United States v. Robert Allen Sanders ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2481
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Robert Allen Sanders, *
*
Defendant - Appellant. *
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Submitted: February 12, 2004
Filed: July 26, 2004
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Before BYE, HEANEY, and SMITH, Circuit Judges.
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BYE, Circuit Judge.
Robert Allen Sanders pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. 922(g)(1). As Mr. Sanders had three prior Iowa burglary
convictions, the Pre-sentence Report (PSR) recommended the district court1 sentence
him as a career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). Because Iowa had failed formally to admit the Nebraska-licensed lawyer
who represented him in one of the Iowa convictions, Mr. Sanders objected to the
1
The Honorable Ronald E. Longstaff, United States District Court for the
Southern District of Iowa.
PSR, arguing the conviction violated his Sixth Amendment right to counsel. The
district court overruled the objection, applied the ACCA, and sentenced Mr. Sanders
to 144 months of imprisonment. On appeal, he reiterates his collateral attack of the
predicate 1980 conviction, and we affirm.
I
In 1980, Mr. Sanders was charged with burglary in Mills County, Iowa. At that
time, he was already incarcerated in Nebraska for a parole violation on an unrelated
matter. After seeing attorney William J. Gallup's name in the paper and on television,
Mr. Sanders retained Mr. Gallup to defend him in the Iowa case. Mr. Sanders
pleaded guilty and was sentenced to 10 years of imprisonment.2 He apparently never
appealed or otherwise challenged this or his other two Iowa burglary convictions.
During the sentencing hearing in the instant case, Mr. Gallup testified he has
been licensed in Nebraska since 1964. Between 1964 and 1971, he worked as a city
prosecutor, deputy county prosecutor, and Assistant United States Attorney. In 1971,
Mr. Gallup entered private practice and has worked as a criminal defense attorney
since then. He has regularly defended cases in Iowa during his long career.
Mr. Gallup also testified that, while he was a member of the Nebraska bar in
good standing in 1980, he did not formally move to be admitted pro hac vice in Iowa
for Mr. Sanders's 1980 burglary case. He explained the judges in Mills County and
Pottawattamie County, Iowa, routinely forewent the formalities of admission for
Nebraska attorneys, particularly those with whom the courts were familiar, such as
himself. Apparently, this informality continues to this day.
2
Mr. Sanders acknowledges he benefitted from a plea agreement negotiated by
Mr. Gallup. The agreement allowed Mr. Sanders to serve his Nebraska and Iowa
sentences simultaneously.
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Matt Wilbur, the County Attorney for Pottawattamie County, corroborated Mr.
Gallup's testimony. In Mr. Wilbur's experience as County Attorney and private
practitioner, judges in both Iowa counties allow Nebraska lawyers to defend criminal
cases without going through the formal pro hoc vice procedure of associating with a
local attorney.
The district court ruled Mr. Sanders could not escape the application of the
ACCA through a collateral attack on his 1980 conviction. The court stated,
I think Mr. Gallup was an attorney at the time he represented Mr.
Sanders in Mills County. He was admitted to practice law in Nebraska
. . . Although I don't disagree that maybe it's not a wise practice to allow
out-of-state attorneys to practice without associating with local counsel,
I think it's routinely done by the courts in Iowa and also by this Court as
a federal court in Iowa.
