in question was supported by a methamphetamine. Osborne challenged this finding

preponderance of the evidence. . . . before the district court . . . . The district judge did

nothing more than state summarily that he was accepting

In Tackett, the defendants similarly objected to their the sentencing range as set forth in the presentence

sentences on the ground that the district court made no report. Because this is clearly insufficient to comply

findings as to contested issues of fact. After listening to with Rule 32(c)(1), we must vacate James Carl Osborne's

counsels’ arguments regarding an enhancement for sentence and remand his case to the district court for

obstruction of justice, the district judge “stated simply re-sentencing.

that ‘the court adopts the factual findings and guideline

applications in the presentence report.’” Tackett, 113 See also id. at 911 (explaining that “literal compliance” is

F.3d at 614 (second alteration in original). This court required) (citing Corrado and Tackett). Inexplicably, in his

concluded that “this is a far cry from the making of a majority opinion in the present case, Judge Boggs has now

finding for each matter controverted, as the plain departed from the binding precedent that was established by

language of Rule 32 requires,” and remanded for his own Osborne opinion and the Corrado and Tackett cases

resentencing. Id.; see also United States v. Monus, 128 that he cited in Osborne.

F.3d 376, 396 (6th Cir. 1997) (“The law in this circuit

clearly prohibits a court faced with a dispute over Of course, Judge Boggs’ opinion does not expressly admit

sentencing factors from adopting the factual findings of that it violates the “literal compliance” doctrine; rather, the

the presentence report without making factual opinion attempts to rely upon “harmless” error analysis.

determinations of its own.”); United States v. Mandell, According to the majority opinion, the Rule 32 violation was

905 F.2d 970, 974 (6th Cir. 1990) (holding that a district “harmless” because the two 1981 convictions could not

court's sentence that simply adopted the findings of the possibly have been consolidated for sentencing, and because

presentence report as to controverted factual matters the 1986 conviction would be a second conviction, even if the

violated Rule 32). two 1981 convictions were consolidated. Yet the majority’s

argument is not relevant to the applicable legal standard. The

We therefore conclude that Corrado and Tocco must be “harmless” error exception to the “literal compliance”

resentenced in compliance with the requirements of Rule doctrine applies only where the controverted matter is

32. Without a record of the district court’s findings, we immaterial–i.e., where the sentence would have been

are unable to conduct a meaningful review of its identical, even if the controverted matter had been decided to

determinations as to the base offense level and specific the contrary. As stated in United States v. Darwich, 337 F.3d

enhancements that it imposed upon the defendants. 645, 666 (6th Cir. 2003), regarding the replacement of Rule

32(c) with Rule 32(i)(3)(B):

Id. at 540-41.

This new rule attempts to eliminate confusion over

In United States v. Osborne, 291 F.3d 908, 912 (6th Cir. whether courts were required to make rulings on every

2002), Judge Boggs himself authored an opinion reaffirming objection to the PSR or only those that have the potential

the “literal compliance” doctrine, stating, to affect the sentence. Fed. R. Crim. P. 32(i)(3) advisory

No. 02-1511 United States v. Carter 27 28 United States v. Carter No. 02-1511

committee's note (2002). The new rule makes clear that (“the district court did not issue a ruling on the disputed

controverted matters at sentencing only require a ruling matter of whether Darwich’s illegal drug activity was

if the disputed matter will affect the eventual sentence. extensive or involved more than five individuals”). The

district court’s failure to specify which of the two

In the present case, there is no question that the disputed explanations had justified the enhancement meant that the

issue (of whether the prior convictions were related) would district court’s decision was ambiguous and unclear.

affect the sentence. Two prior unrelated felony convictions

were needed to establish the offense level under which In the present case, the district court’s decision was

Defendant was sentenced. See U.S.S.G. § 2K2.1(a)(2) (the similarly ambiguous and unclear. Defendant disputed the

offense level is “24, if the defendant committed any part of finding that there had been two prior unrelated convictions;

the instant offense subsequent to sustaining at least two Defendant argued that two prior (state court) felony

felony convictions of either a crime of violence or a convictions for offenses committed on January 7, 1981 and

controlled substance offense.”); id. § 4A1.2(a)(2) (“Prior January 18, 1981 were consolidated for sentencing and were

sentences imposed in unrelated cases are to be counted thus related, under U.S.S.G. § 4A1.2, Application Note 3(C).

separately. Prior sentences imposed in related cases are to be The Probation Department presented three independent,

treated as one sentence for purposes of § 4A1.1(a), (b), and alternative grounds denying the objection, arguing that (1) the

(c). . . .”); id. § 4B1.2(c)(2) (“The term ‘two prior felony January 1981 offenses were unrelated (under U.S.S.G.

convictions’ means . . . the sentences for at least two of the § 4A1.2, Application Note 3), because there was an

aforementioned felony convictions are counted separately intervening arrest; (2) there was no formal consolidation order

under the provisions of § 4A1.1(a), (b), or (c).”); United and thus the two January 1981 offenses did not meet the

States v. Charles, 209 F.3d 1088, 1090 (8th Cir. 2000) criterion for consolidation in sentencing (and the offenses did

(calculating offense level, under § 2K2.1(a), by applying the not otherwise meet the criteria for relatedness under U.S.S.G.

