United States v. Zanada Amelia Moses

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 21, 2010
No. 09-14576
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00057-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZANADA AMELIA MOSES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 21, 2010)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
After pleading guilty, Zanada Amelia Moses appeals her 63-month
concurrent sentences for importation of heroin, in violation of 21 U.S.C. §§ 952
and 960(a)(1), (b)(2)(A), and possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(i). On appeal, Moses challenges the
district court’s computation of her criminal history score under the Sentencing
Guidelines. After review, we affirm.
In January 2009, Moses arrived at Hartsfield/Jackson International Airport
on a flight from Panama. During a pat down search, U.S. Customs and Border
Patrol officers discovered Moses had five packages of heroin, totaling 988 grams,
hidden on her body. Moses told authorities she was promised $20,000 to smuggle
the heroin from Panama to Baltimore, Maryland. Moses was charged with, and
pled guilty to, one count of importation of heroin and one count of possession
with intent to distribute heroin.
In calculating Moses’s criminal history score, the Presentence Investigation
Report (“PSI”) assigned one point for a May 2003 assault conviction in Maryland
and one point for an August 2006 theft conviction in Maryland. As to the 2006
theft conviction, Moses was caught stealing clothing from a JCPenney store in
Baltimore, Maryland. Moses’s two criminal history points resulted in a criminal
history category of II, which, with a total offense level of 27, yielded an advisory
guidelines range of 78 to 97 months’ imprisonment. The statutory mandatory
minimum for both counts was five years in prison.
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Moses objected to assigning one criminal history point for the 2006 theft
conviction, arguing that the theft conviction was an “uncounseled conviction”
obtained in violation of her Sixth Amendment right to counsel. Moses stressed
that, without the criminal history point for the theft conviction, her criminal
history category became I, making her eligible for a safety-valve reduction,
pursuant to U.S.S.G. § 5C1.2. Moses also sought a minor-role reduction, pursuant
to U.S.S.G. § 3B1.2.
At the sentencing hearing, the district court listened to audio recordings of
the proceedings in the Maryland District Court and reviewed court records relating
to Moses’s theft conviction. According to this evidence, Moses pled guilty to the
theft charge without counsel and was sentenced to “probation before judgment,”
with probation for one day “commencing today, to be unsupervised.” Moses was
also assessed a $100 fine (which she had to pay that day) and was ordered to “stay
out of all JCPenney Stores.”
The district court found that Moses did not knowingly waive counsel during
the Maryland District Court proceedings. Nonetheless, the district court overruled
Moses’s objection to the assignment of one criminal history point for the theft
conviction, concluding that the Sixth Amendment did not apply to Moses’s
Maryland theft conviction. The district court granted Moses’s request for a two-
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level minor-role reduction, which reduced her offense level to 25 and resulted in
an advisory guidelines range of 63 to 78 months’ imprisonment. The district court
imposed concurrent 63-month sentences on each count, at the low end of the
advisory guidelines.1
On appeal, Moses claims that she was entitled to counsel under the Sixth
Amendment during her Maryland District Court proceedings and, thus, her
uncounseled theft conviction was void and could not be counted for purposes of
calculating her criminal history score under the guidelines. Moses argues that the
mere threat of incarceration in a future probation revocation proceeding entitled
her to counsel.
The government, on the other hand, argues that the Sixth Amendment did
not apply to Moses’s theft conviction because Moses did not receive an
imprisonment sentence, but only a stand-alone probation sentence. See Alabama
v. Shelton, 535 U.S. 654, 662, 122 S. Ct. 1764, 1770 (2002) (concluding that
defendant’s sentence of thirty days in jail, suspended with defendant placed on
two years’ unsupervised probation, conditioned on payment of restitution of
$516.69, reparations of $25, a fine of $500 and court costs constituted an
1
The government has not appealed the district court’s minor-role reduction or its finding
that Moses did not knowingly waive counsel in the Maryland theft proceedings.
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imprisonment sentence triggering the right to counsel). The government asks this
Court to follow Fourth and Fifth Circuit decisions, which hold no right to counsel
attaches under Shelton to stand-alone probation sentences of one year and three
years, respectively. See United States v. Pollard, 389 F.3d 101, 105-06 (4th Cir.
2004) (one-year supervised probation sentence), cert. denied, 544 U.S. 912, 125 S.
Ct. 1618 (2005); United States v. Perez-Macias, 335 F.3d 421, 427-28 (5th Cir.)
(three-year unsupervised probation sentence), cert. denied, 540 U.S. 994, 124 S.
Ct. 495 (2003). Moses asks us to follow the dissent in the Fourth Circuit’s
decision in Pollard. See Pollard, 389 F.3d at 106-111 (Titus, J., dissenting).
Here, Moses was sentenced to a $100 fine (which was paid) and only one
day of unsupervised probation that commenced immediately. Under the particular
facts of Moses’s case, her probation sentence began and effectively ended the
same day. Therefore, there was no realistic threat of incarceration in future
probation revocation proceedings. Accordingly, we need not, and do not, resolve
the above Shelton issue addressed by the Fourth and Fifth Circuits. Rather, we
conclude that Moses has not shown that her Maryland theft conviction violated the
Sixth Amendment or that the district court erred in counting her Maryland theft
conviction in computing her criminal history score.
AFFIRMED.
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