United States v. Shazier , 179 F.3d 1317 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
07/02/99
THOMAS K. KAHN
No. 97-8889 CLERK
________________________
D. C. Docket No. 1:94-Cr-65-2-JEC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE SHAZIER, a.k.a. “Reese”,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 2, 1999)
Before HULL and MARCUS, Circuit Judges, and RONEY, Senior Circuit Judge.
RONEY, Senior Circuit Judge:
Maurice Shazier pled guilty to one count of a five-count indictment for
conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C.
sections 841(a)(1) and 846 and 18 U.S.C. section 2. He agreed to cooperate with the
government. He appeals his 97-month sentence alleging errors (1) in the number of
points included in his criminal history category for a prior state court conviction
from which he was pardoned and (2) in the imposition of a two-level increase of his
base offense level for his role in the offense. We affirm.
(1) Criminal History Category
Shazier contends the district court incorrectly determined his criminal history
category by assessing two points, instead of one, for a prior state court drug conviction
for which he had received a state pardon.
Shazier served six months imprisonment for cocaine possession in Louisiana
and a term of probation. After his probation had expired, he received a first-offender
pardon from the state restoring all rights to Louisiana citizenship, except the right to
receive, possess or transport a firearm. Because of the six-month sentence, the district
court added two points to Shazier’s criminal history under Sentencing Guidelines
section 4A1.1(b), which requires the district court to “[a]dd 2 points for each prior
sentence of imprisonment of at least sixty days not counted in (a).” U.S.S.G.
§4A1.1(b). Under subsection (a), three points are added for sentences exceeding one
year and one month. U.S.S.G. § 4A1.1(a).
Shazier argues that the state pardon for this offense amounted to a
“diversionary disposition” for which only one point should be added to his criminal
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history. This argument is based on Section 4A1.2(f) which provides that where there
is a “diversion from the judicial process” after a finding of guilt, the disposition is
counted as a sentence under Section 4A1.1(c). U.S.S.G. § 4A1.2(f). Section
4A1.1(c) provides for one point for sentences counted under that section.
This argument reflects a misunderstanding of the application of subsections
(a),(b), and (c) of section 4A1.1 and of what constitutes a “diversionary disposition”
under the guidelines.
First, Section 4A1.1(c), by its terms, only applies to sentences not already
counted in subsection (a) or (b). See U.S.S.G. § 4A1.1(c)(“Add one point for each
prior sentence not counted in (a) or (b), up to a total of 4 points for this item.”) It does
not remove from those sections sentences that are required to be counted thereunder.
Since the six-month sentence was already required to be counted under subsection (b),
subsection (c) is inapplicable to it.
Second, there is no suggestion in the guidelines or the commentary that a
sentence that is properly counted under subsection (a) or (b) because of the length of
imprisonment would be affected by the provisions of section 4A1.2(f), which deals
with “diversionary dispositions,” i.e., a “diversion from the judicial process.” There
was no diversion from the judicial process as far as the six-months imprisonment was
concerned. Shazier was not excused from serving that sentence. The only arguable
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diversion that the pardon had was the after-effect of the conviction. Although not
specifically defined, it is clear that this section does not apply to sentences where
confinement is imposed and served. The commentary relates that: “Section 4A1.2(f)
... reflects a policy that defendants who received the benefit of a rehabilitative
sentence and continue to commit crimes should not be treated with further leniency.”
U.S.S.G. § 4A1.2 comment.(n.9).
Third, the commentary provides specific instructions for pardons such as
Shazier received here:
10. Convictions Set Aside or Defendant Pardoned. A number of
jurisdictions have various procedures pursuant to which convictions may
be set aside or the defendant may be pardoned for reasons unrelated to
innocence or errors of law, e.g., in order to restore civil rights or to
remove the stigma associated with a criminal conviction. Sentences
resulting from such convictions are to be counted.
U.S.S.G. § 4A1.2 comment.(n.10).
The clear inference is that pardoned convictions should be counted in the same way
as they would be counted absent the pardon. There is no suggestion otherwise.
Neither the guidelines nor the commentary make any suggestion that such pardoned
convictions should be treated as “diversionary dispositions,” or counted in any way
other than provided by the guidelines as if there were no pardon, or that they should
be counted for any less points than if the pardon had not occurred. Shazier properly
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concedes that his conviction was not expunged by the pardon. See U.S.S.G. §
4A1.2(j)(“Sentences for expunged convictions are not counted.. . .”).
United States v. Stowe, 989 F.2d 261 (7th Cir. 1993), upon which defendant
relies is inapplicable for two reasons. First, the defendant there was placed on court
supervision and was not sentenced to any term of imprisonment, so that the sentence
could only be counted under section 4A1.1(c) at most. Second, the argument made
in that case, which defendant lost, was that the successful completion of his
supervision should be equated with expungement of the conviction under the
guidelines. We have found no case that suggests that the diversionary disposition
provisions of the guidelines would apply to a pardon of a served sentence specifically
counted under section 4A1.1(a) or (b).
(2) Offense Level
Rejecting the government’s suggestion of a four-level increase under
Sentencing Guidelines section 3B1.1(a) because of Shazier’s role in the offense, the
district court determined that Shazier was entitled to a two-level enhancement under
section 3B1.1(c) because the evidence indicated that Shazier was “some sort of
leader.” Under section 3B1.1(c), the district court is authorized to increase a sentence
by two levels if “the defendant was an “organizer, leader, manager, or supervisor in
any criminal activity . . .. ” U.S.S.G. § 3B1.1(c).
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None of Shazier’s arguments concerning the two-level enhancement merits
reversal. The sentencing court was not erroneous in finding that a section 3B1.1(c)
enhancement was appropriate based on the statements made by two cooperating co-
conspirators before Shazier’s arrest. The sentencing court found that “even if he
hadn’t cooperated, it was fairly obvious from the circumstances and the other
cooperation,” that Shazier was a leader. The cooperating statements given by Xavier
Stubbs and Kara Paul were obtained prior to Shazier’s arrest. Thus, there was no
violation of the government’s agreement not to use against Shazier any self-
incriminating information provided by him upon his guilty plea. The statements
indicate that Stubbs and Paul were recruited by and were delivering drugs for Shazier.
According to Paul, Shazier arranged for the pickup and delivery of the 26 kilograms
of cocaine and instructed her to deliver the vehicle with cocaine to Stubbs in Baton
Rouge, who would then deliver it to Atlanta. Stubbs stated that he and Shazier had
several telephone discussions about the pick up and delivery of the vehicle containing
cocaine, following which Shazier sent someone to pick up the vehicle. The statements
support a decision that defendant in some way supervised or managed the activities
of these two participants.
The contention that there was clear due process error in not informing the
defendant of the factual support for the enhancement is belied by the fact that counsel
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was provided and objected to the pre-sentence report upon which the government
based its recommendation for a four-level enhancement because of his role in the
offense.
AFFIRMED.
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