definition of a single felony offense from § 4B1.2(c)). The § 4A1.2, Application Note 3); and (3) the issue was moot,

controverted matter was not immaterial; thus, the district because a base offense level of 24 would have applied, even

court was required to rule on the matter. if the prior offenses had been related. In denying Defendant’s

objection, without explanation, the district court never stated

The district court’s failure to rule on the objection makes which of the three independent arguments it was relying

the present case indistinguishable from Darwich, in which the upon; compliance with Rule 32 avoids the type of confusion

Court recited the “harmless” error standard, 337 F.3d at 666, that has resulted in the present case, where it is impossible to

but concluded that the error was not “harmless” and ascertain which argument(s) the district court relied upon.

remanded, for a ruling on the disputed matter. Id. at 667. In The district court’s failure to specify which of the alternative

Darwich, the district court had failed to specify whether an grounds it was relying upon was identical to the situation in

enhancement under U.S.S.G. § 3B1.1(a) was for a leadership Darwich, where the error was not “harmless.”

role in criminal activity or, alternatively, was for otherwise

extensive involvement in criminal activity. 337 F.3d at 666 To further illustrate how the majority has misconstrued

(“U.S.S.G. § 3B1.1(a) provides that a defendant's sentence “harmless” error analysis, the present case can be contrasted

can be enhanced by four levels ‘if the defendant was an with a case in which a Rule 32 infraction was properly

organizer or leader of a criminal activity that involved five or deemed “harmless.” In United States v. Parrott,148 F.3d 629

more participants or was otherwise extensive.’”); id. at 667 (6th Cir. 1998), the defendant “contended generally that there

No. 02-1511 United States v. Carter 29 30 United States v. Carter No. 02-1511

was no evidence to support the § 2T1.3(b)(1) enhancement,” The majority has attempted to rationalize its violation of the

because there was no evidence that an offense occurred, or law of this Circuit as an attempt to avoid “a waste of judicial

was charged, as the enhancement required. Id. at 633. The resources.” Even if the majority’s decision truly were the

district court disposed of this matter by making a clear legal most efficient course of action, nonetheless, it goes without

conclusion that was supported with a factual finding: “[t]he saying that this Court is not free to violate binding case law

court asserted that the government had proved by a in the name of efficiency. This panel is not free to abandon

preponderance of the evidence that Parrott’s conduct violated the “literal compliance” doctrine that this Court has

Tennessee’s statute for theft of property.” Id. However, this previously adopted. Turker v. Ohio Dep’t of Rehab. &

Court determined that there was a violation of Rule 32, Corrs., 157 F.3d 453, 457 (6th Cir. 1998) (“a panel of this

because the district court “did not make independent findings Court cannot overrule the decision of another panel.”)

with respect to the elements of the offense.” Id. Yet this (citations and internal quotation marks omitted).

Court made clear that the district court had not committed a

blanket, wholesale violation of Rule 32 but, rather, only a In addition, even if the majority were not violating binding

partial infraction. Id. (“the District Court did not fully comply law on this issue, the efficiency argument would be

with Rule 32(c)(1)”) (emphasis added). The partial error was unpersuasive. In Buford, the Supreme Court explained that a

immaterial, because the defendant had admitted, at a plea district court’s experience and expertise in sentencing issues

hearing, to having a prior offense that would support the place the district court in the best position to make the

enhancement. Id. at 634 (“Parrott’s plea of guilty to filing a determination of whether there was consolidation for

false tax return for the year 1990 . . . constitutes an admission sentencing. 532 U.S. at 64 (“the district court is in a better

. . . . In sum, although the District Court technically erred by position than the appellate court to decide whether a particular

adopting the challenged paragraph of the presentence report set of individual circumstances demonstrates ‘functional

in support of the § 2T1.3(b)(1) enhancement, the error was consolidation.’ That is so because a district judge sees many

harmless in light of Parrott’s own admissions at the plea more ‘consolidations’ than does an appellate judge.”); id. at

hearing.”). 66 (citing “the comparatively greater expertise of the District

Court” in matters of consolidation for sentencing).

In Parrott, this Court simply examined the factual record, Undoubtedly, the district court’s greater experience and

to determine if the district court’s clear legal conclusion was expertise in sentencing allow the district court to rule on

supported. There was no suggestion that the appeals court issues such as consolidation with far greater efficiency than

would have been free to substitute its own legal conclusion if this Court can in adjudicating such issues. The true “waste of

the district court had completely disregarded Rule 32, by not judicial resources” occurs when this Court attempts to

issuing any legal conclusion whatsoever, on a disputed speculate in areas that lie squarely within the district court’s

matter. Parrott in no way contradicted Darwich’s holding expertise, instead of simply remanding for an initial ruling by

that where the district court summarily adopts the presentence the district court. The most efficient course of action would

report’s conclusion on a disputed matter, a remand is required have been to remand–not coincidentally, that is the outcome

under Rule 32. Thus, it is beyond question that the law of this that is required by Rule 32 and the “literal compliance”

Circuit, as established by the cases set forth above, requires doctrine.

a remand in the present case, because the district

court summarily adopted the presentence report on the For the aforementioned reasons, I respectfully dissent.

disputed issue of prior related offenses.