Career offender case shows need for careful scrutiny

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A recent decision by Judge Lynn Adelman demonstrates the need for attorneys to carefully consider whether prior convictions really count in determining whether a defendant is a career offender under U.S. Sentencing Guideline 4B1.1.

In a footnote to the May 16 opinion, Judge Adelman speculated, “This case demonstrated how the complexity of the career offender guideline can flummox even the shrewdest lawyers and probation officers, with potentially dramatic consequences. Defendant faced a guideline sentence more than three times longer under the career offender provision. One wonders how many prisoners languish behind bars for years under an improper career offender designation.”

Derek Seib pleaded guilty to conspiracy to distribute MDMA (ecstasy), and the probation office prepared a pre-sentence report.

The PSR concluded that Seib qualified as a career offender based on prior drug-related convictions.

However, Judge Adelman found that Seib was not, in fact, a career offender.

A defendant qualifies as a career offender if, among other requirements not in dispute, he has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Seib had two prior convictions for delivery of cocaine, both occurring when he was 17 years of age. At the time of the instant offense, he was 25.

The comments to U.S.S.G. 4B1.2 state that, for a conviction to count as a career offender predicate, it must score criminal history points under 4A1.1.

For offenses committed before a defendant turned 18 years of age, 4A1.2(d) provides the following criminal history points:

(1) If the defendant was convicted as an adult and received a sentence of
imprisonment exceeding one year and one month, add 3 points under sec. 4A1.1(a)
for each such sentence.

(2) In any other case,

(A) add 2 points under sec. 4A1.1(b) for each adult or juvenile sentence to
confinement of at least sixty days if the defendant was released from such
confinement within five years of his commencement of the instant offense;

(B) add 1 point under sec. 4A1.1(c) for each adult or juvenile sentence imposed
within five years of the defendant’s commencement of the instant offense not
covered in (A).

In Seid’s case, the cocaine convictions did not result in any criminal history points, because the sentences were to probation rather than jail, and they were imposed more than five years before the offense in the case at bar.

As a result, the court held they could not be used as career offender predicates, either.

The resulting guideline range, after other factors were considered, was 24-30 months, and the court imposed a sentence of 24 months.

Analysis

Judge Adelman wonders how many prisoners are improperly serving sentences as career offenders, and it may be quite a lot.

The provision on which he relies to conclude that Seib was not a career offender is not one that has generated much notice.

The sole statutory authority for the holding is comment 3 to U.S.S.G. 4B1.2, which provides in its entirety, “The provisions of sec. 4A1.2 (Definitions and Instructions for Computing Criminal History)) are applicable to the counting of convictions under sec. 4B1.1.”

As for court precedent that a conviction must score criminal history points in order to qualify as a career offender predicate, Adelman did not cite any Seventh Circuit cases.

Instead, he cited two Fourth Circuit cases. U.S. v. Mason, 284 F.3d 555, 558-59 (4th Cir. 2002); U.S. v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996).

There does not appear to be any binding precedent in the Seventh Circuit on this issue.

A recent unpublished decision provides some authority, but it is suspect.

In U.S. v. McGee, 216 Fed.Appx. 580, 581-82, 2007 WL 528834 (7th Cir., Feb. 14, 2007), the court wrote as follows:

“To qualify as a career offender, a defendant must have two or more felony convictions for either a crime of violence or a controlled substance offense, and those convictions must be recent enough to yield criminal history points. See U.S.S.G. secs. 4B1.1(a), 4B1.2(c); United States v. Thigpen, 456 F.3d 766, 769 (7th Cir. 2006).

However, Thigpen, which is binding authority, states no such thing. Page 769 of the opinion can be read in vain for any statement that a predicate offense must yield criminal history points.

Which brings us back to Judge Adelman’s footnote. Who knows how many defendants sentenced as career offenders really are not?