Finding no merit to the collateral attack of the 1980 conviction, the court
applied the career-criminal enhancement under United States Sentencing Guidelines
(U.S.S.G.) § 4B1.4. This guideline applies in the case of a defendant subject to an
enhanced sentence under 18 U.S.C. § 924(e), and under § 924(e)(1) a defendant is
subject to an enhanced sentence if the instant offense of conviction is a violation of
18 U.S.C. § 922(g) and the defendant has at least three prior convictions for a violent
felony or serious drug offense. U.S.S.G. § 4B1.4, cmt. A burglary conviction
qualifies as a violent felony under section § 924(e)(2)(B). Because Mr. Sanders
pleaded guilty to violating § 922(g) and had three burglary convictions (that is, three
violent felonies for purposes of § 924(e)) the district court concluded the § 4B1.4
enhancement was applicable in his case.3
3
In reaching this conclusion, the district court did not engage in judicial fact
finding offensive to the holding in the United States Supreme Court's recent landmark
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). While the Court declared
unconstitutional any increase in penalty beyond the prescribed statutory maximum
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On appeal, Mr. Sanders disputes neither the court's conclusion his three Iowa
convictions qualify as violent offenses nor the finding Mr. Gallup was informally
admitted to practice in Iowa in the 1980 case. The question presented, therefore, is
whether representation by a licensed attorney not formally admitted to practice pro
hoc vice denies the defendant the right to counsel as to subject the conviction to
collateral attack.
II
This court reviews de novo a district court's interpretation of a sentence-
enhancing statute. United States v. Speakman, 330 F.3d 1080, 1081 (8th Cir. 2003).
In Curtis v. United States, 511 U.S. 485 (1994), the defendant attempted to
avoid an ACCA sentence enhancement, claiming he had received ineffective
assistance of counsel in one of his predicate convictions. First, the Supreme Court
found the statutory language of the ACCA did not authorize collateral attacks on
underlying convictions. Then the Court concluded a prior conviction was subject to
collateral attack on constitutional grounds only when the record of the conviction
demonstrated a failure to appoint counsel for an indigent defendant. Id. at 486. The
Court rejected Curtis's invitation to extend the right of collateral attack to claims of
ineffective assistance or other constitutional violations, finding these did not rise "to
the level of jurisdictional defect resulting from the failure to appoint counsel at all."
Id. (citation omitted).
based on facts not submitted to a jury and proved beyond a reasonable doubt, the
Court expressly exempted “the fact of prior conviction.” Id. at 2536. Here, the
statute defines burglary as a violent felony for purposes of 924(e). Thus, in
concluding Mr. Sanders's history contained three violent offenses, the district court
did not have to find burglary qualifies as a violent offense.
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Mr. Sanders acknowledges Curtis bars collateral attacks grounded on claims
of ineffective assistance of counsel. He contends, however, the failure to adhere to
formal pro hoc vice procedures is equivalent to the failure to appoint counsel.
This argument is factually and legally without merit. Mr. Sanders's 1980
conviction was rendered while he was represented by counsel licensed to practice
law, albeit in a neighboring state. Although Mr. Gallup had not gone through the
formal pro hoc vice admission procedure, the Iowa state court accepted his
representation, just as the two county courts (and indeed the federal district court)
have apparently done routinely for other Nebraska attorneys. As a factual matter,
then, Mr. Gallup practiced law in Iowa with the court's authority, bypassing the
formalities of admission only because the court itself saw fit to relax them.
In support of his argument, Mr. Sanders cites several cases in which courts
have held the failure to satisfy licensing requirements amounted to per se ineffective
assistance. Even if these cases could show ineffective assistance rises to the level of
“defect” required by Curtis, they are distinguishable from this case as they involved
defense counsel who were not licensed to practice law in any jurisdiction. See, e.g.,
People v. Felder, 391 N.E.2d 1274, 1276 (N.Y. 1979).
In contrast, Mr. Gallup was a licensed and experienced lawyer, who apparently
provided Mr. Sanders effective assistance, as evidenced by the plea agreement
allowing him to serve his Nebraska and Iowa sentences simultaneously. Indeed, Mr.
Sanders does not claim today, nor did he in 1980, that Mr. Gallup provided
substandard assistance or even that he would have provided more-effective assistance
by associating with local counsel. In short, the informality of the pro hoc vice
procedure did not work prejudice upon Mr. Sanders, and thus he was not, even
arguably, denied his Sixth Amendment right to counsel in the 1980 Iowa case.
Accordingly, we affirm the district court's sentencing decision.
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